
Banksy's Fake Store Is an Attempt to Abuse Trademark Law to Avoid Copyright Law - kreinba
https://www.techdirt.com/articles/20191007/17291443141/banksys-fake-store-is-attempt-to-abuse-trademark-law-to-avoid-copyright-law.shtml
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gkoberger
I had two problems.

First, I really didn't like the tone of the card company. They're selling
someone else's work (whether legal or not), and then were condescending toward
the person who made it. They say they're just trying to honor Banksy, but they
paint him as an out-of-touch rich asshole.

Second, it's hard to know for sure, but I think this analysis misses the
bigger point... I feel like opening a small shop that isn't real is very
Banksy-esque, and likely is more of a statement on trademark than him actually
trying to enforce a trademark. This is clearly just an exhibit + marketing.
(It's a glass storefront, after all)

~~~
jtbayly
> they paint him as an out-of-touch rich asshole.

That’s because that’s how he has treated them. Lying about them and what they
are doing is nasty. That’s what Banksy did.

~~~
bertan
Banksy doesn’t want anyone to be profiting from his own work and he has every
right to do so if copyright is used. Why would that mean he should accept
their royalty offer? They can just stick to nature photos on their cards. How
rich Banksy is nothing to do with this.

What the card company is doing is to take advantage of his desire to be
anonymous and make money from his work.

~~~
jtbayly
I think you mean Banksy doesn’t want anybody but himself profiting off his
work. Agreed, that’s his right through copyright. But he refuses to use it.
That’s the whole point of the article.

The other point is that Banksy is _lying_ about this small business and what
they are doing. This is an objective fact. He claims they sued him. They
didn’t. He claims they are a big corporation. They aren’t.

------
dangus
The whole situation is interesting at the very least.

The only comment I have is that I have to fault the article for making a lot
of assumptions and leaps to conclusions on Banksy’s intentions, it sort of
unilaterally declares that Banksy is selling out and cheating the system.

But what they want is far simpler: they don’t want other people claiming
they’re Banksy, and they want to remain anonymous.

The article gets upset at Banksy as a corporate sellout as if they opened up a
line of art pieces for sale at Walmart or Target. What Banksy did is more akin
to opening up a UPS Store mailbox in order to have an address on file.

~~~
jtbayly
> they don’t want other people claiming they’re Banksy

No. This is obviously not the problem. Nobody at that greeting card company
was claiming to be Banksy. The problem is that they are making _money_ off of
a Banksy work of art without his permission.

His behavior is quite clearly protecting his financial interests in his own
work. That’s actually the only explanation that makes sense. The other option
being that he’s opposed to anybody making money off his art, including
himself. Nothing he has done in the last year has indicated the latter to be
the case.

~~~
djmips
Banksy making money or not is moot. He probably just didn't want some grubbers
making money from his work.

------
weinzierl
>> Having once claimed that copyright is for losers, Banksy has been ramping
up his legal position for several months now. At the end of 2018, the artist’s
handling service Pest Control took action against an Italian company that
organised an exhibition, The Art of Banksy—A Visual Protest, for Milan’s Mudec
Museum.

>> In February this year, the judge ruled in favour of Banksy’s request for
all merchandise bearing his name to be removed from the museum’s shop, but
promotional materials using his name were allowed to remain. The judge noted
that the documents filed in the proceedings showed a limited use of the Banksy
brand.

Banksy should have GPL'd his works. Seriously.

Everyone creating artwork derived from Banksy's works, including merchandise
articles, would be required to provide the sources. So if for example an
Italian Museum decides to sell flower bomber T-shirts everyone could just use
the design files to order at CafePress. This would promote the unrestricted
dissemination of his works while putting natural limits on the
commercialization by others.

~~~
aritmo
You probably mean "Creative Commons", not GPL. GPL is for code.

But in either case, both CC and GPL are based on copyright, therefore cannot
use.

~~~
kabacha
> GPL is for code.

Citation needed. GPL can work for anything.

