Banksy at centre of legal battle back on display in Folkestone

Banksy lovers have cause for mass celebration this Friday 18 September when ‘Art Buff’ will be returning to Folkestone.

The street artwork depicting a woman gazing at an empty plinth first appeared during the 2014 Folkestone Triennial, ‘Lookout’, with Banksy stating that it formed “part of the Triennial. Kind of”. The largest exhibition of newly commissioned work presented in the UK, the Triennial invites artists to use the town of Folkestone as their gallery and create new art in its public spaces reflecting issues affecting Folkestone and the wider world.

‘Art Buff’ appeared on the back wall of an amusement arcade leased to a company named Dreamland Leisure Limited. A short six weeks later, it was cut out of the wall by Dreamland without the landlord’s permission and shipped to the USA to be auctioned at Art Basel Miami and then on to a gallery in New York. Dreamland said that it was the intention for proceeds from the auction to be donated to a charity in aid of Jimmy Godden, a Folkestone businessman who died in March 2012 and whose family own Dreamland.

The removal of ‘Art Buff’ sparked numerous public protests and a social media storm demanding the return of the work to Folkestone. When it failed to sell in the USA, arts charity the Creative Foundation, now known as Creative Folkestone, began legal proceedings against Dreamland to secure the painting’s return with the assistance of Boodle Hatfield’s specialist art law team. The Creative Foundation -v- Dreamland Leisure Limited & Ors [2015] EWHC 2556 (Ch) was one of the first cases dealing with ownership of street art and in particular Banksy.

Two issues were in dispute:

  1. Whether it was reasonable for Dreamland as tenant of the amusement arcade to remove the Banksy in order to comply with its repairing obligation; and
  2. Whether ownership of the mural once removed became vested in Dreamland.

1. Repairing Obligation

The Creative Foundation argued that the Banksy became part of the land owned by the landlord when it was sprayed on the wall of the amusement arcade. Dreamland did not have the right to cut the wall of the building to remove and treat ‘Art Buff’ as its own, but when it did, legal title to the artwork became vested in the landlord, meaning Dreamland committed trespass and conversion.

Dreamland counter-argued that it cut into the walls to remove the painting in order to comply with its repairing obligations as tenant and the parts it removed became vested in it as the tenant. It further argued that its chosen method of repair (removal of the painting) was reasonable compared with any alternative (cleaning and/or overpainting).

Arnold J in the High Court was ‘narrowly persuaded’ that Dreamland was complying with its repairing obligation when it removed the Banksy. However, he did not agree that removal was the most reasonable option.

2. Ownership

In the absence of any direct authority dealing with this point, Arnold J held that it was necessary to imply a term into the lease that the mural became the landlord’s property when it was cut from the wall. He reasoned that:

  1. By default, every part of a property belongs to the landlord so that the tenant has the burden of proving there is an implied term that ownership of part of the property transfers to it instead;
  2. Just because Dreamland was discharging its repair obligation did not mean such a term was implied;
  3. Even if such a term was implied in relation to ownership of waste or chattels with minimal value this does not mean it is implied with regard to chattels with substantial value such as a Banksy painting; and
  4. Where a third party’s actions increase the value of chattels (i.e. Banksy spray-painting a mural on your wall), the landlord has a better right to this increase in value than the tenant.  

The Creative Foundation won custody of ‘Art Buff’ and it was brought back to Folkestone in 2015 where it has remained in storage ever since. The decision provides a useful precedent in the field of landlord and tenant law. It has important implications for tenants who may be surprised to learn that the landlord will most likely have legal title to chattels with substantial material value removed during repairs. Tenants cannot assume they will be able to claim chattels like a Banksy (if they are lucky enough to have one painted on their wall) as a quid pro quo for complying with their repairing obligation.

To celebrate the installation of ‘Art Buff’ in the courtyard of 69 Old High Street Folkestone from Friday 18 September, Creative Folkestone will also launch a new art project. Celebrating creativity and community, ‘The Plinth’ project will see ten empty plinths placed in various locations around Folkestone for the public to use to display their own “lockdown creations, artistic talents and special objects”. Everyone who displays their work is invited to take a picture and share it on social media to form part of a big online exhibition.

Three specially commissioned plinths with works by local artists Malcolm Allen, Maureen Jordan and Tomas Poblete will also be positioned around Folkestone for the public to enjoy. One performance plinth painted on the floor of Payers Park by street artist Toze One will host a curated programme of dance, music and spoken word.

By returning the Banksy to the Creative Quarter and presenting The Plinth we hope that we can inspire others to get creative this autumn”, enthused Creative Folkestone chief executive, Alastair Upton. He hopes ‘The Plinth’ will provide a creative boost for the town of Folkestone, which has seen the postponement of the Folkestone Triennial to 2021 and the closure of its Quarterhouse theatre due to Covid-19. “After everything that has happened this year we are proud to be offering space for people to get creative once again”, Upton said.

‘The Plinth’ project will run until Sunday 8 November 2020.

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