James Mcqueen copyright

[Gaz1984mcc]

Could do with some advice i recently received a letter from James McQueen's solicitors regarding the use of the Banksy monkey from the famous 2002 mural laugh now. This is one of Banksy's most famous images and i just wondered how it is possible that James McQueen is claiming copyright of this image just because he has altered it slightly. I have asked if they have a licensing agreement for the image but have not received any reply on this. They are also asking that i do not use any monkeys on my artwork even if it's something i have created myself as i already have some monkey images i have been using for the past 6 months.

below are links to James McQueen's monkeys and Banksy's monkey. Everyone that recognises the monkey will know that this is a Banksy image and not James McQueen. Could anyone give me advice that because the image has been slightly altered James McQueen now owns the copyright to it? And can stop anyone from using it or altering it and even stop them from using any monkey motif on their artwork?

https://www.castlefineart.com/assets/im ... -29-05.jpg

https://banksyexplained.com/wp-content/ ... SY-PIC.jpg

Thanks
Gaz

[AndyJ]

Hi Gaz,
If your use is based on Banksy's original monkeys, and doesn't involve any of the extra detail from James McQueen's work, then you are not infringing McQueen's work. However if you do wish to use any part of McQueen's added material then you would need permission from the artist to do this. James McQueen only owns the copyright in that part which he has added.
Obviously, you technically need Banksy's permission to use his artwork, but as he has stated many times that he doesn't believe in enforcing his intellectual property rights, I don't think you need worry about that. I assume the James McQueen is also acting on the same basis that Banksy isn't going to sue him, and so he probably doesn't have a licence from Banksy.

[Gaz1984mcc]

Thanks for the reply Andy so if i use james mcqueens version of the monkey? Although the only difference between his and banksys is a hat on one monkey and a paintbrush in the hand of another. I could get sued for copyright infringement by james mcqueen even though banksy actually has an active trademark on the monkey.

But I could use banksys monkey without infringing on james mcqueens copyright? Or does james mcqueen really have right to sue me for using the original banksy motif?

Thanks
Gaz

[AndyJ]

Hi Gaz,

Yes the only part of McQueen's work which earns him any copyright is the bit he has added - so as you explain, the added hat and paintbrush, for instance. If you don't need to reproduce the hat and the paintbruch, then you don't need McQueen's permission, since the underlying monkey is entirely Banksy's work. As you are probably well aware, Banksy's monkeys have been widely reproduced in photographs and prints which have then been put on sale by others not connected to Banksy or Pest Control. I have seen a number where the photographer has claimed copyright in his reproduction of Banksy's artwork, but such claims are highly dubious since the photographer has probably not imbued his photo with sufficient new creativity necessary to meet the criterion of 'originality' required by the current day legal test.

McQueen's work is different. He has added some significant new features which almost certainly take his work over the originality threshold - although the only part to which this protection extends is his own addition. Legally it probably doesn't matter whether or not he sought Banksy's permission, although if Banksy chose to sue him, and McQueen lost, he would also lose any claim to copyright in his additions to the underlying work.

I don't think that fact that Banksy has tried to register the work as a trade mark is an issue here. First of all, it appears that all of the marks Pest Control have tried to register in the UK and the EU have been either cancelled or rejected during the application process. And in any case, a valid trade mark registration only has limited effect in preventing reproductions of the artwork in circumstances which are not directly related to trade.

[Gaz1984mcc]

So do you think I'm safe to use the banksy monkey without getting sued by james mcqueen. I have said to his solicitors that I will remove the james mcqueen version. And will instead use the banksy version but they have said that I'm not allowed to use any monkey which seems like over use of copyright protection to me but hey I'm not a legal expert.

Also could I also edit the original banksy monkey and make my own variation of it without getting legal action from james mcqueen.

Thank you

[AndyJ]

They are clearly talking nonsense if they say that you cannot use any monkey picture. If you use the unaltered Banksy image then McQueen will have no grounds for bringing a claim against you. At present his solicitors appear to be trying to scare you in the belief that you have an incomplete knowledge of the law. You should call their bluff.

