By Emily Wigoder
In September 2020, Matt Round used a generative adversarial network (‘GAN’) to produce an artificial intelligence software that he has named GANksy. This GAN has been trained to produce images using a portfolio of images exclusively from ‘a certain street artist’. These images are now being sold from Round’s website. Whilst Round has refused to specify exactly which street artist’s work has been used, both the title of the project and the resulting images mean that we can fairly presume it to be Banksy’s artworks. The fact that Round refuses to state the name of the artist whose works have been used is one indication that we have here a potential legal issue. Since it is (almost certainly) Banksy’s work being fed into the GAN, do they have a legitimate claim to infringement of copyright?
In order to understand whether Banksy could claim infringement of copyright, we must first assess the subsistence and ownership, in order to establish not only that copyright subsists with respect to the artworks, but also that Banksy owns that copyright. It is clear that the copyright subsists with regards to Banksy’s artworks, since they are evidently original artistic works. Identifying authorship is also possible. Under s9(1) of the Copyright, Designs and Patents Act 1988 (‘CDPA 1988’), the ‘author’, in relation to a work, means the person who creates it.
The CDPA 1988 further provides that ‘the author of an artistic work has the right to be identified whenever - (a) the work is published commercially or exhibited in public, or a visual image of it is communicated to the public’ (s.77(4)(a)), and that ‘If the author or director in asserting his right to be identified specifies a pseudonym, initials or some other particular form of identification, that form shall be used’ (s.77(8)). Banksy may well have claimed that ‘Copyright is for losers’ in one of their artworks, but by signing the work, and others that they have created, Banksy still asserts their right to be identified as the author of these works. Section 11(1) further provides that ‘The author of a work is the first owner of any copyright in it’. On the face of it, it seems as though Banksy does have ownership of the copyright for his artworks, whilst still being able to maintain his anonymity.
Our next step would be to identify the infringing act, which is where we find the crux of the issue. The relevant infringement in the case of GANksy, if there is a case to be made here, would be infringement of copyright by copying. In particular, this would employ the definition of copying in relation to artistic work in the CDPA 1988: ‘reproducing the work in any material form. This includes storing the work in any medium by electronic means’ (s.17(2)). There is an important caveat to this, however, in The Copyright and Related Rights Regulations 2003, which states that copyright in an artistic work is ‘not infringed by the making of a temporary copy which is transient or incidental, which is an integral and essential part of a technological process and the sole purpose of which is to enable— (a) a transmission of the work in a network between third parties by an intermediary; or (b) a lawful use of the work; and which has no independent economic significance’ (reg. 8(1)). For Round’s temporary copy-making of Banksy’s work to be legal, he would need to be able to demonstrate that the sole purpose was to enable ‘a lawful use of the work’. If the works that GANksy has produced are copying Banksy works, then the sale of these works is unlawful. So, Round would need to sufficiently prove that the artworks that GANksy has produced are original artworks, which he then has a legal right to sell.
Before we discuss whether Round could successfully prove the originality of his software’s artworks, let us first follow through on Banksy’s potential claim. So, we have established that the infringing act here would be infringement of copyright by copying, working on the basis that this has been done without the consent of the author. The next step would be to infer a causal connection between Banksy’s work and that of the defendant, Round. In order to establish a prima facie causal connection, Banksy would need to prove (i) that Round’s work was made at a time when he had access to Banksy’s work, and (ii) that Round’s work is objectively similar to their own artwork. The first part of this is demonstrable through the popularity of Banksy’s work, and the fact that the GANksy project was produced in September 2020. The second part of this can be explored using the three-stage test in Designers Guild Ltd v Russell Williams (Textiles) Limited  UKHL 58. The first stage is to identify the features of the claimant’s work that the claimant is arguing were copied. The second stage is to then compare the two works, noting similarities and differences in order to determine whether there is more similarity than could simply be chalked up to coincidence. The third stage, if such a causal connection has been established, is to consider whether the copied features constitute a substantial part of the claimant’s work.
The key features that have been identified by many as holding similarity between Banksy’s works and those of Round’s GANksy are those which the software is trained to learn from the artworks: structures, textures, and common themes. Since these similarities are the result of the software being trained on Banksy’s artworks, these similarities are plainly not coincidental. This leads us to a particularly interesting part of the case, the third stage of the Designer’s Guild test – whether these copied features constitute a substantial part of Banksy’s work. Banksy’s work is often recognisable due to its structure, texture, and theme. However, the features of Banksy’s artworks that have drawn such attention to the artist are his satirical and subversive epigrams, and the dark humour of his social commentary that is contained within his works. These are not features which the GAN is currently able to copy. So, Banksy could argue that the copied features constitute a substantial part of his work, but this is not a straightforward point, and may not be successful.
If Banksy sought to make this claim, Round would then need to defend his GANksy, arguing that at least one of the elements of Banksy’s claim has not been made out. There are several ways in which he might attempt to do this. Firstly, Round has been incredibly careful to at no point state the name of the ‘certain street artist’ whose portfolio he has utilised for this project. As a result, he might argue that Banksy has no claim here at all, and that any similarities between the artworks produced by GANksy and Banksy’s portfolio are coincidental. However, considering both the perceived similarities and the name of his project, this argument would be unlikely to be very persuasive. Alternatively, he could argue that he has not copied the work, but merely summarised information conveyed by the work. For example, he could argue that his software has summarised information concerning the way that street art is created, and the style that it tends towards, and has then produced new artworks employing this information. Finally, Round could argue that he has copied an insubstantial part of the claimant’s work, on the basis that the most substantial distinguishing element of Banksy’s artwork is the political subtext rather than any particular part of the aesthetic.
So, does Banksy have a legitimate claim to infringement of copyright in this fascinating case? It seems as though the judgment would come down to a few key issues: whether the artistic works being produced by GANksy demonstrate originality, whether the GAN software is copying Banksy’s works rather than summarising information from them, and what might be considered a substantial part of Banksy’s works. The prospective ruling on cases such as this in the future will have the potential to greatly influence our understanding of the purpose of copyright law. Will the courts rule in favour of artists such as Banksy, focusing on protecting the integrity of his works? Or will they rule in favour of creators such as Round, intent on fostering creativity and innovation within the art world? Whilst we can provide no conclusive answers here, the progress being made within the field of AI image-production suggests that the aforementioned issues will become increasingly relevant in the oncoming years.