Tenants Owning Street Art? Don't Bank On It

The rules governing ownership of an artistic work are well-established in UK copyright law but what if that copyright owner doesn't own the physical surface on which their work is created, for example in street art? The question of who owns the title to this physical surface was recently considered in a summary judgment decision involving street art attributed to Banksy (a mural painting known as "Art Buff", painted on a building in Folkestone).

The case ( The Creative Foundation v Dreamland Leisure Limited and others [2015] EWHC 2556) arose when the building tenant (the Defendants) removed a layer of the leased building's wall which contained the mural. The focus of the dispute was whether the tenant or the landlord (who had assigned the relevant rights to the Claimant) owned the removed layer of the wall. (Copyright in the mural as an artistic work was not in dispute: this prima facie belonged to Banksy.)

The tenant argued that it owned this title with reference to: (i) various covenants in the lease relating to upkeep of the building by the tenant; and (ii) an assertion that an implied term in the lease gave the tenant ownership of anything removed from the building as part of this upkeep. The judge (Arnold J) held that the tenant had no real prospect of success in establishing either of these points and delivery up to the Claimant was ordered. In short:

The tenant's argument - that the layer of the wall had to be removed to avoid becoming a shrine for Banksy followers - was not convincing. Consequently, the tenant was not...