Banking on anonymity

LOOKING ASKANCE - Atty. Joseph Gonzales (The Freeman) - September 20, 2020 - 12:00am

Banksy, the street artist whose identity has remained successfully secret, has gained notoriety in not just the art world, but also the legal community. His secret identity is making it difficult to apply the laws on trademark and copyright, that center on protecting the authorship of a work of art.

These laws were designed to help the creator be recognized as the genius whose brains and creativity led to an artwork, so that, rather than being ripped off by unscrupulous copycats, that creator could safely have those works attributed to him or her.

But what if, as in the case of Banksy, the author or creator isn’t known? How do we protect authorship? Why do we even need to protect it, and attribute the works to that author or creator, when that genius has inconveniently disappeared? (Well, his disappearance might be convenient - but only to him.)

This quandary left legal scholars scratching their heads and led to court battle royales, even as Banksy continued (apparently) to file for intellectual property protection in many jurisdictions.

See, there were other entities who also tried to make moolah from Banksy’s instantly-recognizable works, such as a small company called Full Colour Black. That company makes greeting cards, and it was particularly interested in Banksy’s image of a kerchief-wearing dude throwing flowers instead of a bomb in Jerusalem (I’m sure you’ve seen it).

The 2005 piece, entitled “Flower Thrower”, became an iconic symbol for peace efforts in that conflict-ridden area (which is also an area where that same year three demonstrators at a gay parade were stabbed). The flower-bomber is rendered in black and white, but the flowers themselves are presented in full color, leaving some bloggers to speculate that the work is also meant to advocate for LGBTQ harmony.

Banksy is widely acknowledged to be the creator of Flower Thrower, and so he trademarked it. But Full Colour Black wanted to make greeting cards from the graffiti - and sued in court to be able to do that.

So, from the chambers of the European Union intellectual property court - a blow to Banksy. The EU panel ruled that Banksy couldn’t really be identified, without question, as the owner of the works, precisely because his identity was hidden. How could the panel then recognize his trademark if his authorship (or copyright) was unsure?

With this reasoning, the panel then invalidated Banksy’s trademark - meaning anyone, even you or I, can now use that image for any purpose. Even as screen savers, or as profile pictures, or even on cheesy mugs and useless bookmarks, and then sell those gewgaws to less-creative sheep. And Banksy cannot stop us --unless he comes out and reveals himself.

The thing is, public graffiti is illegal in some countries, so once his identity becomes known, Banksy could be prosecuted in those jurisdictions where he has (literally) left his mark. There is a very low probability Banksy will risk this, and so we will probably not find out who he is just yet.

Banksy won’t be able to be the rebel that he is before the court. He cannot do things in the manner he likes them: with his identity hidden, and yet, with the ability to claim that certain random works are his, and that no one else can therefore profit from those works.

But for a man who has scorned the capitalist nature of the art world (remember his work that got auctioned and then immediately got shredded as soon as the hammer fell?), this ruling seems apt. This will mean a sharing and forced redistribution of wealth to the common populace --which is all he ever wanted, right? Right?

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