Indonesia – Anonymous Artists And Intellectual Property Law.

Such is Banksy , an anonymous British street mural artist, political activist, and film director, active since the 1990s. His phenomenal works are satirical street art that combines dark humor, including the socio-political circumstances of a country, with graffiti and executed in a distinctive stencil technique. His works are not only on the walls but are also poured on canvas, in the form of conceptual sculptures, and even the film “Exit Through the Gift Shop” which was nominated for the Academy Awards. His work is protected by Pest Control, a special organization formed by Banksy.

At the end of 2020, 6 trademark projects registered by Banksy at the European Union Intellectual Property Office (EUIPO) were rejected. The 6 projects are: Laugh Now, Radar Girl, Girl with an Umbrella, Love Rat Graffiti, Bomb Hugger and Flower Thrower. Graffiti card company Full Color Black Ltd. is the company behind the invalidity claims of trademarks for five works by anonymous street artists except Flower Thrower. Banksy first applied for the European Union Trademark (EUTM) trademark in 2018 for Laugh Now, and the cancellation was filed in 2019 on the grounds of bad faith (registration does not use original identity and trademark registration is not for selling but for owning the copyright to his work). The EUIPO later stated that not only one, but five of Banksy’s works were based on bad faith. Since it was found that all six cases were based on bad faith, the EUIPO considers that Banksy had no genuine intention to use the mark for trade. Based on this, copyright enforcers cannot follow up on the case unless Banksy discloses his identity.

There are also several factors that put Banksy at a disadvantage:

1. Works created are in public property space, not private property.
2. In 2006, Banksy issued a statement that ” copyright is for losers “, however that statement did not invalidate his right to register his work.
3. Banksy allows anyone to download his work, for non-commercial use.
4. Banksy acknowledged that third parties were using his work for profit, but no legal action was taken.

Mural artists have both positive and negative sides. The positive side of the mural is the criticism from several parties or the public which is conveyed through satirical visuals. The negative side is that this mural activity is against the law and the acquisition of his copyrighted works is still often questioned because of ‘vandalism and infringement’.

The importance of identity in the registration and recording of an Intellectual Property (KI). It is described in Article 1 Point 2 of Law no. 28 of 2014 concerning Copyright (UUHC), that the Creator is one or several people who individually or jointly produce a creation that is unique and personal. Article 1 Number 27 UUHC also explains that a person is an individual or a legal entity. Meanwhile, street artists who have anonymous nicknames cannot register or register their work.

Article 4 paragraph (2) letter b and c of Law no. 20 of 2016 concerning Marks and Geographical Indications (UU MIG) explains that, an application for trademark rights must have an identity that at least is the full name, nationality and address of the Applicant, the full name and address of the Proxy if the Application is submitted through a Proxy.