Take the medium of graffiti-it can be a beautiful thing unless of course it is your building or property that has been the subject of the spray-can Tag obsessed perpetrator.
Just this year, two Chancery Court judges in the UK had cause to examine the case of an artwork attributed to the equally celebrated and notorious Banksy, namely "Art Buff" which formed a legal dispute between the commissioning Charity, The Creative Foundation and the occupiers of the building on which it had been mounted and spray-painted, one Dreamland Leisure.
It was not a very involved dispute, in fact a bit boring and boiled down to the respective positions of a landlord and tenant and who had the legal ownership of the mural.
Alledgedly, during the night of 28 September 2014, during the Folkestone Triennial, a public art project organised by the Creative Foundation, the Bristolian Banksy spray-painted a mural on timber boarding attached to the external flank wall of an amusement arcade occupied by tenants, Dreamland.
Such is the clamour for Banksy works and the prospect of a good capital gain from the sale of one that at the beginning of November 2014, presumably marking the end of the Festival, Dreamland decided that the section of the wall with the wood backed mural was to be removed and shipped to an art fair in Miami with the intention of selling it for the best possible price.
Whether the lot number for "Art Buff" at the Auctioneers did not get enough publicity, there was some doubt as to its authenticity or people, simply, did not like or appreciate it wood backed painting went unsold and as a fallback it was transferred to the Keszler Gallery in New York.
In legal speak (which is a mystery to me) it appears that "having taken an assignment of the causes of action relating to the mural from Dreamland’s landlord, the commissioners of the piece, Creative Foundation sought an order declaring that it owned the mural and requiring it to be delivered up, pursuant to section 2 of the Torts (Interference with Goods) Act 1977"
There were two issues for the judiciary to resolve in the case.
The first was that Dreamland argued that it was entitled to remove the mural (because it was graffiti) in order to comply with its repair obligations as covenanted with the landlord. This in my mind represents a bit of an hypocrisy in that Dreamland had been keen to capitalise not on a bit of vandalism but a work of art.
Secondly, Dreamland contended that, having undertaken repairs to the building, it owned the chattels removed as part of such repair works. Talk about reducing art to an obligation!
As to Dreamland’s repairing defence, the presiding judges accepted it was not fanciful to suggest that the spraying of the mural rendered the wall on which it was sprayed ‘out of repair’. Thus, despite the mural not adversely affecting the repair or condition of the wall, and there being no obligation upon the tenant to repaint or redecorate during 2014, Dreamland’s repairing obligations were said to be engaged.
A key factor in the case, however, was in the way by which Dreamland exploited the whole situation.
Normal procedure for nuisance graffitti removal would be scrubbing down with a prescribed chemical solution or sealing and applying a fresh coat or multiple layers of paint so as to obscure the damage. There was a difference though in that the picture was on a sheet of boarding affixed to the masonry. Dreamland however chose a significantly more invasive method of dealing with the graffiti, which involved an interference with the fabric of the building. This, the court held, could not be justified as reasonable compliance with Dreamland’s repairing obligations. Who were the Defendants trying to kid as it was abundantly clear that Dreamland’s actions were not wholly motivated by a need to repair the building.
More interesting, though, was the Court decision about ownership of the mural.
It is common ground that it is necessary to have covenants in a commercial premises lease to address the question of what happens to parts of the building (whether they be structural, decorative, or landlord’s fixtures) which are removed or replaced as part of repairing obligations.
What was in issue was whether such chattels should be regarded as the landlord’s or the tenant’s.
On the one hand, the Creative Foundation accepted that if the chattels were of no value, Dreamland was both obliged and permitted to dispose of them. But, on the other, the Creative Foundation said that if the chattels were of more than negligible value, Dreamland ought to deliver them up to the landlord.
Although the Judges acknowledged that tenants ought not to be required to obtain valuations of parts removed during repairs (here comes more of that gobbledygook legal-eese) or to negotiate with landlords over disposal of such parts, they did not find that these considerations assisted Dreamland. They found that the default position was that every part of the building belongs to the lessor. It was therefore for Dreamland to justify any implied term that finally transferred ownership of some part of the building. While it was possible to justify an implied term permitting Dreamland during the course of repairs to remove (and possibly dispose of) items formerly forming part of the building, this did not necessitate a term transferring title. Certainly, no officious bystander would say that a chattel with substantial value removed during repairs would obviously belong to the tenant.
Accordingly, it was ruled that the Creative Foundation owned the mural and was entitled to its return.
There has, after meeting no doubt the exhorbitant legal costs of the action, been something of a happy ending for campaigners for public art.
The legal owners, Creative Foundation, are planning to publicly display in its Folkestone birthplace the six foot square "Art Buff".
For a bit of plywood it appears to have survived its forcible removal to Miami for material gain, art collector snub ,temporary exile in New York and repatriation to Kent, UK, pretty well.
That bodes well for a lot of Banksy's expansive catalogue of works be they on wood, plaster, brick, plastic or any other material to survive to be appreciated by future generations. Now what was that about someone selling a door with a Banksy picture on it..........................................................?
(Inspired by a conversation with my Uncle David-incidentally not that far from Banksy's Bristol)
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