Banksy, Disney, and Fair Use

Have you been reading about Banksy’s new theme park, Dismaland, which offers a poignantly sarcastic look into popular Western culture?

In ‘Dismaland’: A Theme Park by Banksy  The Atlantic writer Katharine Schwab explains that “several of [Banksy’s] 10 new works, including a distorted Little Mermaid who sits on a rock in the castle’s lagoon, use copyrighted material. Unsurprisingly, ‘legal representatives of the Walt Disney Corporation’ are ‘strictly prohibited’ from entering the park.”

Given the copyright statue of artist lifetime + 70 years, the majority of Bansky’s borrowed images must indeed violate copyright. This reflects the embedded human nature that structures copyright. Sure, Disney can sue, but then again, they can also profit from this morbid, real-life remix of part of their world.

Or, as my colleague Emily Cash points out, does Banksy’s Dismaland fall under the protection of Fair Use?

The University of Texas Libraries Copyright Crash Course explains that “For those of us who would appreciate a clear, crisp answer to that one, we’re in luck. The Center for Social Media and Washington School of Law at American University are sponsoring development of a growing number of Fair Use Best Practices statements that inform a fresh approach to the subject and make it easier than ever to know what’s fair. The Best Practices statements follow recent trends in court decisions in collapsing the Fair Use Statute’s four factors into two questions: Is the use you want to make of another’s work transformative — that is, does it add value to and repurpose the work for a new audience — and is the amount of material you want to use appropriate to achieve your transformative purpose? Transformative uses that repurpose no more of a work than is needed to make the point, or achieve the purpose, are generally fair use.”

Guided by these Best Practices we see how Banksy avoids the dilemma of copyright infringement. And, of course, Disney narratives tend to be repurposed versions of already created materials themselves.