~~~
duskwuff
The text of the GPL describes the subject of the license as a "Program" and
refers to it as having "machine-readable source code" (or "Corresponding
Source" in GPLv3) and an "object code or executable form". It's difficult to
interpret what any of this would mean in the context of an artistic work.

------
cookie_monsta
I can kind of get this. He wants to remain anonymous but he doesn't want to
see his work on every shonky piece of merch in every dollar store in town.

Both of those seem like reasonable desires. Nobody's disputing that he's the
creator after all. It looks to me like copyright law is broken, but I guess
parliament won't be rushing to fix it to plug gaps for edge cases involving
anonymous street artists.

What surprises me more is that there isn't a wave of faux Banksys flooding the
market - sure the artist has a style but it's not absolutely unreproducible.
And if, in legal terms, nobody's Banksy doesn't that mean that we're all
Banksy?

~~~
WilliamEdward
How is banksy going to protect their work if they cannot even prove they made
it? I don't even believe all the 'banksy' originals over the years came from
one person, it's more likely a group.

Honestly it's frustrating to watch an anonymous entity decorate the city while
still expecting people not to use their work. The way banksy has established
themself as a figure would indicate they want the art to be free and open for
all to use. You cannot have your cake and eat it too, which is to say you
cannot be anonymous and trademark your artwork.

~~~
celticninja
For the same reason that Satoshi Nakamoto is likely one person and not a
group, so is Banksy. too hard to keep a secret like that for as long as it has
been. I'm surprised we haven't seen more people claim to be Banksy, as we have
with Satoshi but perhaps it's easier to profit from pretending to be SN than
it is by pretending to be Banksy.

Three may keep a Secret, if two of them are dead

------
ummwhat
The article implicitly suggests Banksy is making money off his artwork with
word choice like "won't let anyone else profit off it". The idea being to
paint him as a sellout and a hypocrite.

But is it true? By everyone's admission he isn't selling shoddy kitsch like
post cards and fridge magnets. All that's left to sell is the original works,
and to the best of my knowledge the people who can actually sell those are
usually the owner of the wall itself. He pulled that stunt with the Sotheby's
auction. Did he actually get any money after that self destructed? Does anyone
anywhere actually have an estimate on how profitable the Banksy operation is?

~~~
TomMckenny
Indeed. And if we assume he does not want money to be made from his works by
him _or other people either_ then it is all pretty consistent.

Indeed it's a strange world if he, on principle, refuses to profit by his work
but other people must be allowed to.

~~~
loons2
> Indeed it's a strange world if he, on principle, refuses > to profit by his
> work but other people must be allowed to.

That exact situation exists in many free software situations... doesn't it?

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makomk
The website attached to the store is astoundingly corporate. For example, it
contains a long and clearly custom-written TOS with classic gems like this:
"Our site must not be framed on any other site, nor may you create a link to
any part of our site other than the home page."

~~~
unilynx
That's just a copy paste from someone else's TOS.

~~~
celticninja
Good artists borrow, great artists steal -- Pablo Picasso

~~~
fortran77
Here's the story on that quote. It's not Picasso

[https://quoteinvestigator.com/2013/03/06/artists-
steal/](https://quoteinvestigator.com/2013/03/06/artists-steal/)

~~~
celticninja
To be fair I saw it at a Banksy exhibition where Picasso was crossed out and
replaced with Banksy.

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nullc
Huh.

The potential non-copyrightability of graffiti I understand but I am failing
to understand the anonymous ownership issue. Why he cannot transfer the
copyright for the work to a corporation which enforces the copyright? -- it
isn't like he needs to register the work before transferring it to the
company, the berne convention assures that.

~~~
droithomme
Graffitti is copyrightable.

In the US copyrightable works can be copyrighted by an anonymous or
pseudononymous creator. There's even a box to check if the creator is
anonymous.

[https://www.copyright.gov/eco/help-
author.html](https://www.copyright.gov/eco/help-author.html)

Perhaps in the EU anonymous works can not be copyrighted?

