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Legal Minds

24 October 2018 / by / in ,

Banksy – artist or vandal?

There has long been debate over whether graffiti is art or just plain criminal damage. Banksy is arguably the most famous graffiti artist in the world with his pieces gaining worldwide acclaim but also attracting criticism with some believing that Banksy is simply a vandal. As his graffiti art draws contradicting opinions, his latest stunt has also courted controversy. Girl with Balloon is one of Banksy’s most well-known series of artwork, having first appeared as a stencil mural on Waterloo Bridge in 2002. Some years later, he gave a friend a painting which was an adaption of the mural. This painting was sold at auction by Sotheby’s on 5 October 2018 for £1 million. Within seconds of the gavel dropping, the painting began shredding itself.

Banksy later uploaded a video onto Instagram showing the construction of the shredder within the frame and stated that he installed the self-destruct mechanism at that time in the event the piece was ever put up for auction. When the painting was sold, Banksy seemingly shredded the painting using some form of remote activation device. In doing so, did Banksy commit a criminal offence?

Under section 1 of the Criminal Damage Act 1971:

“(1) A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.”

Would Banksy have any defence if a complaint of criminal damage was made by the owner of the painting?

A person has a lawful excuse if, at the time of the act or acts alleged to constitute the offence he believed that the person or persons whom he believed to be entitled to consent to the destruction of or damage to the property in question had so consented, or would have so consented to it if he or they had known of the destruction or damage and its circumstances. This means that it would be a defence if Banksy honestly believed that the buyer would have consented to him shredding the painting if they had known what he was planning on doing.

Perhaps the most interesting argument is whether he actually caused damage or destroyed the painting. Damage isn’t defined in the Act and is a matter of fact and degree. Whilst the painting has clearly been shredded, the matter is complicated by the fact that we are talking about a piece of art and it was the artist himself who damaged the painting. If it was a Monet which was damaged by a visitor to an art gallery, then that is obviously criminal damage as it will affect the value of the painting. In this case, however, it could be argued that there was no ‘damage’. The shredder was built into the frame of the picture and it would appear that it was always Banksy’s intention to activate it at some point, therefore, is this in fact part of the art itself? Furthermore, since the incident, Banksy’s authentication board have certified the painting with a new title ‘Love is in the bin’ and its value has doubled. One argument could be that the shredding of the painting was a continuation of the art which, in its state at the time of the auction, was incomplete and the shredding of it was ‘completion’ of the piece.

Given the circumstances, it is extremely unlikely that the owner of the painting would make a complaint that it has been ‘damaged’ however the debate is likely to continue; Banksy – artist or vandal?

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