“Copyright is for Losers”
The exhibition “The Mystery of Banksy, A Genius Mind, An Unauthorized Exhibition” is currently showing in Munich and is well worth seeing.
Unfortunately, I cannot show you the pictures (graffiti, street art) here; but we could share a few thoughts about the legal questions connected with such an exhibition, if you like.
1. An “Unauthorized Exhibition”, is such a thing permissible at all?
Banksy, you know, wants to remain anonymous. As the subtitle of the exhibition suggests, he has not authorized (approved) this exhibition of his works.
Is it then permissible to organize such an exhibition at all? What could speak against the permissibility?
Banksy once wrote, “Copyright is for Losers.”
It is reported that he has nothing against people photographing his works for private use. What he does not like, however, and what he has even taken legal action against at times, is the commercial exploitation of his works by unauthorized people. With this attempt, however, he has already suffered shipwreck once.
In order to assert copyright claims against the commercial exploitation of his works by unauthorized persons, the author must prove his copyright and in this context also reveal his identity. But Banksy doesn’t want that. He wants to remain anonymous.
Moreover, the exhibition does not show his originals, but rather reproductions, probably mostly photographs. As I have already explained in another article, it is permissible to photograph works of street art (graffiti) that are permanently affixed to public streets and places, and then also to commercially exploit one’s own photos, e.g. to publicly exhibit them for an entrance fee. This is covered by the so-called freedom of panorama (Section 59 Copyright Act) or works in public places.
b) Trademark law
A motif can also be protected by trademark law.
Banksy, for example, had his motif of the “flower thrower” protected via a London company by registering a so-called Union trademark. However, this trademark was cancelled again in September 2020. Why? Because trademarks are cancelled again if they are not really used by the owner to identify goods or services. A trademark registration solely for the purpose of excluding others from using the trademark – as Banksy apparently wanted to do – is not permissible. One must also want to use the trademark oneself.
c) Right of personality, privacy
One could still think of prohibiting an “Unauthorized Exhibition” because it violates the personal rights (Persönlichkeitsrecht) of the person concerned.
Lieschen Müller (Jane Doe), for example, does not normally have to tolerate her life being dragged into the public eye against her will and put on display in the form of a film (biopic) or an exhibition.
But that is not the case here. Banksy is a phenomenon of our time that can be reported on. And the exhibition at issue here does not inadmissibly encroach on his private life or even intimate sphere, but is largely limited to presenting reproductions of his works. Apart from that, the exhibition is a tribute to the artist that puts him in a very positive light.
Even without Banksy’s permission, such an Unauthorized Exhibition is, in my opinion, legally permissible.
This also applies to the sale of mugs, bags and T-shirts with Banksy’s motifs in the store attached to the exhibition (Exit through the Gift Shop).
2. Are visitors allowed to photograph the Banksy works exhibited in the “Unauthorized Exhibition” themselves and then commercially exploit (sell) these photos?
a) Rights of Banksy
Well, Banksy would probably not take action against this (see point 1 a and b above).
b) Rights of the photographer
At the original locations, it is possible to photograph the Banksy works, if they are still there, within the framework of the freedom of panorama/works in public places (see above number 1 a, third paragraph). To do this, however, you would have to travel halfway around the world and sometimes to areas where you might not want to travel because it seems too dangerous or too burdensome.
This effort is taken up by the photographers who have photographed the graffiti at their original locations, and by the organizer of the exhibition, who presents the works – properly curated – for a reasonable entrance fee in Munich, Heidelberg and Berlin.
In this way, the photographer has acquired his own copyright to his photographs (Section 2 (1) No. 5 UrhG) or at least a photographic right under Section 72 UrhG, which he licenses to the organizer.
And this (copy)right of the photographer(s) would be violated if the photos were (commercially) photographed and exploited by others. Of course, the freedom of panorama does not apply to the photographing of photos in an exhibition.
Is it not allowed to take photos at all? Well, you are allowed to. Among other things, for private use (§ 53 UrhG) or in the context of editorial reporting (§ 50 UrhG). In any case, as long as the organizer does not prohibit it by contract (or in his general terms and conditions) by virtue of his domiciliary rights (Hausrecht, right of possession).
The result may sound somewhat absurd at first glance:
Although the artist Banksy himself has said that copyright is something for losers, and although Banksy would very likely not take action against an infringement of his copyright by an exhibition visitor, one is nevertheless not allowed to photograph his works reproduced in the exhibition and then commercially exploit one’s own photos, as this would violate the photographer’s copyright or the rights of the organizer.
Nevertheless, a visit to the exhibition is worthwhile in any case. And maybe even the genius mind Banksy himself would like it. Who knows. …
(Well, he probably wouldn’t have liked the Gift Shop so much. But what can you do? The wife wanted a mug (- the one with the balloon girl), the daughter wanted a T-shirt (“Follow your Dreams – Cancelled”) and I thought the “Book to the exhibition” was quite good, too. And it would be even better, of course, if the proceeds went to Banksy, who then uses the money for a charitable project). …
Copyright may be for Winners after all.