Street Fight: Banksy, Theft, and the Resale Market

The Guardian reported on Wednesday that a highly publicized Banksy mural, Kissing Coppers, had just been sold at auction in Miami for a price of $575,000.00. According to The Argus, the work had been removed from the exterior wall of a pub in Brighton and transported to the US back in 2011. Though it’s not clear who was responsible for the expatriation, the piece was consigned to auction by gallerist Stephen Keszler. He claims to have played a hand in the sale of 11 Banksy pieces in similar fashion over the course of the past three years.

News of the sale comes less than two weeks after a report that “concierge firm” The Sincura Group would be removing another Banksy work, Girl and Balloon, from the exterior of an East London printing shop and exhibiting it for private sale. I put “concierge firm” in quotes because it’s not entirely clear to me what that term means - and apparently I’m not the only one. This will mark the second time that Sincura has in their own words “recovered” a Banksy piece for the purposes of sale; Slave Labour, their first foray into the business last June, brought a reported sales price of $1.1M. 

Keszler’s and Sincura’s joint sales model has been a source of controversy in the art world for as long as dealers and gallerists have been “recovering” street art. In each case, the works being offered have been literally excised from the public domain and pressed into service as a private asset. Street art lovers are quick to label the process a thinly veiled act of theft. Their argument seems to hinge on the idea that the works “belong” to the general population by virtue of being created by the artist for public view. That, after all, tends to be the driving ethos of street artists: Take art straight to the masses rather than hiding it away in elitist galleries. Purify creative pursuits by separating them from any possible commercial context. Bring the power back to the people. Cue fist pumps.

However, there’s a huge difference between a populist manifesto and a sound line of legal reasoning. At least in the US, any court would obliterate the above argument like high tide hitting a shoddy sandcastle. 

Here’s the inconvenient truth: The Banksy works in question were all painted on surfaces owned by people or entities other than Banksy. The great paradox at the heart of street art is that the moment it appears on another party’s property without that party’s consent, it also instantly becomes that other party’s property in the eyes of the law. Yes, the work is intended for the general public’s consumption. But the artist’s intent is irrelevant. Whoever owns the “canvas” - whether that means the wall of a building, a storefront’s roll-up security door, or the exterior of a car - suddenly owns the artwork. Why? Because the artwork is not a separate entity; legally, it’s nothing more than an elaborate defacement of the original property. It’s a fascinating wrinkle to street art: The very act of producing it doubles as instant transfer of ownership.

The result is that the property owner is empowered to do whatever she wishes with the artwork, provided that action is not itself criminal. So it was completely legal for the owner of the print shop in East London to have covered Girl and Balloon with boards for the past 12 years, as the BBC story mentions. And it’s just as legal for the owner of any building anointed by Banksy to sell the work to a gallerist like Keszler, a nebulous dealer like Sincura, or anyone else she wants. As long as the “recovery” of the piece is agreed to by the building’s owner (likely in exchange for either a flat fee or a percentage of profits), the parties doing the extracting and selling are operating in a legal green zone. Cue attorneys heading to happy hour.

Banksy, Girl and Balloon (2002). Partially covered by building owner.

This is equally true whether the work was sanctioned in advance by the building’s title-holder or not. I saw no mention of Banksy or his representative(s) approaching any of the property owners for approval of Kissing Coppers, Girl and Balloon, or Slave Labour. But interestingly, the opposite was (allegedly) true in the case of former gas station owner Eytan Rosenberg. He claims to have granted permission to a trio of street artists, including someone believed to either be or represent Banksy, to tag works on the exterior of his Los Angeles Valero station sometime in 2008. Rosenberg later sold the building christened by these artists. But as a term of the sales agreement with his buyer, he removed the Banksy work from the exterior and in late 2013 sold the piece at Julien’s Auctions in
Los Angeles, fetching a reported final price (with premium) of $209,000.00. 

My art-loving side wishes that the Banksy pieces would have remained publicly viewable forever. But my business-conscious side acknowledges that Keszler, Sincura, and Rosenberg simply recognized opportunities and capitalized on them. And it’s inarguable that those opportunities were free and clear from a legal standpoint. 

But what about from an ethical perspective? Is there an argument that Banksy was somehow harmed by the removal and sale of his work? In other words, even if this whole “recovery” process is lawful, is the outrage surrounding it still justified?

I don’t think so. And here’s why. 

