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Banksy's Fake Store Is an Attempt to Abuse Trademark Law to Avoid Copyright Law
- deleted 7y ago[deleted]
- nullc 7y agoHuh. The potential non-copyrightability of graffiti I understand but I am failing to understand the anonymous ownership issue. Why he cannot transfer the copyright for the work to a corporation which enforces the copyright? -- it isn't like he needs to register the work before transferring it to the company, the berne convention assures that.
- droithomme 7y agoGraffitti is copyrightable. In the US copyrightable works can be copyrighted by an anonymous or pseudononymous creator. There's even a box to check if the creator is anonymous. https://www.copyright.gov/eco/help-author.html https://www.copyright.gov/eco/help-author.html Perhaps in the EU anonymous works can not be copyrighted?
- anticensor 7y agoThey can, but you cannot remain anonymous before a court in Europe.
- cormacrelf 7y agoYou understand what? Graffiti is copyrightable. He can’t transfer it because that (in general) must be done in writing and with a signature. Any target of copyright litigation will demand to know who is purported to have assigned copyright, so just putting “Banksy” there won’t hold up. Those are the evidentiary issues.
- noja 7y agoEh? Someone else is selling his art.
- gohbgl 7y agoNobody stole his million pound painting and sold it.
- cookie_monsta 7y agoIf you're talking about the one with the monkeys at Sotheby's he didn't own it at the time either
- oh_sigh 7y agoCan I not sell a photo of a new York City street scene if one of banksys pieces is visible in the background?
- krsdcbl 7y agoThat really depends on what the picture represents in the end: how you describe it, yes. If you just take a front-up shot of the graffiti only then it would be hard to argue that you were depicting the city/scenery and not trying to reproduce the art.
- weinzierl 7y ago>> Having once claimed that copyright is for losers, Banksy has been ramping up his legal position for several months now. At the end of 2018, the artist’s handling service Pest Control took action against an Italian company that organised an exhibition, The Art of Banksy—A Visual Protest, for Milan’s Mudec Museum. >> In February this year, the judge ruled in favour of Banksy’s request for all merchandise bearing his name to be removed from the museum’s shop, but promotional materials using his name were allowed to remain. The judge noted that the documents filed in the proceedings showed a limited use of the Banksy brand. Banksy should have GPL'd his works. Seriously. Everyone creating artwork derived from Banksy's works, including merchandise articles, would be required to provide the sources. So if for example an Italian Museum decides to sell flower bomber T-shirts everyone could just use the design files to order at CafePress. This would promote the unrestricted dissemination of his works while putting natural limits on the commercialization by others.
- aritmo 7y agoYou probably mean "Creative Commons", not GPL. GPL is for code. But in either case, both CC and GPL are based on copyright, therefore cannot use.
- weinzierl 7y agoCC-SA (share-alike) would be in the same spirit and more suitable for artwork I guess, but I'm not very familiar with it. Why can't he use copyright? I didn't quite follow this line of thinking in the original article as well. As far as I understand it copyright per se is automatic (nowadays), so you don't have to file for it. So this doesn't prevent him from staying anonymous. Tradmarks on the other hand have to be registered. How does he hide his anonymity in this case? Now enforcing his rights is a completely different matter. He certainly can't hide his name from the courts then and it might even become public. But in this case there is no difference between a copyright lawsuit and a trademark lawsuit.
- cookie_monsta 7y agoThe way that I understand it, a trademark can be registered to a CPL (UK equivalent to an LLC) but copyright, if registered, has to go to a person. Although I believe that some states in the US allow anonymous copyright via LLC. I am far from being a lawyer, but this makes sense to me - a trademark is designed to be associated with a brand, copyright is designed to designate a person/group as something's creator.
- sbhn 7y agoBanksy is a trademark.
- gkoberger 7y agoI had two problems. First, I really didn't like the tone of the card company. They're selling someone else's work (whether legal or not), and then were condescending toward the person who made it. They say they're just trying to honor Banksy, but they paint him as an out-of-touch rich asshole. Second, it's hard to know for sure, but I think this analysis misses the bigger point... I feel like opening a small shop that isn't real is very Banksy-esque, and likely is more of a statement on trademark than him actually trying to enforce a trademark. This is clearly just an exhibit + marketing. (It's a glass storefront, after all)
- jtbayly 7y ago> they paint him as an out-of-touch rich asshole. That’s because that’s how he has treated them. Lying about them and what they are doing is nasty. That’s what Banksy did.
- bertan 7y agoBanksy doesn’t want anyone to be profiting from his own work and he has every right to do so if copyright is used. Why would that mean he should accept their royalty offer? They can just stick to nature photos on their cards. How rich Banksy is nothing to do with this. What the card company is doing is to take advantage of his desire to be anonymous and make money from his work.
