No, The Wall St. Bull Sculptor Doesn't 'Have A Point'

from the nope dept

Last week, we wrote twice about sculptor Arturo Di Modica and his claim that the "Fearless Girl" statue, that was placed last month in front of his "Charging Bull" statue, violates his rights. As we explained, in detail, he has almost no legal case here. His letter to New York City argues three possible claims of action -- all of which would almost certainly be losers in court (as we detailed in that last post).

However, I still have seen a bunch of people arguing in support of Di Modica, claiming that he "has a point." Many have pointed to a blog post by Greg Fallis that is literally titled "Seriously, the guy has a point." Others have raised other issues in discussions I've seen (and taken part in...) on Twitter and Facebook. I still don't think he has any point at all, but I wanted to do a post addressing each of the key issues I've seen raised, and explaining why I think they fail as legitimate arguments.

Fearless Girl is an ad

I had debated mentioning this in the first post (and only obliquely noted that "there have been some criticisms" of Fearless Girl), but decided it was really meaningless. But people keep bringing it up, so let's address it. Yes, the Fearless Girl statue is an advertisement of sorts. The whole thing was created and financed by State Street, a massive investment firm, with help from McCann, one of the giant ad agencies. And a big part of the criticism is that State Street has a "gender diversity index" whose ticker symbol is SHE, focused on tracking the performance of "companies with the highest levels within their sectors of gender diversity on their boards of directors and in their senior leadership." And Fearless Girl has a plaque that says: "Know the power of women in leadership. SHE makes a difference." Many have, quite reasonably, argued that (especially given the capitalization of SHE) Fearless Girl is just an advertisement.

And the response to that should be... so what? As we've pointed out for many, many years, all content is advertising in some sense. It may be advertising for the artist. It may be advertising some idea. It may be advertising a theme. Di Modica's bull was "advertising" the resiliency of American capitalism. Just because it's advertising doesn't mean it's not artwork. And even advertising can have a positive social message. So, the claim that it's "advertising" doesn't really impact anything here. Yes. It's advertising. So what? It's also still art, and was created by a real artist whose own work and talents are unfairly diminished when you say that it's not art just because someone paid for it and it advertises something else. Or as our own Leigh Beadon points out:

Some are arguing that because there's money involved, that somehow changes things, but I don't see how. After all, the bull itself celebrates money and markets, so if you're suddenly arguing that money is bad, well, then... I'm not sure how that supports the argument that the artist has a point.

It uses the only copy of Charging Bull

This is the argument I've heard most often after the "it's an ad" argument, and I'd argue it's more persuasive, but still not very persuasive. The argument here is that, unlike a remix or standard appropriation art, where the original work remains untouched, the placement of Fearless Girl effectively incorporates Charging Bull such that Charging Bull can no longer be separate from Fearless Girl. If you are to accept the idea that putting another artwork near an original piece of artwork can never be allowed, even in a public place, and even if the latter piece incorporates the original to comment on it... well, you're going to run into a lot of problems pretty quickly. Because then you're arguing two things that are pretty difficult to justify: (1) that an artist should get absolute control over any other works near his or her own artwork, and (2) that artwork is defined by what is around it and so the context can never change.

Both things seem unjustifiable. On the first point, what if, instead of the Fearless Girl statue, someone created a placard (an artistic placard) protesting what they believed was unfair sexism on Wall Street and stood next to the bull? Would that lead to the same outcry that this somehow "diminished" the Bull? Or imagine a world in which an artist could force a museum curator -- or a private collection owner -- to not display some other artist's artwork next to his or her own, because the juxtaposition of the two pieces was deemed by the artist to be unflattering? Most people would think that is crazy. How one puts up a piece of artwork, and what pieces are put around it, are the decisions of those who control the physical pieces and have the rights to display them. Here, Di Modica dumped his bull on the streets of New York, and New York now has possession of the physical statue. It can decide how to display it.

Plenty of museums use the careful placement of different works to create juxtaposition and even direct criticism or commentary. It would be crazy to think that an original artist could bar any of that.

As for the second point, we don't have to look very far to see how silly it is: Di Modica himself placed the bull in the street in front of the NY Stock Exchange, specifically making a point about that particular financial market. He was commenting on the NY Stock Exchange and the fact that it represents a form of capitalism and free markets (whether or not you agree with that is beside the point). And yet, NYC moved Charging Bull around the corner. It is no longer directly in front of the NYSE, but people still get the context and they understand the intent.

I've seen people arguing that if Fearless Girl were removed to somewhere else it wouldn't make the same point, but that's not necessarily true. People are not dumb. They can understand context. And they can see how context changes. The Bull moved from the NYSE to a nearby park, and yet people still recognize that Charging Bull is commenting on the stock market and the Wall St. ethos. Yes, it helped where it was initially placed, but the mythology around the placement has stuck with the Bull. The same is likely true for Fearless Girl. Were it -- or the Bull -- to now move, many people would still remember and recognize the initial juxtaposition, and understand the intent (again, even if it was an ad).

