This article is reproduced here by kind permission of The Times.
An inspection of the lease shows the property issues may be fairly clear-cut, the intellectual property issues less so
You know that you are a dyed-in-the-wool lawyer when, hearing about the sale of a Banksy artwork carefully carved out of the side wall of a Poundland in Wood Green, North London, your first thought is not the sad loss to the community but whether or not the owner (if indeed it was the owner) did have the legal right to remove part of the wall and sell the artwork.
I wanted to see the Poundland lease…
So yesterday, I managed to obtain a copy from the Land Registry. As I thought, the letting to Poundland is of the interior only and specifically excludes external walls and surfaces. The artwork is on an external wall.
But that alone does not mean that the owner is home and dry. Once a building has been let, notwithstanding that parts of it, eg, the structure, have been retained by the owner, this does not mean that the owner has carte blanche to alter or interfere with the retained parts.
This is why a well-drawn lease (from the owner’s point of view) will always allow the owner to deal with the retained parts of its building in various ways, notwithstanding the interests of the tenant.
In this lease, we find a clause that reserves the right for the owner to “build rebuild or execute any other works upon any adjacent or nearby premises (including any other part of the Development) in such manner as the Landlord… may think fit notwithstanding any interference with or damage caused as a result to the Premises (but making good any damage so caused to the Premises… and without any liability to pay compensation”.
This may sound wide in its scope to non-lawyers, but is relatively standard. The reservation appears sufficiently wide to allow the owner to hack out part of the external wall. The artwork is not situated on an area actually demised to Poundland and even if Poundland might want to argue that the image, named Slave Labourwould not have been there without its presence, I suspect that is not an argument they would wish to run.
There might also be an argument that the removal of the artwork was not within the scope of the reservation. I expect that the draughtsman did not anticipate the possibility that the side wall of the premises would be used as a canvas by a graffiti artist. I do not think that the argument would succeed as the words are plain.
And what about property of the intellectual kind? Can an act of graffiti, the carrying out of which is, of course, a criminal offence under the Criminal Damage Act 1971, ever be the basis for a successful claim by the artist in intellectual property rights? Siting the artwork on another’s building, where there is no possibility of retrieval, might well be seen as an implied assignment of any rights that the artist may have had, might it not?
So while the real property issues may be fairly clear-cut, the intellectual property issues may be less so.