If the Banksy rat does hit the auction block, it would not be the first piece of public street art put up for sale to enter private hands. The artist’s Slave Labor (2012), painted on the side of the British discount retailer Poundland, sold for $1.1 million in 2013. Flower Girl (2008) fetched roughly $200,000 for the owner of the Los Angeles gas station wall that it adorned in a sale that same year. And there has been talk that the artist’s mural in the British city of Dover, depicting a man chiseling a star off the European Union flag, would be sold by the building’s owners before it is demolished.
The removal and sale of such work is extremely controversial and not always successful, but it is almost never illegal. Created in the absence of any contract or agreement with the property owner, Banksy’s illicit public art in the United States by and large belongs to whoever owns the bricks on which it appears.
“If you put a piece of artwork on property belonging to someone else, the owner of that property can generally do whatever they want with it,” said Andrew Gerber, a founding partner at Kushnirsky Gerber PLLC, where he often represents artists in copyright infringement disputes. (Whether the artist can enforce the copyright to their illicitly created work is a separate, and sometimes tricky, question from who owns the physical object, he noted.)
For this reason, legal challenges to the sale of a Banksy work of public art are almost nonexistent. One major exception came in 2015, when a British judge intervened to halt the sale of Banksy’s Art Buff (2014), which was chiseled off a wall in Folkestone, Kent, and sent to the U.S. to be sold by the building’s leaseholder, a company called Dreamland Leisure. The work was valued between £300,000 and £470,000.
While the judge’s verdict marked an exceptional outcome, the basis of his rationale was traditional property ownership. The building’s owner gave the Creative Foundation, a U.K. arts nonprofit, the right to the work. The foundation then sued Dreamland, which was just the leaseholder, to halt the sale. A judge ruled in favor of the Creative Foundation, finding that a leaseholder’s responsibility to maintain the property doesn’t extend to allowing them to remove a valuable work of art for sale. Art Buff subsequently returned to the U.K., and is slated to be put on public view in the town where it was originally painted.