Student Comment: “The Law of Banksy: Who Owns Street Art?”

Banksy’s ‘mobile lovers’. It sparked a dispute between the Boys’ Club where it was painted, and the Bristol City Council which sought to seize it.

The artist Banksy creates valuable works of art, but he places them without permission, and this often raises property disputes. Peter Salib, a JD candidate at the University of Chicago has posted a draft of “The Law of Banksy: Who Owns Street Art?” It is an interesting examination of the problem, though comparative lawyers and those outside the United States may share my frustration that though the author uses as an example the dispute between a Boys’ Club in Bristol, and the Bristol City Council, and an artist who works frequently in the United Kingdom and all over the world, insists on focusing almost exclusively on American law.

From the abstract:

Street Art — generally, art that is produced on private property not owned by the artist and without permission — has entered the mainstream. Works by such artists as Banksy, Jean-Michel Basquiat, and Shepard Fairey now sell at the world’s most prestigious auction houses, fetching prices in the millions. Strangely, however, the law governing street art ownership is entirely undeveloped. The circumstances of street art’s creation — often involving artists’ clandestine application of their work to the sides of buildings owned by others — render traditional legal paradigms governing ownership intractable. If Banksy paints a valuable mural on the side of my house, who owns it? Me? Banksy? Someone else? American law is currently ill-equipped to answer the question.

This article rigorously investigates the problem of street art ownership. It accounts for the unusual circumstances of street art creation and distribution. It then considers the possible legal regimes for governing street art ownership and comes to a surprising recommendation.

  1. Peter N. Salib, The Law of Banksy: Who Owns Street Art?, SSRN Scholarly Paper ID 2711789 (Social Science Research Network), Jan. 6, 2016.
  2. Owner of Banksy Mobile Lovers youth club received death threats, The Independent (Aug. 27, 2014), http://www.independent.co.uk/arts-entertainment/art/news/banksy-mobile-lovers-sold-owner-of-youth-club-where-artwork-appeared-in-bristol-received-death-9695327.html.

Special Heritage issue of Near Eastern Archaeology

NEA78-3_cover-1The Journal of Near Eastern Archaeology has a special issue covering the “Cultural Heritage in the Middle East”. There are ten contributions covering Iraq, Syria, Egypt, Libya, and Afghanistan. All of the contributions are available on JSTOR. From the contents:

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Student Note on the Scythian Gold from Crimea

press-release-the-crimea-gold-and-secrets-of-the-black-sea

Maria Nudelman in a student note for the Fordham International Law Journal discusses “Who Owns the Scythian Gold? The Legal and Moral Implications of Ukraine and Crimea’s Cultural Dispute”.

From the introduction:

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Vadi on Global Cultural Governance

The Old Town Cathedral, Vilnius, Lithuania
Does a parking garage belong under this?The Old Town Cathedral, Vilnius, Lithuania

Valentina Vadi, a reader in Law at Lancaster University has published an article in the Boston University International Law Journal titled “Global Cultural Governance by the Investment Arbitral Tribunals: The Making of a Lex Administrativa Culturalis“. It highlights some interesting contradictions between the promotion of cultural heritage and the legal constraints of international investment law.

From the Abstract:

The protection of cultural heritage is a fundamental public interest,closely connected to fundamental human rights and deemed to be among the best guarantees of international peace and security. Economic globalization has spurred a more intense dialogue and interaction among nations, potentially promoting cultural diversity. However, this phenomenon may also jeopardize cultural heritage. Foreign direct investments in the extraction of natural resources have the ultimate capacity to change cultural landscapes and erase memories. Foreign investment in cultural industries can induce cultural homogenization. However, international investment law constitutes a legally binding and highly effective regime that requires that states promote and facilitate foreign direct investment. Does the existing legal framework adequately protect cultural heritage vis-à-vis economic globalization? This Article investigates the distinct interplay between the promotion of foreign direct investment and the protection of cultural heritage in international law, addressing the question of whether a lex administrativa culturalis, or cultural administrative law, has emerged. In particular, this Article questions whether international investment law and arbitration can be a tool for enforcing international cultural law and whether arbitral tribunals can promote good and effective cultural governance.

