Half Shredded Banksy to be Reauctioned—Shredder and Moral Rights Problem Both Disabled

Three years ago Banksy’s Girl With Balloon was famously auctioned at Sotheby’s in London for over $1,000,000 and, immediately after the hammer fell, half-shredded by a device inserted in the work’s frame. The auction “winner” elected to accept the sale, after which Banksy renamed the work as Love is in the Bin and reauthenticated it.[1] The half-shredded work is now returning to the auction block.[2] This time the expected take is well above the original hammer price. None of this is really surprising. The shredding itself was both a critique of the go-go, high price art market and a perverse statement of gratitude by Banksy for receiving a seven figure sum for his work.

The last time I wrote at length about the shredding, I wondered about the moral rights issues attached to the work after the auction. Could, for example, the auction winner have disabled the shredder in some way without violating the moral rights provisions of U.S. copyright law (assuming that our law controlled the issue) barring mutilation of a work when it is prejudicial to the artist’s honor or reputation.[3] Since the shredder was an integral part of the work, it may well have been unlawful for it to be disturbed. Whether the disabling would have enhanced or prejudiced Banksy’s reputation, of course, is unclear. Pulling a prank on him might actually have enhanced his renown! After all, given Banksy’s reputation, he may well have wanted to reserve the right to shred the whole thing if it ever went up for a public sale again.

But now we learn that after the original auction, Banksy or one of his aides, disabled the shredder.[4] How that was done, or what the mechanism was that originally initiated the shredding, is still unknown. But any new buyer is now assured (at least to the extent we can rely on Banksy) that purchasing the work does not carry with it the risk of further shredding. Too bad. I would have enjoyed watching the tension in the auction house as the hammer fell for the second time at the end of the sale.

[1] For more on the affair see, Richard H. Chused, Protectable “Art”: Urinals, Bananas, and Shredders, 31 Fordham Intell. Prop. Media & Ent. L.J. 166 (2020), https://ir.lawnet.fordham.edu/iplj/vol31/iss1/3; Anna Tichy, Banksy: Artist, Prankster, or Both?, 65 N.Y.L. Sch. L. Rev.. 81 (2020-2021).

[2] James Tarmy, The Shredded Banksy Is Back, With a Much Higher Price, Bloomberg (Sep. 3, 2021), https://www.bloomberg.com/news/articles/2021-09-03/shredded-banksy-painting-is-back-at-auction-with-a-much-higher-price (last visited Sep. 3, 2021); Eileen Kinsella, Banksy’s Infamous Shredded Painting Is Out of the Bin and Back at Auction—for Nearly Four Times Its Previous Price, Artnet (September 3, 2021), https://news.artnet.com/market/banksy-shredded-painting-sothebys-2005000 (last visited Sep. 3, 2021).

[3] Chused, note 1 supra, at 220-221. For the U.S. moral rights provisions, see 17 U.S.C. §106A.

[4] See Tarmy, note 2 supra.