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30 May 2017

Charging Bull and Fearless Girl – a test case for a right to protect the integrity of ideas in conceptual art?

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The iconic sculpture “Charging Bull” by Arturo Di Modica has stood in Bowling Green in Manhattan for several decades. However, in March this year another bronze sculpture -“Fearless Girl” - was installed defiantly facing “Charging Bull” much to the dismay of Di Modica.

“Fearless Girl” was reportedly installed by fund managers State Street Global Advisors and advertising firm McCann New York as part of an advertising initiative. Underneath the sculpture appears the text “Know the power of women in leadership. SHE makes a difference”, a positive message which cleverly incorporates “SHE”, State Street’s stock market ticker symbol. Permission has been given to allow Fearless Girl to remain in its current location until March 2018.

In a letter dated 11 April 2017 apparently written by Di Modica’s lawyers to Bill de Blasio, Mayor of the City of New York, Di Modica’s lawyers request that “Fearless Girl” be removed from its current location and that damages be awarded to Di Modica for infringement of his rights.

Di Modica’s lawyers explain that “Charging Bull” was created as a response to 1987’s stock market crash and installed in December 1989 in Manhattan as a symbol of “the strength and power of the American People”.

Di Modica’s lawyers claim that the sculpture of the young girl only becomes the “Fearless Girl” by virtue of its placement in front of the “Charging Bull” and that it forces “Charging Bull” to become part of a new derivative work in breach of Di Modica’s copyright. They assert that the use and commercialisation of “Charging Bull” amount to a breach of Di Modica’s rights of reproduction, to prepare derivative works and to distribute copies of his work under 17 U.S.C. section 106.

Di Modica’s lawyers also assert that Di Modica has a moral rights claim. They argue that the placement of the sculpture undermines the integrity of and modifies “Charging Bull” in violation of Di Modica’s rights under the Visual Artists Rights Act of 1990 (“VARA”) (17 U.S.C. section 106A). They say that, as a result of the placement of “Fearless Girl”, “Charging Bull” “no longer carries a positive, optimistic message. Rather, it has been transformed into a negative force and a threat”. Section 106A provides that 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 reputation”. As “Charging Bull” pre-dates VARA, it is not clear whether it is eligible for protection under VARA; US lawyer Nicholas O’Donnell has commented that it would only be eligible if Di Modica had never transferred ownership of the sculpture. Details of its ownership are not known.

In addition to copyright and moral rights arguments, Di Modica’s lawyers also assert that the placement of “Fearless Girl” dilutes the “Charging Bull” trademark, which is owned by Di Modica, in violation of the Federal Trademark Act (15 U.S.C. section 1125(c)).

The dispute raises the important question of whether an artist has a right to object to the placement of another work near their own where they consider that the proximity of the other work damages the idea or meaning of their own. Given that US law only appears to protect the physical integrity of an artwork, prohibiting “distortion, mutilation or other modification”, it appears that such a right does not exist under US law. It remains to be seen whether Di Modica will commence legal proceedings and whether the court will be called upon to answer the question conclusively.

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