Why IP rights paint a difficult picture for street artists

In the wake of controversy surrounding Banksy’s recent London mural, AJ Park’s Thomas Huthwaite and Eloise Calder delve into the challenges street artists face in protecting their works and rights.

This article was originally published in Managing IP.

In a recent mural on the Royal Courts of Justice building, in London, street artist Banksy took aim at the legal system, depicting what appears to be a judge striking a protester with a gavel.

This is not the elusive artist’s first run-in with the law – in fact, most street artists have faced legal challenges, including in relation to their intellectual property (IP).

As street art is typically created in public spaces, there is a common misconception that it is part of the public domain and therefore without rights. However, IP rights can be surprisingly powerful, meaning there are still important IP considerations for street art.

‘Copyright is for losers’

Although Banksy is famous for declaring that “copyright is for losers”, there have been several instances in which his company, Pest Control Office, has claimed copyright ownership and then struggled to prove or enforce those rights, due to Banksy’s anonymity. Copyright law requires the identification of an author, which complicates matters for Banksy and street artists like him who have never revealed their true identity. Anonymity makes it impossible to assert formal ownership or assignment of copyright.

The Art of Banksy exhibition, the world’s largest collection of original and authenticated Banksy works, has been showing in major cities globally. With his name in the title, displaying hundreds of his works, and selling a range of prints and merchandise featuring this work, observers might assume that this exhibition was curated or endorsed by Banksy. However, this is not the case, and without clear copyrights to rely on, determining legal grounds for challenge can prove difficult.

Of course, many other street artists do not face this dilemma, whose works are likely to be protected by copyright.

Trademarks as an alternative

In place of copyright, Banksy has sought trademark protection in various jurisdictions, with varied results.

In Europe, Banksy has obtained some trademark registrations at the EUIPO, but his attempts to maintain those registrations have been complicated. Several trademarks, including ‘Flower Thrower’ and ‘Laugh Now’, have been cancelled for bad faith due to no intention to use, as Banksy had publicly confirmed these trademark registrations were intended only to prevent others from commercially using the works.

The decision to cancel ‘Laugh Now’ was eventually reversed, with the EUIPO Board of Appeal indicating there was no reason to find that Banksy intended to circumvent copyright or to use the trademark registrations for an improper purpose.

Again, other artists have succeeded in obtaining and maintaining trademark protection in relation to specific goods or services, such as contemporary artist Shepard Fairey or the legacies of Frida Kahlo and Salvador Dali. If properly used and commercialised, it would be possible to renew and maintain these trademarks in perpetuity.

The law is therefore quite comfortable providing artistic works with both copyright and trademark protection.

Loss of control

Street artists like Banksy will often choose to create work in urban environments, and sometimes areas that are politically charged, to amplify social, political, humanist or satirical messages. Doing so often inspires significant media coverage and social engagement.

However, the downside of placing works in easily accessible public spaces is that artists run the risk of their works being altered, removed, photographed, or reused by others.

Creating an artwork on a building without authorisation may be vandalism, and the owner is therefore well within their right to remove it – a risk that street artists are aware of, and that has in some cases brought more attention to certain pieces.

Bankys’s recent mural at the Royal Courts of Justice was promptly scrubbed from the building’s façade, leaving an eerie shadow of the former mural. That too was later removed.

The picture becomes more complicated when removal of the work occurs without the consent of the building owner. In 2013, Banksy’s mural ‘Slave Labour’ was removed from the wall of a London store and put up for sale in the US. It was later returned after protests from the community.

Of course, there are also situations in which street art has been commissioned. Many mural artists have had to grapple with their works being featured in photography or film, which is particularly concerning when also commercially exploited. For example, in 2019, Wellington-based mural artist Xoë Hall discovered that her commissioned mural was being used without her permission on a cheap calendar sold in major retail stores. This type of unauthorised copying and commercial use is almost certainly actionable as copyright infringement.

Sale and resale rights

In New Zealand, the Artist Resale Royalty Scheme came into effect on December 1 2024, with the first royalties of NZ$152,000 ($87,669) paid to some 126 artists in March 2025. This introduces a significant tool for artists to continue benefiting from their art for many years after it has left their hands. It poses interesting questions in relation to street art – would the sale of an original Banksy artwork attract resale rights? How about the sale of a photographic work based on the original artwork?

In some countries, the answer to the first question is undoubtedly yes. In the UK, Banksy is listed as eligible for resale royalties under the official DACS website, and in the description of some auction lots in the UK and EU, it is made clear when resale rights apply to the sale of his works. However, for the sale of works in the US, it is unlikely that Banksy would receive royalties as the US does not have such a scheme currently in place.

Walking a tightrope

In some ways, street art walks a tightrope: it is accessible and public, its origins are edgy, anti-law, and anti-establishment, and yet, it has also become accepted by the art world, commercially valuable, and therefore subject to misuse.

Many artists working in other, more ‘traditional’ mediums know of their IP rights, which are easily defined. However, the conversation on street art is still young, and there are various issues that remain untested.

Whether you love or hate Banksy, he is undoubtedly the modern face, or perhaps rather, the ‘name’, of this artistic movement. As much as IP lawyers may cringe at his open disparagement of copyright, Banksy has at least engaged in the conversation about what the law can and should be doing to protect works of street art.

As of today’s date, Banksy’s website reads: “Saying ‘Banksy wrote copyright is for losers in his book’ doesn’t give you free rein to misrepresent the artist and commit fraud. We checked.”

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