But Fearless Girl changes Charging Bull's meaning

I've seen this from a few people, arguing that the artist must have some right of "control" over the meaning of the statue. But that's just not the way it works. This is a similar argument that we've seen in lots of copyright disputes over the years -- especially cases involving fair use. People seem to ascribe a somewhat mythical concept of "control" or "control of message" that an artist can have over their artwork. But that's never been true. Once a work of art is released to the public, the public interacts with it and interprets it and that's wholly outside the control of the original artist. Sometimes, over time, people's impression of a work of art can change drastically -- from bad to good or from good to bad.

Indeed, that's a big part of art. Art is barely art if there's no reaction to it. The reaction itself is a large part of the art, and that reaction is not dictated by the artist. Sometimes that reaction is just how people see things. Sometimes that reaction is in how it inspires others to create other works. Art is often defined by the reaction to it. And here, if that reaction changed, that's just a part of the nature of art and culture and society and how those things interact. Over the years, for example, there have been debates about the artistic value of works that supported, celebrated or were associated with bigotry. And there have been protests against them. But that's allowed, because people are allowed to react to art how they want, and sometimes their reactions can impact how others see things as well. Some people who grew up with the Confederate flag as a symbol of the south have grown over time to realize the racist connotations it can hold. Should we not allow people to raise those issues and get people to rethink their support of that flag?

Control in art is an illusory concept: people insist it's there, when it really is not. An artist has control over the artwork while they're working on it and before they've released it to the world, but once it's out there, once it's become available to interact with the reactions of the public, control is lost. And that's a good thing. It's that loss of control that makes art art.

You may not like Fearless Girl. You may not like Charging Bull. You may not like capitalism or advertising -- or maybe you do. You may like control. But the simple fact is that none of the arguments that Di Modica and his supporters are making make much sense in the grand scheme of things. The bull can survive Fearless Girl and so can Di Modica.

Filed Under: art, arturo di modica, charging bull, context, control, copyright, fearless girl, moral rights, wall street
Companies: state street

Legal Threat From Creator Of Wall St. Bull Statue Even More Full Of Bull Than Expected

from the you-have-to-be-kidding dept

Yesterday, we wrote about reports that Arturo Di Modica, the artist behind the famous "Charging Bull" statue near Wall St., was claiming that the new "Fearless Girl" statue that was put up in front of the bull infringed on his copyrights. As we noted in our piece, the only possible claim we could see was a weak moral rights claim, under VARA -- the Visual Artists Rights Act of 1990. However, as we noted in an update to the post (with a helping hand from law professor James Grimmelmann) VARA shouldn't apply. If you read the actual law, it applies to works created after VARA went into effect or to works created before the law went into effect if the title to the artwork has not been transferred from the artist.

But, of course, the history here is that Di Modica dumped the statue in front of the NY Stock Exchange as a surprise in 1989, only to have it moved by the city and given a "temporary permit" in a nearby park that is continually renewed. 1989 is, obviously, prior to the enactment of VARA in 1990. And, Grimmelmann argues, Di Modica "transferred the title by accession when he installed it."

Of course, Di Modica's lawyers don't appear to care. Late Wednesday, the letter that they sent Bill de Blasio, Mayor of New York, was released, and their legal theories... are... well... let's just say some might compare them to what comes out of the back of a bull. Yes, it does include a VARA claim, but it's not the main claim of the letter. However, since that was the focus of our post yesterday, let's deal with that one first:

Additionally, the placement of the statue of the young girl in opposition to the Charging Bull has undermined the integrity and modified the Charging Bull. The Charging Bull no longer carries a positive, optimistic message. Rather, it has been transformed into a negative force and a threat. For example, Mayor de Blasio characterized the Fearless Girl as a symbol of "standing up to fear, standing up to power, being able to find in yourself the strength to do what's right." The inescapable implication is that the Charging Bull is the source of that fear and power and a force against doing what's right. Plainly, the presence of the statue of the young girl has tarnished and modified the Charging Bull: "intended as a symbol of strength by the artist, the bull takes on a menacing air in relation to the girl."

This alteration of the Charging Bull and damage to its integrity are prejudicial to Mr. Di Modica's honor and reputation and violate his rights under the Visual Artists Rights Act of 1990, codified as §106-A of the Copyright Law. The Visual Artists Rights Act confers upon authors of works of visual arts, in addition to attribution rights, 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...." ... Here, there is no doubt that State Street Global Advisors intended to distort, mutilate and modify Charging Bull, and did so intentionally distort, mutilate and modify Charging Bull by installing Fearless Girl in opposition to Charging Bull and engaging on its marketing campaign featuring this image. This violation of Mr. Di Modica's rights will continue as long as Fearless Girl remains in opposition to Charging Bull.