[Gaz1984mcc]

Thanks for the reply andy this is the email i received back from them today when i said i would remove the james mcqueen monkey from my artwork i said to them i would use the original banksy monkey instead. The last part of the email is interesting to me regarding the licence i mean its clearly Banksy's monkey its not an original creation just putting a hat on a monkey and a paintbrush in the hand of the monkey.

Our client is pleased with your agreement to remove its monkey motif from your works.

However, it seems you still intend to use a monkey motif. The use of any monkey motif on your works will suggest a connection with the work of James McQueen Art and cannot be permitted.

On the above basis, our client is willing to consider this dispute resolved if you remove any mention of James McQueen from your works (as you have previously stated you are willing to do), and any monkey motif that feature on the works. So, you are free to continue producing vintage book covers with witty/ satirical phrases on them, provided they do not refer to our client or contain a monkey motif of any form.

We trust the above is clear. Our client is willing you permit you until 12:00pm on Monday 14th October 2024 to remove the infringing works.

Finally, we would urge you again to take advice if you are in any doubt as to our client’s rights. Further, for completeness our client does not require a licence to use any third party works. The Monkey Motif used by our client is an original creation of James McQueen Art.

Yours sincerely

[AndyJ]

Gaz,

I have no idea what is being referred to by the phrase Monkey Motif. It is quite clear to me that Banksy's original monkeys are entirely separate and as they pre-date McQueen's work, McQueen cannot claim any copyright in those parts which he has extracted from Banksy's work. McQueen's monkeys are obviously based on Banksy's work, so if this is what is meant by the 'monkey motif', McQeen's demands are without any merit. McQueen is by his own admission an appropriation artist, which means that he takes elements and memes from existing art and adapts them. By definition he walks a fine line between infringement and may be an acceptable amount of an existing work which may be copied. British intellectual property law is not as flexible as the US doctrine of Fair Use which has allowed American appropriation artists such as Richard Prince and Jeff Koons to thrive in this genre.

What is news to me is the comment about your mention of McQueen's name in your reuse of the monkey images. I am not clear about the reference to your 'vintage book covers' which it seems to me is what McQueen also specialises in. Would I be right in thinking that your art inhabits much the same space as that of McQueen? If this is the case, then this intervention by his lawyers could seen as being as much about scaring you off his patch as it is about copyright. If your work is indeed satirical, then you have some added protection from liabilty due to section 30A of the Copyright Designs and Patents Act which permits the limited use of the work of others specifically for the purpose of satire, parody or pastiche, which might otherwise be seen as infringing. Indeed McQueen no doubt also relies on this fair dealing exception for his own work.

[Gaz1984mcc]

That's correct Andy I do also sell book covers that are based on the penguin and albatross book covers. Mine are all personalised though. Customers add their own text, book colour and motif it's not that I always sell the print with the banksy motif as many customers use their own motifs or photos instead.

I do think that mcqueen is just trying to get me off his patch as such. Which to me is just bs this guy clearly copied his style from harlaand miller. Some of his early work was book covers with the quote who the f@#k is harland miller. And the series that got him well known was his covers that said who the f@#k is banksy they featured all different images created by banksy.

All of his work is copied yet he thinks now that he owns all of these elements of the art style. Surely he can't now own the genre/style? I mean at the start his lawyer was saying that the book cover style was copyrighted by james mcqueen. Even though it's clearly based on penguin and albatross books style.

Thanks
Gaz

[AndyJ]

Hi Gaz

You have summed up my thoughts entirely. I think that, should you choose to continue to engage with McQueen's solicitors, you can be equally forceful with them about their bullshit. They know that they can't take this to court and expect to win, so this is just posturing.

You might like to read up on the legal concepts of restraint of trade and anti-competitive practices. The latter doesn't really apply to individuals so much as to companies, but the ethics of the situation are much the same. Were this to be a case about trade marks or design rights, you could raise the matter of making unjustified threats but unfortunately the law doesn't cover copyright claims.

Andy

[Gaz1984mcc]

Thanks For the Advice Andy I have done plenty of reading on your points. I will update if I have anymore correspondence from dmh stallard - james mcqueens solicitors.

Got to say that while you can't give official legal advice the work you do on these forums is outstanding.

Thank you
Gaz