Cultural Heritage Conservation Easements

Mount Vernon, George Washington's estate, was preserved thanks in part to conservation easements
Mount Vernon, George Washington’s estate, was preserved thanks in part to conservation easements

Jessica Owley of SUNY Buffalo has posted a piece examining the use of conservation easements in the context of Cultural Heritage Protection. From the abstract:

Conservation easements are quickly becoming a favored tool for protection of cultural heritage. Perpetual encumbrances on the use of private land, most cultural heritage conservation easements are held by private conservation organizations known as land trusts. With minimal public oversight, land trusts decide which lands to protect in perpetuity and what the rules regarding use of those lands should be. A variety of concerns arise when protection of cultural heritage resides with private organizations. First, as governments abdicate cultural heritage protection to private organizations, the public’s role in site protection shifts. When private organizations and landowners negotiate which properties to protect and how to protect them, some culturally important sites go unprotected. Privatizing protection of cultural sites may reduce the ability of some members of the public to become involved in the decision of what to protect as well as hamper public oversight and enforcement of land-use restrictions. It may even reduce overall protection as public entities remove themselves from the cultural heritage protection game, ceding the territory to land trusts. Second, private perpetual restrictions problematize the balance between intergenerational rights and present responsibilities. Reverence of past cultural events and properties may hamper future growth as users of conservation easements restrict properties in perpetuity without enabling communities to revisit or modify the restrictions. Third, conservation easements may be protecting sites that were not in danger of exploitation. In such cases, conservation easements subsidize landowners with questionable public benefits. Finally, using conservation easements to protect sacred sites commoditizes cultural heritage. Paying people to protect cultural heritage could degrade cultural heritage or civic responsibility.

  1. Jessica Owley, Cultural Heritage Conservation Easements: The Problem of Using Property Law Tools for Heritage Protection (2015), http://papers.ssrn.com/abstract=2243129.

 

 

Roodt and Benson on Databases for Stolen Art

 

Christa Roodt, of the University of Glasgow and the University of South Africa, and Bernadine Benson, of the University of South Africa have an article in the June issue of the South Africa Crime Quarterly examining databases for stolen art with a particular emphasis on the South African position post-Apartheid. They make a good common-sense argument in favor of a centralised database for South Africa which would assist both the market and law enforcement. Here’s the abstract:

 Addressing the illicit trade in stolen works of art and other heritage items is notoriously difficult. Before thefts of heritage items can be recorded, the object in question must be identified as having special significance. The investigation of the circumstances in which such an object was acquired and the enforcement of legal and ethical standards of acquisition become unduly complicated in the absence of a comprehensive national inventory of museum holdings and of a database of stolen art and cultural objects. This article considers the development of inventories and databases in South Africa and elsewhere. We argue that cross-sectoral cooperation in sharing databases needs to improve significantly in order to boost compliance with due diligence standards. To help restore the credibility of the trade in art and cultural objects, the South African Heritage Resources Information System site must be endorsed as the centralised database for heritage crime. This would provide ready access to databases, helping art market participants, law enforcement officers and customs officials in the investigation of stolen art works.

  1. Christa Roodt and Bernadine Benson, “Databases for Stolen Art: Progress, Prospects and Limitations,” South Africa Crime Quarterly, no. 52 (June 2015).

Kersel on the ‘Archaeological Curation Crisis’

Morag Kersel, an assistant Professor in the Anthropology department at DePaul has published an article in the Journal of Eastern Mediterranean Archaeology & Heritage Studies titled “Storage Wars: Solving the Archaeological Curation Crisis?“. She has posted the piece online at academia.edu. From the abstract:

Whether sponsored by academic institutions, governments, international agencies, or private landowners,the results of archaeological investigations are the same: the production of knowledge and an accumulation of things. The material manifestations (artifacts and sam-ples) and the accompanying daily notes, digital records,maps, photographs, and plans together comprise a comprehensive record of the past. Once these items havebeen amassed, they are deposited in dig houses, maga-zines, museums, repositories, storage containers, andsometimes in personal basements and garages to be heldin perpetuity. Across the globe, storage (here implyingcuration and permanent care) is one of the most pressing issues facing archaeology today. Te following examines the curation crisis and some of the traditional and inno-vative solutions to the storage wars, arguing that rather than something that is viewed as a time-consuming,costly afterthought; curation should be an integral part of archaeological praxis.