Oh, what a load of bull. First off, this ignores, as Grimmelmann pointed out, that VARA almost certainly does not apply to Charging Bull (though if this went to court, I imagine Di Modica's lawyers would argue, weakly, that he did not give up the title to the statue when he abandoned it on the road). Second, placing something next to your artwork, even as a comment on it, does not "distort, mutilate or modify" the work. And if the public's interpretation of the Bull has gone from positive to negative, well, sorry Di Modica -- that's life. People's opinions change. The idea that a visual artist could block someone else from placing a work near their own work because it might change how people see the original would create major headaches around the globe. Imagine museum curators being forced to move works of art because an artist protests about how the work next to his or her own negatively impacts how people view it. That's insane.

Furthermore, if he's really worried about his "honor and reputation", how do you think the public -- who has overwhelmingly supported the message of the Fearless Girl statue (even if it is just an advertisement for a State Street fund) -- is going to feel about him being the thin-skinned, whiny, petulant artist who demands NY remove it? It seems likely that his actions here will do a hell of a lot more to damage his "honor and reputation" than the Fearless Girl statue does.

Anyway, the main claim in the letter, again, is not actually about VARA. Instead, it's even more crazy. Di Modica's lawyers argue (apparently with a straight face) that the Fearless Girl is a derivative work of the Charging Bull, and thus copyright infringement.

The statue of the young girl becomes the "Fearless Girl" only because of the Charging Bull: the work is incomplete without Mr. Di Modica's Charging Bull, and as such it constitutes a derivative work of the Charging Bull.

The essential importance of placing the young girl statue across from the Charging Bull, as opposed to elsewhere, is highlighted on the website of SSGA, which invites browsers to "[w]atch how the Fearless Girl was created and placed in a spot that made her impossible to ignore." It is only because of the Charging Bull that the young girl statue can be considered "impossible to ignore." Clearly, a deliberate choice was made to exploit and to appropriate the Charging Bull through the placement of Fearless Girl. The inextricable link between the young girl and the Charging Bull has not gone unnoticed. As one commentator writes, "The tiny girl stands bravely face to face with the giant bull, and this spatial relationship of size, orientation, and stance adds depth to the meaning of the symbol."

Furthermore, SSGA and McCann New York made conscious decisions to visually link the young girl statue to the Charging Bull. First, the statue of the young girl, just like the Charging Bull, is made out of bronze. Indeed, the patina of the young girl is nearly identical to that of the Charging Bull. Second, they extended the cobblestone paving of Bowling Green into the adjacent plaza. In so doing, State Street Global Advisors created another unifying element between the Charging Bull and the young girl that serves to transform the young girl into the "Fearless Girl."

SSGA and McCann New York constructed a marketing campaign around the image of the Fearless Girl--the image of a young girl facing down the Charging Bull. They deliberately placed the young girl statue in direct opposition to the Charging Bull and used key design elements to associate the young girl statue with the Charging Bull. In effect, the Charging Bull has been appropriated and forced to become a necessary element of a new, derivative work: "Fearless Girl: Girl Confronts Charging Bull." This is a direct violation of Mr. Di Modica's copyright.

The Fearless Girl was created for commercial purposes: to advertise SSGA and its SHE fund. Because Fearless Girl incorporates and depends upon Charging Bull, SSGA and McCann New York have commercialized and exploited the Charging Bull. A promotional video released by SSGA, which has since been modified, reveals that from its inception, Fearless Girl was conceived and designed in relation to the Charging Bull: The opening scene of the video shows the artist sketching the young girl, with a picture of the Charging Bull beside her. The final scene of that video, is shot from behind the young girl but facing the Charging Bull. The viewer sees only the head and shoulders of the young girl. In contrast the Charging Bull is revealed in its full glory. That image makes incontrovertible the fact that SSGA and McCann New York created the young girl statue to commercially exploit the iconic status and reputation of the Charging Bull. Similarly, the use and distribution of a photograph of both the young girl and the Charging Bull by SSGA and McCann New York is evidence of the commercial use of not only the statue of the young girl, but also of the Charging Bull. This commercialization of the Charging Bull is also a direct violation of Mr. Di Modica's copyright.

So much bullshit, so little time. Creating an entirely different artwork to act as commentary on the original is not derivative -- and even if you could argue that it was, it would almost certainly be fair use as transformative. In fact, the letter itself admits flat out that this is transformative. It's a self-defeating threat letter. You can't argue that (a) this transforms the work entirely (as the letter does) and then (b) also argue that it's direct infringement. But this letter does exactly that. That seems like really bad lawyering. And, really, what of the original copyright is being copied here? The only two things mentioned are the bronze patina (which is not copyrightable) and the Cobblestone paving of Bowling Green which is not part of Di Modica's work in the first place, since he didn't even place the Bull statue there (that's where the city later moved it).

