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To whom does art belong?

There is an age old question that remains unanswered: does art belong to the artist who created it; to the person who has bought it; or to everyone? In the matter of The Creative Foundation v Dreamland Leisure Limited and others [2015], the High Court had to answer a similar – although not quite as profound – question to answer.

Dreamland was the tenant of a commercial building Folkestone under the terms of a lease. The Foundation is a registered charity based in Folkestone which promotes creativity and the arts, and was assigned the right to bring this cause of action by Dreamland’s landlord.

Every three years, a public art festival organised by the Foundation takes place in Folkestone known as the Folkestone Triennial. On 28 September 2014, during the currency of this festival, the graffiti artist known as Banksy spray-painted a mural onto one of the external walls of the building. The mural was painted without the knowledge or consent of either the landlord or Dreamland (as is Banksy’s way!).

The mural attracted a lot of interest from the general public and was initially valued at anywhere between £300,000 and £470,000. Although these valuations may not have been entirely accurate, it was clearly a very valuable piece of work.

In due course, Dreamland removed the section of the external wall which had the mural on it and shipped it to a gallery in New York for safe keeping. An injunction was obtained by the Foundation preventing the sale of the mural, pending the outcome of the proceedings that it subsequently issued.

The Foundation’s claim was based on the argument that the bricks and mortar of the building vested in the landlord and that the mural became part of the building once it was sprayed on. Whilst Dreamland had a right to use the building during the terms of the lease, it did not have a right to remove part of the walls. Even once the wall had been removed, title in it and in the mural remained with the landlord.

Dreamland argued in response that it was required to remove the mural to comply with its repairing obligations under the lease, and that once it had removed the wall in compliance with this obligation, title in the wall remained with it.

In the course of the proceedings, the Foundation issued an application for summary judgment, and the matter was listed to be heard by Mr Justice Arnold. Dreamland contended that mural constituted graffiti, and that it was obliged to remove it pursuant to the terms of its lease. The Foundation, in response, claimed that the building was not in disrepair, and so the repairing obligation was not engaged. Alternatively, even if the building did require works to put it back into repair, it could simply have been painted over or chemically cleaned – removing the wall was far more invasive and unnecessary, especially as it had the potential to affect the fabric of the building.

Mr Justice Arnold agreed that, on balance, there was an argument to be had about whether or not Dreamland’s repairing obligation had been engaged. However, he held that there was no reasonable prospect of Dreamland establishing that it was entitled, or indeed obliged, to remove the mural and the wall. Finally, Mr Justice Arnold held that that once the wall had been removed from the building, it became the property of the landlord and not the tenant.

Accordingly, the Foundation was entitled to summary judgment in its claim and Dreamland was ordered to deliver up the mural.

The Foundation intends on displaying the mural along with the Folkestone Artworks, a collection of the best of the exhibited works from each Folkestone Triennial, so that it can be enjoyed by the general public.

This article is for information purposes only and is not legal advice. It should not be acted or relied upon and legal advice should be sought before applying any of the information in this article to any facts or circumstances.

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