It would seem that Banksy shot himself in the foot in stating that ‘copyright Is for losers’. The European Union Intellectual Property Office also cited his anonymity as a factor in not being able to control the use and distribution of his work. If your work is everywhere and no one knows who you are, then according to European law, you are fair game and don’t have a leg to stand on when it comes to people or corporations making money out of your ideas and Banksy isn’t alone in maintaining a sense of anonymity.

Banksy in his trademark fight with a greeting card company seemed doomed from the outset. So just when is a trademark style not a trademark style? Is there anyone who wouldn’t recognise a Banksy? One of the artist’s most famous images, shows a monkey wearing a sandwich board. Some versions of the image bear the inscription “laugh now but one day we’ll be in charge.” It has been reproduced everywhere. Full Colour Black, the greeting card company at the centre of the appropriation applied for cancellation of the trademark, arguing that it was ‘filed in bad faith and that it was non-distinctive’. The ruling notes that the street artist explicitly stated that the public is morally and legally free to reproduce, amend, and otherwise use any copyright works. He has known for years that his works have been widely photographed and reproduced without there being any commercial connection between the users and Banksy, the EU office found.

Under Australian US, European and New Zealand law all original artwork is automatically copyright and artists don’t need to add a copyright symbol so both their moral and legal rights are covered when it comes to reproduction. But trademark is another matter entirely. Copyright protects original work, whereas a trademark protects items that distinguish or identify a particular business from another. Copyright is generated automatically upon the creation of original work, whereas a trademark is established through common use of a mark or logo and is registered. Adidas and Apple have no problems.

A misconception is that copyright law only applies only if money is being made from use of an artwork – but copying is copying. To photograph and share an original artwork legally, you need to get the permission of the copyright owner and credit the artist.  Another misconception is that work in a public space isn’t copyrighted.  Some work in public spaces such as permanently installed sculpture is exempt but graphic work is still covered. In reality this includes tourists sharing holiday pics on social media, street murals used as a backdrop by sundry advertising companies, building owners letting artists use their walls and city councils commissioning the art. In most cases, casual photography is not a problem. Street artists are happy to have their work celebrated through sharing photographs of it and a recent TV campaign by the city of Melbourne extends this idea to come to Melbourne to look at street art and presumably to carry away a photographic record. Artists of course are even happier if they’re credited. But when street art is used to sell a product or push a message, that’s a different story.

One complication is figuring out who actually owns the copyright to an artwork, even one that has been signed. A lot of street art is commissioned and copyright rests in the party who commissioned the work. The only problem is that most street art is arranged with a handshake, not a contract. And “commissioning” could mean that the artist was paid, whether in cash, materials or expenses.  By accepting that situation they may be handing over their copyright to the organisers – a commercial transaction having taken place. Street artists shouldn’t do any work, paid or unpaid, without a contract which assigns copyright to them, according to legal opinion.

Artists can also paint a copyright symbol and a date on the artwork along with their name. This makes it clear to photographers whom they need to credit and ask permission of. A Creative Commons licence is also a good idea The appropriate licence is Creative Commons Attribution Non-Commercial, which just involves painting “CC BY-NC” somewhere on the work, near the copyright symbol.

However, back to Banksy. There are five more cases of his trademark applications pending before the EUIPO and EUIPO findings will have knock-on effects. The decision to reject his trademark portfolio—at least in the European Union—raises the threat of similar cases in other countries. Discrediting Banksy will not go down well just as with other artists who consider their style to be so distinctive that it is their trademark, registered or not.

Street artist Alessia Babrow Is suing the Vatican and seeking $160,000 in damages after the Vatican issued a stamp using one of her images without her consent. The artist has been making street art since 2013, and said she usually leaves her work unsigned and considers her style to be close to that of Banksy and distinctive. Babrow’s image depicts an appropriated painting by 19th-century German artist Heinrich Hoffman of Jesus with her own tag of a heart reading “just use it” written across his chest. She pasted the work, which she made in 2019, near the Ponte Vittorio Emanuele II bridge by the Vatican so the Vatican owns the wall and the only part she can claim as her own are the words. Babrow first learned of the stamp through Instagram when the Vatican issued a special stamp for Easter 2021 featuring the street art piece. It credited Hofmann, but not Babrow. One opinion considers that Mauro Olivieri, director of the Vatican Philatelic Office has made a serious blunder by using her work without permission. She was offered an audience with the Pope and some free stamps in lieu of compensation.

The first run reportedly sold out. The Vatican is selling the stamps for €1.15 ($1.40), and issued a print run of 80,000 stamps, according to Artribune in February 2020. When Banksy won a case in 2019 against an Italian museum selling merchandise based on his work he was no doubt jubilant to have taken on the establishment. With the European Union Intellectual Property Office ruling that his trademark portefolio is invalid Babrow may have no better luck. She may consider her style as her trademark and has every right to protect her work but as she said “unfortunately, this story is bigger than me”.

Another public case against yet another giant corporation on behalf of street artists everywhere at least keeps the rights of street artists in the public spotlight.