LAW IS IN THE BIN: NEW FRONTIERS IN CONCEPTUAL ART AND LEGAL LIABILITY.

• Author: Doering, Katelyn E.

INTRODUCTION

On October 5, 2018, in the elegant Sotheby's showroom on New Bond Street in London, (1) a room crowded with potential buyers of modern art eagerly anticipated the next sale. Lot 67, by British street artist Banksy, was an unassuming stencil design spray-painted on canvas. (2) The most striking thing about the work was its unusually, almost disproportionately, ornate frame: "an integral element of the artwork chosen by Banksy himself," according to the description in the Sotheby's catalog. (3)

Since its first appearance in graffiti form under London's Waterloo Bridge in 2002, the original image ("Girl with Balloon") had reached such iconic status that it took first place in a 2017 poll of favorite British artworks. (5) At this auction, Sotheby's estimated that Lot 67 would fetch a price of [pounds sterling]200,000-300,000. (6) However, the otherwise ordinary October evening at the auction house would soon take a sharp turn.

Video footage posted to Banksy's YouTube channel several days after the auction (7) tells the story best. After the hammer falls on a winning bid of [pounds sterling]860,000, Banksy, or someone representing him, triggers a remote device from within the crowd; immediately, a siren begins to beep and the painting hanging on the wall smoothly shreds itself, stopping at the halfway mark. (8) As the startled onlookers realize that the lower half of the canvas is now hanging in ribbons out of the bottom of the frame, the room descends into chaos. (9)

The incident received extensive media attention. (11) Banksy promptly claimed credit on his social media channels (12) and rechristened the partially shredded painting Love Is in the Bin. (13) Sotheby's representatives initially expressed shock, (14) but the auction house shortly recovered to produce a press release declaring that Banksy had "cleverly nestled himself in the pages of art history" and deeming the artwork the first to be "[c]reated [l]ive at [a]uction." (15) The sale price would have been newsworthy in itself, as it was a personal record for the artist. (16) However, experts soon began to estimate that the framed print had as much as doubled in value after the stunt, despite its damaged condition. (17)

Reactions from the art world were mixed. Admirers cheered the event as the iconoclastic artist's most audacious work yet, (18) while others accused the artist of exploiting the huyer and other bidders to shamelessly promote himself and his career. (19) Conspiracy theories also began to circulate. Both Banksy (20) and Sotheby's (21) discredited any notion that the auction house had had prior warning of the stunt. The swirl of commentary around the event reached its apex when the buyer, identified only as a "female European collector and a longstanding client of Sotheby's," indicated that she was "proceeding with the purchase at the same price" (22) and that she was pleased to be the owner of the new work, which she described as "[her] own piece of art history." (23)

In triggering the remote-control shredder, Banksy was--whether deliberately or inadvertently--contributing to a debate that extended far beyond that October evening at Sotheby's. Banksy's shredding stunt fits squarely within the conceptual art tradition in modern art, the legal underpinnings of which have resisted definition since its inception. As the Girl with Balloon slid out of the bottom of its frame in shreds, Banksy was merely adding a novel twist to the legal difficulties that often face buyers of conceptual art. Banksy's visibility and popularity, (25) and the viewer response his work often inspires, (26) means that stunts like this one--in which a legal transaction between artist and buyer is part of the essential "concept" of a work of conceptual art--will only become more common as other artists use Banksy's contribution as the catalyst for their own creative projects. (27)

If this buyer's choice is only the first data point in a potential proliferation of such transactions, it tells us little. The obvious question remains: If such a buyer had decided not to accept the artist's explanation that the destruction of her purchased item had independent artistic integrity, what legal recourse, if any, would she-have had? And how would the reviewing court have addressed the question of whose definition of the work was authoritative?