- jtbayly 7y agoI think you mean Banksy doesn’t want anybody but himself profiting off his work. Agreed, that’s his right through copyright. But he refuses to use it. That’s the whole point of the article. The other point is that Banksy is lying about this small business and what they are doing. This is an objective fact. He claims they sued him. They didn’t. He claims they are a big corporation. They aren’t.
- gkoberger 7y agoI don't see any proof that Banksy or his legal team lied... all I see is quotes from the card company of what Banksy (or his team) allegedly said, and I have no way of knowing if they're direct quotes or them just "summing it up". They never said the legal team called them "a big corporate group", just that they were trying to paint them as such. There's a difference. (Plus, their own homepage refers to themselves as an "internationally operating greeting card publisher".) Maybe it's moot, but... yes, Banksy makes a lot of money off his work sometimes. But there's some things worth mentioning: 1. He also spends a lot of money on his work (look at Dismaland, which was only $1/ticket). 2. Much of his high-priced work is sold by private collectors and he doesn't get the money 3. Or, the one he did sell directly was art itself, and the sale was part of the art (it got shredded) 4. And lastly, he donates it. Like all the profits from this store are getting donated. I wouldn't necessarily confuse "there's a lot of money surrounding Banksy" with "Banksy is rich".
- cookie_monsta 7y agoI can kind of get this. He wants to remain anonymous but he doesn't want to see his work on every shonky piece of merch in every dollar store in town. Both of those seem like reasonable desires. Nobody's disputing that he's the creator after all. It looks to me like copyright law is broken, but I guess parliament won't be rushing to fix it to plug gaps for edge cases involving anonymous street artists. What surprises me more is that there isn't a wave of faux Banksys flooding the market - sure the artist has a style but it's not absolutely unreproducible. And if, in legal terms, nobody's Banksy doesn't that mean that we're all Banksy?
- carlmr 7y ago> And if, in legal terms, nobody's Banksy doesn't that mean that we're all Banksy? Most certainly not, I can barely draw a stick figure.
- ForHackernews 7y agoNeither can he. Just get a stencil.
- deleted 7y ago[deleted]
- mehwoot 7y agoThe major art dealers who sell his work know who he is. They keep the secret because it's profitable.
- WilliamEdward 7y agoThis obviously sounds like something that could be possible, but equally possible is that there is no banksy and it is simply a marketing tactic, where banksy was originally one person that evolved into random artworks from many people.
- celticninja 7y ago
- minermansion 7y agoFYI just another take on Banksy Fake Store Hacking a Banksy with Bash and Varanid: https://news.ycombinator.com/item?id=21368691 https://news.ycombinator.com/item?id=21368691
- makomk 7y agoThe website attached to the store is astoundingly corporate. For example, it contains a long and clearly custom-written TOS with classic gems like this: "Our site must not be framed on any other site, nor may you create a link to any part of our site other than the home page."
- unilynx 7y agoThat's just a copy paste from someone else's TOS.
- celticninja 7y agoGood artists borrow, great artists steal -- Pablo Picasso
- fortran77 7y agoHere's the story on that quote. It's not Picasso https://quoteinvestigator.com/2013/03/06/artists-steal/ https://quoteinvestigator.com/2013/03/06/artists-steal/
- Jamwinner 7y agoThats almost better...
- celticninja 7y agoTo be fair I saw it at a Banksy exhibition where Picasso was crossed out and replaced with Banksy.
- ummwhat 7y agoThe article implicitly suggests Banksy is making money off his artwork with word choice like "won't let anyone else profit off it". The idea being to paint him as a sellout and a hypocrite. But is it true? By everyone's admission he isn't selling shoddy kitsch like post cards and fridge magnets. All that's left to sell is the original works, and to the best of my knowledge the people who can actually sell those are usually the owner of the wall itself. He pulled that stunt with the Sotheby's auction. Did he actually get any money after that self destructed? Does anyone anywhere actually have an estimate on how profitable the Banksy operation is?
- cookie_monsta 7y agoI feel the same way. Just because he's not commercializing up to the Holy shouldn't mean that he doesn't get a say in wether his work gets cheapened like this. And as for the "we're making his work more accessible" argument from the gift card sellers - isn't that what every pirate ever has said to justify profiteering from other people's creation?
- TomMckenny 7y agoIndeed. And if we assume he does not want money to be made from his works by him _or other people either_ then it is all pretty consistent. Indeed it's a strange world if he, on principle, refuses to profit by his work but other people must be allowed to.
- loons2 7y ago> Indeed it's a strange world if he, on principle, refuses > to profit by his work but other people must be allowed to. That exact situation exists in many free software situations... doesn't it?
- mnem 7y agoThis piece has an intersting look at how he makes money: https://www.artspace.com/magazine/art_101/close_look/how-does-banksy-make-money-or-a-lesson-in-art-market-economics-55352 https://www.artspace.com/magazine/art_101/close_look/how-doe...
