Can you be anonymous and claim copyright?

[hubner]

I though this is interesting. Banksy cannot claim copyright on his work because he is anonymous and has lost a case claiming trademark as well because he didn't use the works as a trademark.

I read that he got the trademark through his "corporate entity", presumably that's anonymous too.

https://www.independent.co.uk/arts-entertainment/art/news/banksy-flower-thrower-lawsuit-full-colour-black-trademark-copyright-identity-b464781.html

Banksy loses art trademark battle with greeting card company in ‘devastating’ ruling

Judges ruled that mysterious artist’s intent on anonymity did not help his case
Adam White
Thursday 17 September 2020 10:32

Banksy has lost a legal battle over one of his most famous artworks, with a trademark attorney calling the decision “devastating” for the artist.

The artwork, which depicts a masked protester throwing a bouquet of flowers, appeared on a wall in Jerusalem in 2005. It has since been reappropriated by the UK card company Full Colour Black, which has used the artwork on cards.

In 2014, Banksy successfully applied for an EU trademark for the work, which was then challenged by Full Colour Black. The company argued that the artist was not entitled to the trademark as he did not wish to use it for trade purposes or for branding.

As a result of the challenge, Banksy opened up his own shop in October 2019 which featured versions of his artwork for sale. In an interview, the artist admitted that the shop was opened “for the sole purpose of fulfilling trademark categories”.

Judges at the European Union Intellectual Property Office have now ruled in favour of Full Colour Black. They argued that Banksy’s decision to graffiti public property and his previous expressions of disinterest in maintaining the copyright to his own work were both factors in the ruling.

Banksy has long expressed disdain for intellectual property, famously claiming “copyright is for losers”.

Judges also argued that it was difficult for Banksy to exert copyright laws while remaining anonymous, with the artist famously keeping his true identity a secret.

Full Colour Black’s trademark attorney, Aaron Wood of law firm Blaser Mills, said that the ruling was “devastating” for Banksy.
Banksy's graffiti mural 'The Flower Thrower', which was painted on a Jerusalem wall in 2005(Alamy Stock Photo)

“He will need to consider whether any of his trademarks for his artworks are actually valid,” Wood said.

https://www.bristolpost.co.uk/news/bristol-news/banksy-loses-flower-thrower-trademark-4525746

Banksy loses 'flower thrower' trademark battle with greetings card company

The EU trademark office found a quote in Banksy's book which said 'copyright is for losers'

By
Emma Grimshaw

    16:14, 17 SEP 2020

Bristol's elusive graffiti has lost a landmark court battle with a greetings card firm over the trademark of one of his most famous pieces of work.

Officials at the European Union trademark office quoted from one of his books, in which Banksy said "copyright is for losers", during the hearing.

North Yorkshire-based Full Colour Black challenged the artist's right to trademark his image of a protester throwing a bunch of flowers.

The cancellation division of the EU’s intellectual property office said in a ruling this week Banksy filed in bad faith and declared it “invalid in its entirety”.

It also said his anonymity weakened his case for trademark protection for his work.

Also known as Love is in The Air, the graffiti artist created the work in Jerusalem in 2005.

It depicts a young protester wearing a cap and with his face half-covered throwing a bouquet of flowers.

Full Colour Black, which sells products printed with images of his pieces, claimed the 2014 trademark for Flower Thrower should be cancelled because Banksy had not made use of it.

The company argued he only applied for it to prevent “the ongoing use of the work which he had already permitted to be reproduced”.

After Full Colour Black started legal proceedings, Banksy opened an online store called Gross Domestic Product to sell his own range of merchandise.

But the move left the EU examiners unconvinced.

They wrote in their decision: “It was only during the course of the present proceedings that Banksy started to sell goods but specifically stated that they were only being sold to overcome non-use for trademark proceedings and not to commercialise the goods.”

Examiners also made clear the artist’s choice to keep his identity secret hurt him in the Flower Thrower case.

They wrote: “It must be pointed out that another factor worthy of consideration is that he cannot be identified as the unquestionable owner of such works as his identity is hidden.

“It further cannot be established without question that the artist holds any copyrights to a graffiti.

“The contested (trademark) was filed in order for Banksy to have legal rights over the sign as he could not rely on copyright rights but that is not a function of a trademark.”

[ian]

Well, a trademark has to be used as a trademark, you can't trademark things as a means of throwing a towel on a deckchair that might want to use later.

Copyright can be assigned to another entity (person or company), so he could have assigned his copyright to, say, his agent. But otherwise, copyright belongs to an identity (that's by definition) identifiable, so if you opt not to be identifiable, it's not surprising that copyright can't be assigned. Anyone could stand up and declare, Spartacus-like, that I'm the owner. The second issue is that by sticking his artwork in a public place, often on space that doesn't belong to him, that his intention is to promulgate.

I'm not really clear why they challenged it.

[citoyen]

Copyright is implicit in the creation of the work, so doesn’t need to be asserted. But if someone else then appropriates your work for commercial gain, it’s pretty hard to defend your copyright while remaining anonymous.

Trade marks are not implicit but don’t need to be asserted either - you can defend a trade mark even if you didn’t use the TM or R symbols. It does need to be an actual trade mark though.

[FatBloke]

You can't have your cake and eat it too!!

[Beardy]

While I agree that if he wants to remain anonymous then claiming copyright is problematic, for a card company to just use the images without any remorse is a bit off.

[ian]

While I agree that if he wants to remain anonymous then claiming copyright is problematic, for a card company to just use the images without any remorse is a bit off.

To be fair though, his own schtick is to stick his artwork on someone else's building without asking, so it's a bit karmic.

[Asterix, the former Gaul.]

Copyright is implicit in the creation of the work, so doesn’t need to be asserted. But if someone else then appropriates your work for commercial gain, it’s pretty hard to defend your copyright while remaining anonymous.

Trade marks are not implicit but don’t need to be asserted either - you can defend a trade mark even if you didn’t use the TM or R symbols. It does need to be an actual trade mark though.

Companies that amass all kinds of images like Getty Images intrigue me.  A photo I am interested in was taken in the early thirties and Getty say it is copyright although it is very unlikely they commissioned it or pressed the shutter.  I also bought an original press photo produced in 1934 but no negative and there is no indication of who took it or where it was used.  Who might object to me using it?

[Greenbank]

It's very complex.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/481194/c-notice-201401.pdf

[ian]

In very simple terms, if you take a picture, you own the copyright (for the prescribed term). If you take a picture for your employer (as part of your employment), they probably own it.

You can also assign your copyright. In this case, you relinquish your rights to another party. This might happen if, say, you're a freelancer who sells an image to a paper or a photo agency.

And finally, you can licence your work. You retain your copyright but you licence another party to use your work under defined circumstances.

As a creator, you also retain what are known as 'moral rights' – these are basic things like the right to recognised of the creator of the work.

A photograph taken in the 30s could still be copyright, but the copyright term is very complicated (as per the document Greenbank linked).

[citoyen]

Companies that amass all kinds of images like Getty Images intrigue me.  A photo I am interested in was taken in the early thirties and Getty say it is copyright although it is very unlikely they commissioned it or pressed the shutter.

Its not impossible that they own the copyright on the pic. They may have bought it as part of a library acquisition.

Getty do in fact commission original photography*, and have photographers working directly for them, but principally they are agents for freelance photographers who retain copyright on their work.


*since the company was founded in the 90s, it’s a safe bet your 1930s pic wasn’t commissioned by them.