Stuck Between A Copyright and A Trademark

Banksy, an anonymous street artist based in England, famous, or infamous, for satirical and subversive graffiti, recently lost the trademark for one of his most well-known pieces, “Flower Bomber,” which depicts a masked Palestinian throwing a bouquet of flowers.  The work was first painted on the wall in Jerusalem that separates Israel from Palestine and champions peace rather than violence.  In 2005 Banksy’s company, Pest Control, sued Full Colour Black , a greeting card company that frequently used Banksy artworks. Subsequently, in spring 2019 Full Colour Black filed a motion seeking cancellation of Banksy’s Flower Bomber mark, claiming it was filed in bad faith. In an attempt to show use in commerce, during the fall of 2019, Banksy opened a London store, Gross Domestic Product, despite never having previously regularly manufactured or sold merchandise associated with his artworks. Indeed, at the store opening Banksy even remarked that the store was strictly for the purpose of not losing the mark. Thus, in September 2020, The European Union Intellectual Property Office (EUIPO) declared the mark invalid on grounds of bad faith, with the aim to create or keep a share of the market by selling products simply to circumvent the law and inconsistent with honest practices.  The EUIPO based their decision on the above evidence, Banksy’s own disdain for copyright law, famously stating “copyright is for losers,” and the very message that his art produces – power is flimsy and should be deceived.  The litigation highlights how Banksy is stuck between a rock and a hard place with having to either choose between his anonymity, from which much of his cult following stems, or exclusive right of his brand and protection from counterfeiting.

Seemingly Banksy is further under fire from an AI software named “GANsky” created by Matt Round. Although Round neither confirms or denies his machine is inspired by Banksy, the name and the 256 pieces of art GANsky has so far produced, clearly indicate otherwise. GANs, generative adversarial network, which closely mimic human thought processing, can recreate artwork by learning the structure and texture of existing artworks by first creating a new image from a data set and then distinguishing fake images from the human-made images.  The GAN art movement began in 2015 when a Google engineer developed such an algorithm, DeepDream, and freely shared the method online, which artists then eagerly began experimenting with. Neural network art such as GANsky raises concerns regarding the authorship and ownership of a piece of work or idea which has grown from multiple individual contributions.The fusing of art and coding, in which both industries see appropriation running rampant but where sharing is integral, exemplifies the difficult paradigm regarding intellectual property rights and how much of a creator’s product should be altered to become sufficiently different from the original.

Banksy’s recent intellectual property trials and tribulations and the neural network software of GANs highlight the complex issues the art, technology, and legal industries face regarding, copyright law, trademark law, art authorship and ownership, and fairness to artists.



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