Saturday, August 17, 2013

Monetizing Outlaw Art And Killing The Artists

Consider the graffiti artist who puts something up in the dead of night on some wall.

A year later, it's auctioned off for $1.1 million.

Irony twisted in irony.  Banksy's graffiti is both clever and well executed.  More succinctly, it's often brilliant.

If he were doing these in a studio on canvas, they would be good.  But the power of these drawings is greatly multiplied by the fact that they are (mostly) done secretly, without permission, in public places, and their placement is part of the comment they make about the world.  Some examples:
  • A pole vaulter painted on a wall high above a chain-link face next to the wall.  
  • A rat painted into the barred red circle on a no-stopping sign.  
  • "Sorry, the life style you ordered is currently out of stock" on a billboard painted on the side of a building.  
  • A suited man with a briefcase and a sandwich board over his chest reading "0% interest - in people."  Is this a bank wall I wonder?  
  • A hand coming out of a painted barred window reaching down to pick the lock on a painted doorknob on the side of a Bail Bond shop.  

You get the idea.  But the art work itself speaks much more strongly than my descriptions.  You can see all these and many more on Banksy's website

This all came up because of a recent LA Times story about a  Banksy drawn on a gas station wall that was cut out of the wall and is going up for auction. The flower girl is faced with a plant that has a surveillance camera where the flower should be.  (For the record, the article says that in this case the owner of the wall gave permission.)

So, a huge part of the appeal of these pieces is the social/political comment at a location that amplifies the point. 

So what does it mean when the owner of a painted wall cuts out the work and sells it for hundreds of thousands of dollars or more?  What does this tell us about how the market works, about fairness, profit, free speech, decency?   Is there an obligation to share some of the profit with the artist?  Often the artist is not known.  In fact has been forced to hide his identity.  Is there an obligation to share the work and/or the profit with the community?  Not under our current private property laws.  The artist is technically a and outlaw, a vandal who has defaced someone else's property and could be charged and tried.  The property owner who may be the object of the artists political humor, turns around and profits from the 'crime' against him. 

This becomes all the more poignant when we consider the graffiti artist who was recently killed by police who tasered him.
[Israel] Hernández, 18, was an artist and photographer who had some of his work exhibited locally. On the morning of Aug. 6, he was spray-painting his graffiti tag “Reefa” on an abandoned McDonald’s when the Miami Beach cops began to chase him. After being cornered a couple blocks away Officer Jorge Mercado shot Hernández with a Taser in the chest. He was pronounced dead at the hospital shortly thereafter.  [from the Militant]
My heart breaks for Hernández' family and friends at this illustration of how police thinking causes so much tragedy.  I don't mean to belittle this by not going into it more fully.  This is worthy of further posts.  Perhaps the fallout will lead to better police training and recognition of kids' needs to express themselves and finding ways to help them do that legally.  

I'm still trying to untwist my brain over all this.

Graffiti, it seems to me, basically comes from an imbalance in society.  Those who feel they have no legitimate means of control over their lives, make their mark by defacing other people's (public or private) property.   It's anger at their own lack of power and at those who have more power. Their spray paint is a visual tantrum.   For others it's putting their brand out to the world.  They may not have $1 million to get a stadium or building named after them, but they do have spray paint.  Others are using spray paint and stencils to present their art or to make a statement about the world. 

Artists like Banksy,  Jean-Michel Basquait, and Kevin [Keith] Haring, whose graffiti has moved from the streets to museums and private collections, illustrate the ironies of capitalism.  One can argue that at first they simply had no legitimate venues, and like street musicians, gave their art away for free until they gained access to legitimate venues.  But a big part of the appeal of graffiti art, unlike street music, comes from the fact that they are making political statements elegantly but illegally.  It's outlaw art, as the police response to Hernández reminds us.

Should graffiti artists share in the profits when their work is auctioned off to the wealthy? 

There are moves to give artists a share in the market appreciation of their work.  From a 2011 NY Times article
"When the taxi baron Robert Scull sold part of his art collection in a 1973 auction that helped inaugurate today’s money-soused contemporary-art market, several artists watched the proceedings from a standing-room-only section in the back. There, Robert Rauschenberg saw his 1958 painting “Thaw,” originally sold to Scull for $900, bring down the gavel at $85,000. At the end of the Sotheby Parke Bernet sale in New York, Rauschenberg shoved Scull and yelled that he didn’t work so hard “just for you to make that profit.”

The uproar that followed in part inspired the California Resale Royalties Act, requiring anyone reselling a piece of fine art who lives in the state, or who sells the art there for $1,000 or more, to pay the artist 5 percent of the resale price."
So, perhaps, if Banksy's Flower Girl sells for $300,000, there would be $15,000 in it for him.  But this is a reminder that there is little that is 'natural' in the market.  It's all about who had the power to get laws written and whom the laws favor or dismiss.  

I've also posted about the film, Exit Through the Gift Shop, which features Banksy and is a good way to get a sense of some of the graffiti artists and their motivation.  And about his painting - Taking a Break


  1. I'm thinking that you mean Keith Haring, not Kevin. Sorry to nitpick - I get a lot out of reading your blog. It's nice switch to inform you of something for a change.

  2. Kathleen, yes, yes, yes. I know someone with a similar last name called Kevin. But when I checked the links I realized my mistake and thought I'd corrected it. But I hadn't until the alert from you. So thanks for the good eye! And glad to hear from you.

  3. We just had a case in Louisville where a graffito was painted on the wall of a shop. The shop owner took a photo and had T-shirts made. The graffiti artist got pissed that his image had been appropriated, so he stole 19 T-shirts from the shop. And of course got arrested for robbery and criminal mischief.

    Quoting from the newspaper story:

    Legal experts say graffiti is protected under copyright law, but a legal defense in which Rodriguez claims copyright creates a dilemma for him. And stealing the infringing work is not a legal way to handle a copyright infringement, they said.

    John Cross, a professor of law at the University of Louisville, said the graffiti has to pass two copyright tests: it has to have been created by the person claiming the copyright and “set down on a tangible media” such as spray paint and a surface.

    The legal way to stop someone from infringing on a copyright would be to seek an injunction in court and allow law enforcement officials to seize the material, Cross said.

    “The mere fact that you have a copyright doesn’t give you the right to go in and seize the offending materials yourself,” he said. While Rodriguez may not be able to use copyright law to defend against the robbery charge, he may be able to use it for the criminal mischief charge, said Stacie Sandiferd, a California attorney who published a legal paper on graffiti and copyright law. Legally, by taking a photo of the graffiti and printing shirts with the image, Dotson invalidated any legal claim of vandalism, she said.

    But to employ that defense, Rodriguez would have to admit he is the man behind an image illegally painted all over Louisville, she noted. “Once they claim it, they can be charged with vandalism elsewhere,” she said. “It’s a Catch-22.”

  4. Thanks Kathy, that story fits right in. And so we don't have any copyright issues, here's the link to your newspaper.

    I see that Philip Rodriquez also got more traditional art work here.


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