When State Street Global Advisors installed the statue known as Fearless Girl directly in the path of the iconic Charging Bull bronze statue in New York’s financial district, few could have imagined that the symbolic stare-down could wind up in court. Roughly one month after Fearless Girl made its appearance on the eve of International Women’s Day to highlight gender equality issues on Wall Street and in board rooms, Italian artist Arturo Di Modica, creator of Charging Bull, fired off a letter to New York mayor Bill de Blasio, demanding that Fearless Girl be removed. Di Modica based his demands, in part, on two distinct areas of copyright law.
Derivative Works
Far beyond just the right to make copies, the Copyright Act also grants to “authors,” or artists, the exclusive right to create “derivative works.” A “derivative work” is based upon the original work, but “recast, transformed or adapted.” Common examples of derivative works are screenplays based on novels, books translated into different languages, or poems set to music. However, any work that modifies the original such that, as a whole, it represents a new, copyrightable work is a derivative. For example, even though you may have paid an artist to create a special painting for your lobby, unless you also obtained an assignment of the copyright or a specific license to create derivative works, incorporating that painting into your corporate logo, or animating it for a television commercial, would be infringement.
Does Fearless Girl modify Charging Bull? There can be no doubt that Fearless Girl takes its meaning from the statue’s placement in front of Charging Bull. The proximity of Fearless Girl to Charging Bull was no accident, and not like the simple placement of two works of art next to each other in a museum. Fearless Girl stands a mere 25 feet away from Charging Bull, the eyes of her 4-foot frame staring directly at, and standing firm against, Charging Bull. As Di Modica’s attorneys have also noted, Fearless Girl is made out of bronze, with a nearly identical patina to Charging Bull. Further, in placing Fearless Girl in the plaza adjacent to Charging Bull, State Street Global Advisers extended the cobblestone paving under Charging Bull, visually unifying the two statues in one display. Does Fearless Girl stand as a separate work of art? Or is the statute a modification of Charging Bull and, as such, a derivative work as alleged by Di Modica? Arguments can certainly be made for both sides.
From a non-legal perspective, Di Modica’s main beef with Fearless Girl appears to be twofold: Fearless Girl was part of a commercial advertising campaign for State Street Global Advisors’ SHE investment fund, coopting his Charging Bull for what he called a “gimmick” ad; and, Fearless Girl changed the meaning and public perception of Charging Bull.
Di Modica claims he created Charging Bull as a response to the stock market crash of 1987. In December of 1989, covertly and without a permit, he placed Charging Bull across from the New York Stock Exchange and declared it “a Yuletide symbol of the strength and power of the American people.” As such, Charging Bull represented the strength and fortitude to forge ahead after disaster – it represented hope and a bullish attitude towards the future. According to Di Modica’s attorneys, due to the placement of Fearless Girl, “Charging Bull no longer carries a positive, optimistic message. Rather, it has been transformed into a negative force and threat.” Far from representing hope and fortitude, Charging Bull now symbolizes the menacing evils of male-dominated Wall Street. But does an artist have the right to control the perception and meaning of their work?
Moral Rights
While artists cannot generally control the perception and meaning of their work to others, the Visual Artists Rights Act of 1990 does provide artists with limited “moral rights,” including rights of attribution and integrity, even in circumstances where they no longer own the copyright in the work. The Act is very narrow in scope and only applies to original works of visual art, which would include sculptures. The right of attribution is simply the right to claim authorship over a work of art (or the right to prevent the use of your name in connection with a work of art you did not create). Rights of integrity, however, provide the artist with the right to prevent any “intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation.”
Di Modica’s claims with respect to moral rights are, again, based on the notion that Fearless Girl is not a separate, standalone piece of art, but one that modifies Charging Bull, changing it from a symbol of hope, to a symbol of sexism. To prevail on this claim Di Modica would need to prove not only that Fearless Girl has modified Charging Bull, but also that his honor or reputation has been damaged as a result. Some might argue that Di Modica’s own insistence on removing Fearless Girl, which has instantly become a popular attraction and iconic symbol in its own right, has done more damage to his reputation than the original placement of Fearless Girl near Charging Bull. Mayor de Blasio himself captured this sentiment upon receipt of the letter when he Tweeted, “Men who don’t like women taking up space are exactly why we need the Fearless Girl.”
While many commentators want to resolve the issue based on their affinity for Fearless Girl or their affinity for Charging Bull, the legal issues involved stretch far beyond these two statues and their symbolism. The issues impact artists, and those who purchase and admire that art, everywhere. Fearless Girl and Charging Bull will forever be intertwined in many people’s minds and in history books. If Di Modica prevails in his claims under the Copyright Act, however, the two will have to be physically separated.
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