Is the freezer just a freezer?

Recently, Banksy has announced his new artwork “Valentine’s day Mascara” in the English city of Margate. However the freezer has been dismantled by the local council, hours after its discovery.

Can the council’s actions be considered an infringement of an ‘author’s’ moral rights? 

The issue of street art` copyright protection is a constant topic of discussion, because it has not been finally regulated by law in many countries. 

Copyright protection is governed by the Copyright, Designs and Patents Act 1988 (the “CDPA”) in the United Kingdom. First of all, Chapter Four is devoted to the protection of authors’ moral rights.

Under Section 80 (1) of the CDPA the author of a copyright literary, dramatic, musical or artistic work, and the director of a copyright film, has the right in the circumstances mentioned in this section not to have his work subjected to derogatory treatment.

Under Section 80 (2) (a) of the CDPA “treatment” of a work means any addition to, deletion from or alteration to or adaptation of the work. 

Under Section 80 (2) (b) of the CDPA the treatment of a work is derogatory if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director.

However, is the freezer part of Banksy’s work?

Obviously, the freezer had been laying there discarded there for months. I dare say that it was even out of order. But it’s not certain 🙂  This means that the freezer can be considered an abandoned item. Without going into the nuances, as a general rule, whoever finds and takes possession of an abandoned item acquires property rights over that item.

“Valentine’s Day Mascara”, like Banksy’s other artworks, carries a social message and idea. The freezer is a part of the artist’s idea of the original artwork. It could be argued that the freezer has become part of the artwork by virtue of accession. And the author has moral rights. 

Returning to the provisions of the CDPA, the local council subjected the artwork to treatment by removing a piece of it.  As a result, the artwork lost its originality and intent. The drawings remained on the adjacent wall, which now cannot be viewed in its entirety due to the lack of a freezer. And this – could prejudicial the author’s reputation.

Therefore, I believe that the local council’s actions can be considered an infringement of the author’s moral rights. However, Banksy cannot protect his copyrights because he still remains anonymous. But more about that another time.  

A more important question is, was Banksy’s work prejudicial to the reputation of the local council?

They could or should have removed the freezer earlier. But that’s a whole other story 😉

Anyway, the freezer has already been returned. Which begs the question – is the Council now guilty of illegal fly tipping of useless rubbish!