“Copyright is for losers”: Banksy’s own statement used against him in EU trademark dispute

Last week the European Union Intellectual Property Office (EUIPO) issued a decision declaring that the trademark owned by the street artist Banksy for his image of Laugh Now But One Day We’ll Be in Charge (2002), which depicts a monkey holding a sandwich board, is invalid.

The company Pest Control, who authenticate Banksy’s primary market works of art, filed for an EU trademark of this work in November 2018. However, the following year greeting card company, Full Colour Black, opposed the trademark. Full Colour Black specialize in street art greeting cards and has previously opposed the trademark of Banksy’s Flower Thrower.

The work was commissioned in 2002 by a nightclub in Brighton. It has since become one of Banksy’s most iconic works of art. Earlier this month, a version of the work made of spray paint and emulsion on paperboard was sold at Christie’s for $2.1 million. Christie’s highlighted the poignant political and social message behind the work, noting that “the apes act as stand-ins for the working class; their repetitive signage is a warning for those who might take advantage of laborers or the victims of unchecked capitalism.”

The EUIPO’s ruling highlights the unusual nature of this type of art. They commented that the original work “was free to be photographed by the general public and has been disseminated widely,” and that, “Banksy permitted parties to disseminate his work and even provided high-resolution versions of his work on his website and invited the public to download them and produce their own items.” The ruling further indicated that Banksy had chosen “for the most part to paint graffiti on other people’s property without their permission rather than to paint it on canvases or his own property. He has also chosen to be very vocal regarding his disdain for intellectual property rights, although clearly his aversion for intellectual property rights does not annul any validity acquired rights to copyright or trademarks.”

Aaron Wood, who represented Full Colour Black, told the World Trademark Review that the decision by the EUIPO came in part as a result of the “public comments of Banksy and his lawyer”.  The Judge agreed, stating that, “by their own words they admit [it] was not genuine trade mark use in order to create or maintain a share of the market by commercialising goods, but only to circumvent the law.” Further, in Banksy’s own book, Wall and Piece (2007), he said that “copyright is for losers”.

A further reason cited by the EUIPO in this ruling, and in the previous case regarding the trademark of Flower Thrower, was Banksy’s ongoing decision to remain anonymous. The ruling commented that: “It is also noted that as Banksy has chosen to be anonymous and cannot be identified this would hinder him from being able to protect this piece of art under copyright laws without identifying himself”. Banksy’s identity has been the subject of much speculation and intrigue, and it seems his anonymity may not have helped him in this case!

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