Part I of this Note begins with a discussion of who Banksy is and why his work is important to this legal debate, finishing with a detailed description of the features of conceptual art that are relevant for legal analysis and an argument that the shredding stunt--the event itself, not the partially shredded canvas--is a work of conceptual art. Part II argues that the unique features of the shredding stunt, and of future works in the same artistic category, present a novel legal problem both for artists and for buyers. This novel problem is explored through the lens of the legal recourse available to buyers of modern art who become aware at the time of purchase that the artist had different plans for the tangible elements of the work than were communicated prior to purchase. Whether the court adopts the artist's or the buyer's definition of the "artwork" is crucial to the resolution of these disputes. Existing law governing sales of artwork indicates that a reviewing court is more likely to side with the buyer.

In light of the ramifications of the shredding stunt and the new questions it raises, Part III issues recommendations for artists seeking to realize their creative goals and buyers seeking to avoid harm to themselves and liability to third parties. In the absence of formal copyright protection for conceptual artworks, artists can avoid legal action from potential buyers by ensuring they only sell to willing buyers. While this option has adverse consequences for artistic integrity, as risk mitigation is antithetical to the element of surprise at the heart of works like the shredding stunt, artists might need to voluntarily accept this reality as a limitation on their ability to pursue any concepts they desire. Buyers, on the other hand, need to begin scrutinizing art transactions with more caution if they want to avoid becoming unwilling participants in conceptual artworks. In fully evaluating risk, buyers may also be able to rely on industry norms to incentivize artists to be mindful of their interests.

1. LOVE IS IN THE BIN IN ITS ARTISTIC CONTEXT

   1. The Banksy Phenomenon

      "Banksy" is a pseudonym used by an anonymous British graffiti artist believed to be from Bristol, England. (28) Banksy's true identity, which is still unrevealed, is a continual subject of speculation. (29) While Banksy seems to be one person and is usually described that way, it is unknown whether the "Banksy" moniker in fact refers to a team of people. (30) The now-defunct original version of Banksy's website provides this tongue-in-cheek insight: "I paint it all myself unless it's illegal, in which case I've never seen any of it before, your honour." (31) Banksy's anonymity certainly adds to the intrigue surrounding his work, but it also has the benefit of shielding him from criminal liability (as most graffiti installations are, in fact, illegal). (32)

      Banksy began his artistic career in the 1990s producing freehand graffiti, eventually developing a distinctive stencil-based style that makes his street art installations instantly recognizable. (33) Later in his career, he began to explore other media; besides an extensive collection of street art installations worldwide, his artistic portfolio now includes several books, (34) limited edition prints of his best-known street art designs, (35) original visual artwork not connected to any site-specific installation, (36) an array of officially licensed "merchandise" (presented for sale with mock seriousness), (37) and several conceptual art stunts. (38) To preserve his anonymity, Banksy carries on all legal interactions with the art world, including sales and authentication, through an agency named Pest Control, incorporated in the United Kingdom. (39) Banksy is both a prolific artist and a modern pop culture icon. He was named one of the world's 100 most influential people by Time in 2010, (40) a list that also included Barack Obama, Steve Jobs, and Lady Gaga. (41) Banksy is also an established presence on social media, using his official Instagram and YouTube accounts to release new works and independently control his creative brand. (42)

      An examination of the Banksy phenomenon reveals a visionary, genre-defying artist with strong opinions ahout the limited capacity of the art establishment to define artistic ownership, artistic valuation, and acceptable artistic context. Much of his public commentary and many of his artworks center around this defining concept. Banksy considers graffiti a legitimate art form, despite its emancipation from the gallery setting, and thinks its primary value is in its cheapness and ready accessibility to the public. (43) He asserts that advertisers invade the public space without the viewer's permission in pursuit of a profit motive; in his understanding, since the law protects this exploitative behavior, it should also protect street graffiti art, which is egalitarian in its independence from commercial interests. (44) As Banksy's images and other works from the street art genre began to enter the mainstream art market and fetch increasingly high prices--an artistic-cultural shift that has been described as the "Banksy effect" (45)--Banksy's theme evolved in response. (46) Several of his later works explore the subjectivity of artistic merit and the illegitimacy of the art world's attempts to define and control it. An image from Banksy's 2006 Barely Legal exhibition, posted to his website after Sotheby's sold seven of his works for record prices in a sale of contemporary art, (47) is perhaps his bluntest expression of this idea prior to the shredding stunt...