She’s not even five feet tall, but she has been causing quite a stir. She is the Fearless Girl statue placed opposite the Charging Bull statue in New York’s financial district. Her placement has caused a stir, not only for the crowds she draws, but also for the claims of copyright infringement raised by Arthur Di Modica, the creator of Charging Bull.
Di Modica installed the 7,100-pound sculpture on December 15, 1989. At the time, financial markets were down and the future of the economy was uncertain. Di Modica created and installed the Charging Bull as a piece of unauthorized guerilla art, intending it to be a symbol of the “strength and power of the American people”. The piece was inspired by the phrase “bull market”, which occurs when prices are going up and people are investing in stocks. The piece became so popular that it now has a permanent home in the financial district, and has been there for almost 30 years.
At 50” tall, Fearless Girl, created by Kristen Visbal, is about as tall as your average 10-year-old. Next to Charging Bull, the 250-pound sculpture looks tiny. Fearless Girl, commissioned by State Street Global Advisors, an investment management firm known for its efforts to bring more gender diversity to financial leadership. Installed March 7, 2017 (the day before International Women’s Day), the piece was intended to “celebrate the importance of having greater gender diversity in corporate boards and in company leadership positions.” Currently, Fearless Girl has a one-year permit from the City of New York to remain opposite Charging Bull.
On April 12, 2017, Di Modica held a press conference on his claims related to Fearless Girl. While specifics on Di Modica’s claims were incomplete, he did indicate that the placement of Fearless Girl had transformed the message of Charging Bull into “a negative force and a threat.” Di Modica claimed that Fearless Girl would not convey its message without placement near, and artistic interaction with, Charging Bull. Because of this interaction, Di Modica’s attorney, Norman Siegel, claims that Fearless Girl is a derivative work. If Fearless Girl is found to be a derivative of Charging Bull, then her creation will constitute copyright infringement. Di Modica also claimed that Fearless Girl distorted his artistic message, leading some to speculate that Di Modica might make additional claims under the Visual Artist’s Rights Act, or VARA.
One of the exclusive rights of a copyright owner is the right “to prepare derivative works.” The historical notes to the Copyright Act of 1976 define a derivative mostly in terms of examples: “A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” In addition, derivative works would include works that tell new stories using characters and worlds developed by another author. Fan fiction would fall into this category, as would new stories told about old characters, like Sherlock or Elementary. These last types of derivative work perhaps most closely resemble what Di Modica claims Fearless Girl is doing to Charging Bull.
Di Modica’s argument here seems to be that Fearless Girl would not need to be fearless were it not for Charging Bull. Placed anywhere else, her stance would not evoke the courage and strength that it does in the face of the 7,100 pound Charging Bull. If that is the case, then Fearless Girl may derive a large part of her meaning from her placement near Charging Bull. Di Modica seems to say that Fearless Girl derives all her meaning from placement in front of Charging Bull. In the context of this claim, because her meaning is based upon the preexisting work of Charging Bull, Fearless Girl could be a derivative work. Creators of derivative works can face consequences including a loss of or inability to copyright their work, and monetary damages.
Claim based on VARA
The Visual Artists Rights Act (VARA) was signed into law in 1990. It was intended to bring the United States into compliance with the Berne Convention’s requirement that member countries protect authors’ and creators’ moral rights. Moral rights can differ between countries, but at a minimum, Berne Convention member countries have agreed that:
“[i]ndependently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to… object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.”
However, VARA does not provide the same level of protection as required by the Berne Convention. VARA only protects the creators of visual works, defined by the Copyright Office as “pictorial, graphic, or sculptural works, including two- and three-dimensional works of fine, graphic, and applied art.” Under VARA, “the author of a work of visual art… shall have the right… to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or representation.” This right is limited by some exceptions written into VARA. Changes to a work due to “the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification… unless the modification is caused by gross negligence.”
To make a claim under VARA, Di Modica would likely claim that Fearless Girl distorts or otherwise modifies Charging Bull, and that this change is “prejudicial to his honor or reputation.” While this may be a sound basis for a claim, as Charging Bull fits into the visual art category and the nature of the work is arguably affected by Fearless Girl’s presence, Di Modica would likely be unsuccessful in his claims. This is because his claims are based not on any physical change to Charging Bull itself, but on the “public presentation, including… placement”, of Fearless girl in relation to Charging Bull.
Neither Kristen Visbal nor State Street Global Advisors has provided a response to Di Modica’s copyright infringement claims.
During the press conference, Siegel would not say when, or if, a lawsuit would be filed. Should a lawsuit be filed, the derivative work claims would likely fare better with a court than claims based on VARA. Given VARA’s exemption of “lighting and placement” from issues that can be “prejudicial to [an artist’s] honor or representation”, Di Modica may have more success relying upon the argument that Fearless Girl is a derivative work. Even the derivative work argument is not a guaranteed success, as Di Modica will have to convince a court of law that Fearless Girl is “based upon” his Charging Bull sculpture. As noted, Di Modica has yet to file a lawsuit, so most information so far is culled from statements during and leading up to the April 12, 2017 press conference. The likelihood of success for any claim Di Modica may make will be easier to determine once we have filing documents to analyze.
What do you think of the copyright issues raised by Fearless Girl? Did we miss a possible claim in our analysis? Do you think Di Modica is likely to succeed on his claims? We would love to hear from you in the comments!
By Marley C. Nelson, Rights Management Specialist, Copyright Resources Center, The Ohio State University Libraries