SELL IT, SHRED IT, OR BOTH? What Rights Does an Artist Have in Artwork That Has Been Sold?

Imagine the scene: Sotheby’s, world-class art auction house for the mega-rich, in the middle of an auction. On the block is a painting by infamous street artist Banksy in a beautiful gold frame - Banksy’s identity is unknown, and he typically paints in a guerrilla graffiti style, leaving politically-charged paintings on warehouse walls or other public places in the dead of night, so it’s unclear how one of his paintings came to be on canvas, framed, and for sale at Sotheby’s. The auctioneer plays the crowd like a harp and gets the bid up to 1.4 million before banging the gavel. But as soon as he says SOLD, the painting’s frame hums to life and pulls the painting through the bottom, slicing it into neat strips. The frame contained a remote-controlled shredder that just destroyed the painting. Bidders in their tuxedos and diamonds watch dumbfounded as 1.4 million pounds slides down the drain. Within a few hours, Banksy himself posts a video on Instagram claiming responsibility and showing the installation of the secret shredder. “The urge to destroy is also a creative urge,” he says.[1]

This raises a legal question: can an artist destroy a work that he has already sold? And the answer is, maybe. To understand, let’s take a quick run around the principles of property.

When you own a piece of property outright, with no other co-owners or encumbrances (an encumbrance is a right someone else may have to the property), whether that property is real (real property is land or things attached to land) or chattel (chattel property is movable personal property, like clothing, furniture, or paintings), you can destroy that property whenever and however you want.[2] But once you have sold that property, you can’t - obviously you can’t sell someone a house then burn it down once the check clears. And personal property is different than intellectual property, because you can’t destroy intellectual property - a copyright is not any one physical copy of a creative work, but the abstract concept of that work, which can’t be ripped up and thrown away. The only way to “destroy” a copyright is to allow it to fall into the public domain, which doesn’t destroy it at all, but only destroys the copyright owner’s ability to make money from it.

So how can Banksy legally shred a painting seconds after the auctioneer declared it sold? The answer is that he can’t, although there are several situations in which he could probably get away with it. Let’s explore a few: 

The first and simplest scenario is that all the parties in this transaction are in on the ruse. There has been speculation that Banksy himself was involved in the bidding and may even have bid himself. In any case, as long as the buyer knew that the painting would be shredded and bid anyway, there’s no problem.

The second and more likely scenario is that the buyer did not know that the painting would be shredded, but accepts the shredded painting anyway because he knows that it is more valuable after being shredded. A plain Banksy painting may be worth 1.4 million pounds, but a Banksy painting that contains a hidden Easter egg and was part of a dramatic, viral, Banksy-brand stunt is worth vastly more. The auctioneer even declared that “we’ve been Banksy-ed” in a fond tone after the shredding - he knew that the stunt increased the painting’s value rather than destroyed it.

The third scenario, however, is more interesting to the lawyers in the room. Even if no one at the auction house had been involved or informed of the potential shredding, and even if the painting had been fully destroyed to the point that it could not be displayed or conserved in any way, Banksy may have legal protection for the destruction under a provision of United States copyright law called VARA - the Visual Artists’ Rights Act. Be warned, however; whatever protection he may have for his stunt under VARA would be a stretch and would require some creative lawyers. To understand, we need to learn more about VARA itself.

VARA is a very interesting law. While it is a part of the Copyright Act - which, remember, applies to abstract works - VARA applies to physical art objects; things like paintings, sculptures, and photographs or prints of a limited number. And while the Copyright Act grants rights to the owner of a copyright - i.e. the person who bought the copyright - VARA grants rights to the author of an artistic piece - i.e. the artist who made the work. What’s more, the VARA rights held by the author of a painting are permanent and perpetual; the artist maintains these rights even after he sells the painting. VARA is intended to help artists maintain their reputations and artistic integrity by giving them some rights over their works - and remember that in the art world, the value of an artwork depends largely on the reputation of the artist. So we know that even after the auctioneer banged his gavel, Banksy has some rights over the painting. But what rights?

Here’s where the legal arguments get stretchy. VARA grants artists three main rights: the right to ensure that your name is attached to your art, the right to ensure that your name is not attached to art that has been modified or mutilated in some way that is ‘prejudicial to [your] honor’, and the right to prevent the modification or mutilation of your work that would be ‘prejudicial to [your] honor.’ But these rights only give you the power to prevent a mutilation or destruction, not to effect a mutilation or destruction. How could Banksy use a law that allows an artist to prevent destruction or mutilation, to allow him to destroy a painting?

Banksy is a guerrilla artist. He’s known for making political statements that criticize capitalism and militarism - it could be argued that Banksy would consider his art being sold at auction for so high a price to be a ‘mutilation’ that was ‘prejudicial to [his] honor,’ and it could be argued that the only way for Banksy to prevent such a mutilation would be to destroy the painting altogether. These arguments would be tenuous and unlikely to succeed - a judge would probably say that offering a painting for sale is never ‘prejudicial’ to anyone’s ‘honor,’ and that Banksy could have prevented the sale by simply… never giving the painting to Sotheby’s in the first place. But who knows? Anything is possible with creative lawyers and a client eager to push the boundaries of the law; a client like Banksy, who would satirize the auction house world by shredding a painting mid-bid.

[1] A quote often attributed to either Pablo Picasso or Mikhail Bakunin.

[2] Within limits.