- bufferoverflow 7y ago> We legally photograph public graffiti and make it available to you Is that how the copyright works in the UK??? Like I can photograph anybody's art and just sell prints? That doesn't sound right.
- cookie_monsta 7y agoI think the point is that the artist does not want to claim copyright.
- Spivak 7y agoRelated question. Can you just photograph a building a sell photos without a license from the architect?
- tom_mellior 7y agoThat depends on where you are: https://en.wikipedia.org/wiki/Freedom_of_panorama https://en.wikipedia.org/wiki/Freedom_of_panorama Interestingly, for the UK this seems to claim full freedom of panorama, seemingly contradicting the law quoted in your sister comment at https://news.ycombinator.com/item?id=21369261 https://news.ycombinator.com/item?id=21369261
- Doctor_Fegg 7y agoNo, it isn't. The closest that UK copyright law gets is that there's an exemption for photographs of "sculptures, models for buildings and works of artistic craftsmanship, if permanently situated in a public place or in premises open to the public". (See section 62 at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/308729/cdpa1988-unofficial.pdf https://assets.publishing.service.gov.uk/government/uploads/... .) But Banksy's pictures are just straight "artistic works". There's no need to class them as "works of artistic craftsmanship" and I don't believe any court would do so. The infringers are either deliberately misreading copyright law or simply ignorant of it. I suspect the latter.
- jtbayly 7y ago
- krsdcbl 7y agoTldr; this article seems highly biased and tries to paint Banksy as an evil corporate mastermind who tries to damage a small home business by ways of shady litigation - while the issue at hand looks more to be that said business tries to make profit off pictures he won't print as merch and prohibiting this is complicated legally without disclosing one's true name. The article plays on sympathy for the "poor little home run shop" versus Banksy ressorting to "evil lawyers". Feel like it's grossly misrepresenting the matter on purpose.
- cookie_monsta 7y agoAgreed. Particularly shoddy journalism implying that the artist got 12.2M for a painting when it was actually sold by a private collector.
- jtbayly 7y agoBut which one has a big corporation? The article clearly and seemingly correctly points out that Banksy is a much bigger corporation and that corporation is lying through its teeth about what is happening.
- dangus 7y agoThe whole situation is interesting at the very least. The only comment I have is that I have to fault the article for making a lot of assumptions and leaps to conclusions on Banksy’s intentions, it sort of unilaterally declares that Banksy is selling out and cheating the system. But what they want is far simpler: they don’t want other people claiming they’re Banksy, and they want to remain anonymous. The article gets upset at Banksy as a corporate sellout as if they opened up a line of art pieces for sale at Walmart or Target. What Banksy did is more akin to opening up a UPS Store mailbox in order to have an address on file.
- tomxor 7y ago> they don’t want other people claiming they’re Banksy, and they want to remain anonymous. Sounds like a perfect case for public key cryptography, although it doesn't help with duplicates - but duplicates help his work sell anyway. Would be interesting to see how it could be applied to something visual that is reproduced in non-pixel perfect ways.
- dangus 7y agoIf I were a famous artist I’d definitely be signing my works with a public key!
- jtbayly 7y ago> they don’t want other people claiming they’re Banksy No. This is obviously not the problem. Nobody at that greeting card company was claiming to be Banksy. The problem is that they are making money off of a Banksy work of art without his permission. His behavior is quite clearly protecting his financial interests in his own work. That’s actually the only explanation that makes sense. The other option being that he’s opposed to anybody making money off his art, including himself. Nothing he has done in the last year has indicated the latter to be the case.
- dangus 7y agoYeah I should have said people claiming to have Banksy’s blessing, or at least omitting the fact that they don’t.
- rossdavidh 7y agoIf this article was intended to make the card company look good, and Banksy look corporate and bad, it has failed.
- stanfordkid 7y agoBanksy pretty much ripped off Blek Le Rat — so much of his work is completely derivative. Plus you could argue he did much of his work in the public domain. If I graffiti an image in a public place, haven’t I kind of given away copyright to it? Given Banksy’s anti-capitalist, semi-anarchist stance, and utilization of public property for his own fame, I can’t think of any better means for him to honor himself than to allow people to rip off his work freely. I certainly can see the case against those who misappropriate bad work to his name — artistic integrity is important. There is also nothing wrong with him wanting to make money. But I see no moral problem with selling knick knacks with banksy imagery on it. FWIW I love his art and his moral stance. Just can’t have your cake and eat it.
- tinus_hn 7y agoPretty cheesy. You can’t use trademark law like this which clearly is the reason they didn’t try this against a company that would have the resources to handle a baseless lawsuit.
- BenGosub 7y agoI have always been suspicious at Banksy, it always seemed to me like corporate plot to generate hype. This article really aligns with my intuition. I am very surprised of all the responses here. I expected that this of all places will look through the fake.