We covered the story of the mural that had been painted by Banksy and then was possibly stolen from a North London wall and was due to be sold at auction in the US. The story has rumbled on and has even made it to the news in the US.
Well, it turns out that it has been withdrawn from sale from the auction. Why is not quite clear. We are told that “Although there are no legal issues whatsoever regarding the sale of lots six and seven by Banksy, [Fine Art Auctions Miami] convinced its consignors to withdraw these lots from the auction and take back the power of authority of these works” which certainly leaves some questions unanswered.
One point that may arise (and we stress may we are just going off the news reports) is whether, if it is right that “Banksy gave that piece of art to our community, and people came from all over London to see it” would the owner of the wall be guilty of theft if they removed the painting? We are not suggesting that this is the case at all, it’s just an interesting question.
Well, ‘property‘ for the purpose of the Theft Act is defined as ‘ money and all other property, real or personal, including things in action and other intangible property’. The physical painting on the wall would count as property for this purposes.
But if Banksy painted a painting on my wall, why could anyone stop me from doing what I want with it? It’s my wall after all? This seems to have occured to the man who ran the auction house who said :”He does something on other people’s property without asking. The owner of the property can do whatever they want with it“. Is that right?
‘Pretty much yes’ is the answer. Theft can only apply to property that ‘belong to another‘ and this is defined in the Act. The two subsections of most relevance (pr would appear to be of relevance) would be (1) and (3):
(1) Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest).
(3) Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or proceeds shall be regarded (as against him) as belonging to the other.
Does Banksy have any legal interest in the mural once it’s completed? Given that he would have been acting illegally (committing criminal damage) in painting the mural, it’s not likely.
It should be noted that the ‘obligation’ in s5(3) is a legal (rather than a moral) obligation. Here, whilst there may be a moral duty to have left the mural for the benefit of the public, there would not appear to be any binding one.
The more interesting question perhaps is whether Banksy can do anything about it? If a person does some graffiti then that is a criminal offence (albeit that the ‘victim’ would be pretty chuffed at having a Banksy unlawfully put on their house).
Given that, if he went back and cleaned it off, he would just be putting it back where it was, no crime there. However, once the owner of the wall took it down, does this make a difference? Could Banksy have turned up in Florida and wiped the mural clean?