~~~
anticensor
They can, but you cannot remain anonymous before a court in Europe.

~~~
nullc
You can't in the US either, but the creator wouldn't need to appear before a
court, the copyright holder would.

~~~
beerandt
The copyright holder needs to prove he's the copyright holder, which is
difficult to do without a paper trail to the creator.

------
stanfordkid
Banksy pretty much ripped off Blek Le Rat — so much of his work is completely
derivative. Plus you could argue he did much of his work in the public domain.
If I graffiti an image in a public place, haven’t I kind of given away
copyright to it?

Given Banksy’s anti-capitalist, semi-anarchist stance, and utilization of
public property for his own fame, I can’t think of any better means for him to
honor himself than to allow people to rip off his work freely.

I certainly can see the case against those who misappropriate bad work to his
name — artistic integrity is important. There is also nothing wrong with him
wanting to make money. But I see no moral problem with selling knick knacks
with banksy imagery on it.

FWIW I love his art and his moral stance. Just can’t have your cake and eat
it.

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bufferoverflow
> _We legally photograph public graffiti and make it available to you_

Is that how the copyright works in the UK??? Like I can photograph anybody's
art and just sell prints? That doesn't sound right.

~~~
Doctor_Fegg
No, it isn't.

The closest that UK copyright law gets is that there's an exemption for
photographs of "sculptures, models for buildings and works of artistic
craftsmanship, if permanently situated in a public place or in premises open
to the public". (See section 62 at
[https://assets.publishing.service.gov.uk/government/uploads/...](https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/308729/cdpa1988-unofficial.pdf)
.)

But Banksy's pictures are just straight "artistic works". There's no need to
class them as "works of artistic craftsmanship" and I don't believe any court
would do so.

The infringers are either deliberately misreading copyright law or simply
ignorant of it. I suspect the latter.

~~~
jtbayly
What is the difference between works Of artistic craftsmanship and artistic
works?

His works are generally permanently situated in a public place. I would think
that taking a picture of any random public wall with graffiti on it is legal.
But you seem to be saying that there are two kinds of art, and that the kind
that is “worse” gets protection, but the better kind didn’t get protection.
Very odd.

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tinus_hn
Pretty cheesy. You can’t use trademark law like this which clearly is the
reason they didn’t try this against a company that would have the resources to
handle a baseless lawsuit.

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BenGosub
I have always been suspicious at Banksy, it always seemed to me like corporate
plot to generate hype. This article really aligns with my intuition. I am very
surprised of all the responses here. I expected that this of all places will
look through the fake.

------
minermansion
FYI just another take on Banksy Fake Store

Hacking a Banksy with Bash and Varanid:
[https://news.ycombinator.com/item?id=21368691](https://news.ycombinator.com/item?id=21368691)

------
rossdavidh
If this article was intended to make the card company look good, and Banksy
look corporate and bad, it has failed.

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noja
Eh? Someone else is selling his art.

~~~
gohbgl
Nobody stole his million pound painting and sold it.

~~~
cookie_monsta
If you're talking about the one with the monkeys at Sotheby's he didn't own it
at the time either

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krsdcbl
Tldr; this article seems highly biased and tries to paint Banksy as an evil
corporate mastermind who tries to damage a small home business by ways of
shady litigation - while the issue at hand looks more to be that said business
tries to make profit off pictures he won't print as merch and prohibiting this
is complicated legally without disclosing one's true name.

The article plays on sympathy for the "poor little home run shop" versus
Banksy ressorting to "evil lawyers". Feel like it's grossly misrepresenting
the matter on purpose.

~~~
jtbayly
But which one has a big corporation? The article clearly and seemingly
correctly points out that Banksy is a much bigger corporation and that
corporation is lying through its teeth about what is happening.

