Legal focus on Banksy’s art of shredding

After revolutionizing the world of art, by transforming an act of vandalism − such as murals − in million dollars artworks, Banksy has recently hit the headlines with his latest provocation. In October, during a Sotheby’s auction, right after the awarding of one of his most famous creations entitled ‘Girl with balloon’ for more than £ 1.000.000, the painting literally destroyed itself. Immediately after, the artist declared to have intentionally placed a shredding machine within the frame. As a consequence, a new piece of artwork – ‘Love is in the bin’ – was created by destroying the first.

This episode definitely calls for some legal analysis also under Italian law of what went on in that occasion. “Can a destroyed artwork be considered as an artwork itself under the Italian Copyright Law? And, above all, what about the buyer’s position, who had purchased an expensive piece of artwork and then was left with some framed stripes of shredded paper?”

Italian Copyright Law (L. 633/41) grants protection to any creative intellectual artworks belonging to literature, music, visual arts, architecture, theater and cinematography, by any means of expression (Art. 1). Therefore, Italian law provides a very wide range of what can be considered protected under copyright law, thus granting protection to a very board variety of works of art characterized by a certain degree of creativity.

In light of the above, there would be no legal obstacles in considering as a new piece of artwork the mere destruction of the painting. However, there could be issues concerning the rights of the buyer to ask for damages.

According to Art. 1376 of the Italian Civil Code, the property is transferred with mere consent of the parties involved in the transaction. However, auction sales are normally characterized by a “retention of title” (“riserva di proprietà”) clause, which implies that the buyer acquires the property with the full payment of the price but undertakes the risks on the goods from the moment they are delivered, as referred to in Art. 1523 of the Italian Civil Code. That said, who is therefore liable for the damages occurred between the award and the delivery in the case at hand? Should liability be imposed on the party who has possession of the artwork, which was – at the moment of the destruction – Sotheby’s?

As to the present case, even Sotheby’s cannot be considered faulty: indeed, given that auction houses act as mere intermediaries between the buyer and the seller, therefore, they might be considered responsible only if the goods are damaged due to their fault – which, in this case, has been excluded by Banksy who “pleaded guilty” of intentionally placing the shredder in the frame.

Luckily enough, in the Banksy case, the buyer involuntarily purchased a “piece of history” with a value that, from a first estimate, doubled compared to what he had offered when he was awarded ‘Girl with Balloon‘. In any case, keep in mind that not all stunts end up as Banksy’s, so avoid shredding your precious artwork because you might just end up with a bunch of confetti and not millions of dollars!

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