This article is taken from Paul Howcroft’s blog Art Law London
A couple of years ago we in the Fladgate art team put our heads together to consider the potential legal problems in trading in street art and produced this article: Street art: the legal issues
It was a topical subject because of the auctioning of Slave Labour, which I covered in my post Selling Banksy street art
Now it is topical again with Friday’s High Court judgment in the case concerning Banksy’s mural called Art Buff. The artwork had been painted in Folkestone on the wall of an amusement arcade called Dreamland. The owners of the business, the Godden Family, had the artwork cut out under the supervision of an art dealer Robin Barton who specialises in such trade, under the name Bankrobber. It then came into the hands of the New York based Kessler Gallery who brought it to Art Basel in Miami where it was exhibited with a price of US$720,000.
Meanwhile, local forces gathered in Folkestone, a town not over-endowed with art. Proceedings were brought by a local charity, Creative Foundation, which has the objective of regenerating the town through creativity and the arts. The issue relied on was one that was anticipated in our article, in which we said:
In law, land includes buildings and fixtures, and once paint is on a wall, it becomes part of the land. Therefore, as soon as the artist creates his work, it belongs to the land owner. The owner for this purpose will be either a freeholder or leaseholder, and their respective rights and obligations regarding the art will depend on the terms of the lease, which would almost certainly have been drafted without any thought of street art.
It seems that in the Art Buff case, the Goddens were leaseholders, that is tenants. The artwork having become part of the building, and therefore part of the land, and absent any other agreement, it belonged to the ultimate freeholder, who presumably was willing to co-operate with Creative Foundation. The charity then succeeded in getting an injunction from the court for the returning of the work to Folkestone.
Paul Howcroft, Partner, Fladgate LLP (firstname.lastname@example.org)