I mentioned earlier that Banksy and his cohorts voluntarily relinquish all ownership rights to their work as soon as they create it. Part and parcel to this, they also do not produce the work for financial compensation. They want the public to see it, but the public isn’t paying them for the privilege in any traditional sense. So there’s no basis to suggest that Banksy is being financially injured by the likes of Keszler and Sincura. Yes, they’re profiting off of his work, but their actions don’t undermine his revenue stream because the work never created a revenue stream for him in the first place - or at least not one connected to its continued availability to the public.

I say that because I  suspect that Banksy is being commissioned by private parties to create at least some of his public works. But even if that’s the case, the only sensible way for him to structure those deals would be to collect his fee in full by the time the work is completed. Linking funding to the work’s longevity would be a self-defeating move.

The reason is that all street artists also know in advance that every piece they produce has a life span numbered in low digits. Property owners around the world normally work to expunge unauthorized graf work as quickly as it appears. That impulse is the dramatic engine of the entire Spy vs. Spy game at the genre’s origin. Sure, a property owner could decide to leave up a street art piece tagged on her asset. Maybe it’s out of personal fondness. Maybe it’s because she sees its allure to potential customers. But it’s at least as likely that she will just want the damn thing gone as fast as possible. In that case, all it takes to wipe out the work is about five minutes, a two dollar roller, and one coat of paint.

Banksy, “Slave Labour” (2012). Image credit: 12 oz. Prophet.

All of the above leads me to this question: If Banksy never hoped to be paid for his work and never believed it would be eternally on display, then what does it matter whether the pieces are painted over by property owners or cut out and privately sold? Transactions like this only increase his exposure to the public and further bolster his status. The public can be upset about the sales on the grounds that they lose access to the work. But again, erasure was almost inevitable anyway.So then why do street art lovers seem so much more upset about the pieces’ being auctioned rather than just wiped out?

The only answer I can identify is, once again, a general aversion to big money’s interest in the arts. The scandal seems to arise from the notion that profit-seekers have found a way to monetize a form of art that was designed to be utterly proletarian. In the process, one of the only realms of creativity still unsullied by the grubby hands of the elite have been ripped down into the swamp of commerce like all the others. Cue the banshee shriek of art purists. 

Not surprisingly, I’m unsympathetic to that perspective. Instead, I find the remarkable aspect about the controversy to be this: What these entities did with Banksy is not nearly as eyebrow-raising from a legal or ethical perspective as what even the world’s most reputable gallerists and dealers regularly do with artists’ works on the secondary market. 

I’ve written about this facet of the industry before, so I won’t rehash every last detail about the economics and dubious legality of fine art resale here. The core point is that, almost without exception, an artist only receives compensation from a work’s initial sale - no matter how many times it changes hands afterwards, or at what price. Think of it like selling a car. Porsche gets paid by the first buyer and only the first buyer (assuming she pays in full), even if the vehicle is then subsequently resold every week until a new Ice Age wipes out humanity’s use for the sports car.

Fine art resale practices often lead to gargantuan discrepancies between an artist’s earnings and a gallerist’s earnings for the same piece. For example, when I was in Miami for Art Basel a few months ago, I heard from a private dealer about a rising artist he knew who was being investigated by the IRS on suspicion of tax evasion. The reason? Strapped for cash, he’d been selling works out of his studio at bargain prices, only to see some of the buyers flip them at auction months later for many multiples of what they’d paid. The IRS had apparently caught wind of the auction results somehow and wanted to know why the artist was only reporting a small fraction of what they believed he should have been netting. (Obviously, this raises the question of why the artist wasn’t consigning his own work to auction, but that’s a quagmire that requires its own post.)

Banksy, “Flower Thrower.” Image credit: Popular Resistance.

What separates these Banksy situations from fine art’s traditional secondary market is the specifics of the first “transaction.” Banksy didn’t create his assets for profit; studio artists working in the traditional commercial channels did. That makes the auctioning of Kissing Coppers et al less fraught to me than the auctioning of a Jasper Johns painting for millions of dollars when he may have originally sold it for three hundred bucks back in 1958 to pay his rent.

By no means am I suggesting that studio artists are strictly in the game for money. But if the artists’ rights contingent wants to rally around the issue of “theft” and the resale market, I would encourage them to shift their scope away from a handful of street art transactions and onto gallerists’ daily practice of reselling the work of studio artists at all levels of the price spectrum worldwide. Otherwise, protesting Keszler and Sincura for their dealings is like cursing the universe for the death of a pet goldfish; street art is still rarely long for this world, and the cause of each piece’s inevitable death seems irrelevant. Far better to work toward improving the lot of the artists actively attempting to earn a living on every work they create than to erupt over the disappearance of works never meant to generate returns for the creator in the first place. Otherwise, the curses spewing out sound less like defenses of the artist than like still more agony over the market’s ever-expanding reach.