03 Mar 2016
Tim Maxwell and Becky Shaw discuss one of the first cases dealing with the ownership of street art and explain its implications for landlords and tenants.
The Creative Foundation -v- Dreamland Leisure Limited & Ors  EWHC 2556 (CH) concerned the law of property as opposed to intellectual property.
Due to the risk of exposing himself to liability for criminal damage, neither Banksy nor his agent will formally authenticate his street art. As a result, no issues of copyright and, in particular, moral rights – such as being able to prevent the destruction, alteration or possible removal of the artwork – arose.
The Creative Foundation, a charity dedicated to the regeneration of Folkestone, Kent, through creativity and the arts, organises a three-yearly event showcasing the town through public displays of artworks. During the third Triennial in September 2014, the Banksy work known as Art buff appeared on the back wall of an amusement arcade overnight. Great excitement ensued when it appeared on Banksy’s website with the strapline "Part of the Folkestone Triennial, kind of".
Then just over a month after the artwork first appeared, Dreamland, the tenant of the amusement arcade, arranged for the mural to be cut from the wall, without the landlord’s knowledge or permission. It was sent to the US where it was offered for sale.
The wall on which the Banksy appeared was part of a property where Dreamland had a 20-year lease. Dreamland had the benefit of a demise, including the external and structural walls of the premises. The owner of the freehold was a separate company whose only role in the proceedings was to provide an assignment of their rights to the work and any accompanying causes of action to the Creative Foundation.
In response to the public backlash, the Creative Foundation began legal proceedings with the aim of securing the return of the artwork to Folkestone.
Once it was secured, the Creative Foundation applied for summary judgment on the question of ownership and delivery up of the artwork.
The Creative Foundation’s position can be summarised as follows:
- Once the paint was sprayed on to the building it became part of the land.
- During the term of a lease, the tenant has a right to use the premises according to that lease, which gives it a qualified right to possession but no right to use part of the demised premises for other purposes.
- Neither the tenant nor anyone else has a right to cut the walls of the premises to remove and treat as its own the bricks and cement forming part of the premises, and the lease contained an express prohibition against this.
- On being cut from the premises, the bricks and cement (along with the paint sprayed on them) regained their character as chattels, and title to them is vested in the landlord.
- therefore, in cutting the walls of the premises and removing the artwork the tenant committed the torts of trespass and conversion.
In contrast Dreamland’s position can be summarised as follows:
- That an artwork by Banksy should be treated the same as any other graffiti.
- That a term should be implied into the lease that if the tenant is cutting the walls in compliance with its repairing obligations then the parts removed become vested in the tenant and they are therefore entitled to any value.
- That the tenant had taken appropriate advice and that its chosen method of compliance (removal) was reasonable when compared with the other means open to it (e.g. cleaning and/or overpainting).
In giving his judgment, Arnold J was “narrowly persuaded”, based on the evidence before him, that the mural, as graffiti, needed to be removed to avoid the wall attracting further graffiti.
Arnold J went on to consider whether Dreamland’s method of removal was reasonable and had been assessed objectively.
The judge concluded: “Dreamland had no reasonable prospect of establishing that it was entitled, let alone obliged, to remove the mural in compliance with its repairing obligation.”
The second and more important issue concerned the ownership of the mural, being a valuable part of the demised premises, affixed when sprayed on to the wall, that was removed by a tenant in the course of carrying out its repair obligations.
Arnold J concluded that the term to be implied was that the mural became the property of the landlord.
Four reasons were given for the decision:
- The default position is that every part of the property belongs to the landlord, and the tenant has the burden of showing that an implied term should transfer ownership of part of the building to it instead.
- The fact that the tenant is discharging its repairing obligation does not justify an implied term that it acquires ownership of such a chattel, only that it has permission to remove and possibly dispose of it.
- Even if a term may be implied with respect to the ownership of waste or chattels with minimal value, it does not follow that the same term should be implied for chattels with substantial value.
- Arnold J held that where the value is attributable to the spontaneous actions of a third party, the landlord had the better right to that windfall than the tenant.
Arnold J therefore granted summary judgment on the Creative Foundation’s claim for delivery up of Art buff.
The case provides a useful precedent in an area where direction is strangely lacking, and will obviously have application to other situations involving street art. Existing artwork on the premises is likely to be dealt with under the specific terms of the particular lease. However, the case will have wider application in the field of landlord and tenant law concerning the extent of the implied permission for the tenant to remove items from premises during repairs.
Banksy’s Art buff has now been returned to Folkestone and is being restored before being put back on public display.
Tim Maxwell is Partner and Becky Shaw Solicitor in the art law team at Boodle Hatfield.
This is an edited extract. Full details of the case are in the Personal Propery section of the March/April issue of the Property Journal.
Image copyright: PA via Associated Press
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