Finally, the letter also argues that Fearless Girl is trademark infringement, because it was a part of a State Street advertising effort. This part includes a bit of a conspiracy theory about the placement of Fearless Girl:

The placement of Fearless Girl opposite Charging Bull also dilutes the Charging Bull's famous trademark. This is a violation of the Federal Trademark Law as codified at 15 U.S.C. §1125(c).

As discussed above, State Street Global Advisors installed the statue of the young girl in the plaza adjacent to Bowling Green and extended the cobble stone paving into the plaza. Had the statue simply been installed in Bowling Green, the statue would have fallen under the jurisdiction of the Department of Parks and Recreation. However, because the statue is technically in the plaza, it is now under the jurisdiction of the Department of Transportation. These machinations appear to be an attempt to create a token separation of the young girl statue from the Charging Bull and thereby to circumvent the legal need for Mr. Di Modica's permission to use his Charging Bull.

Or, you know, it was the best place to put the statue to make the point it was making. If you squint, maybe, there's barely some kind of argument that because Fearless Girl "uses" Charging Bull as a sort of component of a kind of advertising campaign, there's a trademark issue -- but, boy, I wouldn't want to be the lawyer who has to defend that argument in court.

Meanwhile, Mayor de Blasio seems to be taking this all in stride:

And now we get to see if this actually goes to court.

Filed Under: arturo di modica, bill de blasio, charging bull, copyright, fearless girl, moral rights, vara, wall st.
Companies: state street

The Bull Statue Copyright Claim Is Ridiculous... But Here's Why It Just Might Work

from the and-the-law-may-agree dept

You're probably quite familiar with the famous Charging Bull statue (also known as the "Wall Street Bull") which is found in Bowling Green Park right off Wall St. in lower Manhattan. The statue was originally placed there as a "guerilla sculpture" by artist Arturo Di Modica without permission.

Image by Sylvaln Leprovost under a CC-BY 2.0 license

Eventually, because New Yorkers seemed to like the damn thing, the city granted a "temporary" permit allowing the statue to remain (a little ways away from where it was originally placed) -- and so it's remained there, "temporarily," for 28 years. Of course, there have been some conflicts over the bull. In 2009, we wrote about Di Modica suing people for copyright infringement, which seems kind of nutty given that he originally just dumped the statue in the street without getting permission.

But, now, Di Modica is taking the copyright craziness up a notch. As you hopefully heard, last month, State Street Global Advisors placed a "companion" statue of a young girl facing down the bull. The statue, called Fearless Girl, was created by artist Kristen Visbal, and was put in place on the eve of International Women's Day, as a reminder that Wall Street doesn't exactly have a history of hiring women or treating them well. Originally designed to be temporary (not unlike the bull), after lots of New Yorkers spoke up, the girl has been given a one-year permit, and many expect that (like the bull) it will remain longer.

Image via Wikicommons -- under a CC BY-SA 4.0 license.

There have been some criticisms of the statue, but the latest is the most surprising. Di Modica is claiming that it violates his copyright and he's going to do... something about it.

The Italian-born sculptor Arturo Di Modica said the presence of the girl infringed on his own artistic copyright by changing the creative dynamic to include the other bold presence.

That is... not how copyright generally works (in the US), of course. Adding another piece of art next to a piece of artwork isn't a copyright violation. Except that in this case, it's unfortunately a bit more complicated. While most of the rest of the world recognizes a form of "moral rights" alongside copyright, the US has (smartly) mostly rejected moral rights. However, in order to officially ratify the Berne Convention on copyrights, the US was supposed to recognize moral rights, and we did so in a half-assed way, passing a law called VARA -- the Visual Artists Rights Act of 1990 -- now 17 USC 106A, which gives moral rights to visual works such as paintings and... sculptures.

Uh oh.

Yeah, so under VARA, the artist:

shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation

So... the question here would be whether or not placing another statue nearby, staring down the bull and making a point about diversity (1) modifies the bull statue in a way that is (2) "prejudicial to" Di Modica's "honor or reputation." Or, there's the more objective way to look at this which is: this is all insane. Di Modica dumped his bull statue on the street nearly 30 years ago to make a point. That he is now looking to use a stretched definition of copyright law to block someone else from doing the same thing referencing his own iconic statue is... just kind of crazy.

Importantly, though, this is interesting timing as it relates to moral rights. The US has been correct in (mostly) resisting putting in place a moral rights regime, and focusing on copyright as an economic right. Unfortunately, at this very moment, the Copyright Office is "studying" the issue of whether or not moral rights should be expanded. The first round of public comments has closed (you can read those comments if you'd like), but response comments are open until May 15th. Given this example of moral rights gone mad, perhaps it might be useful for the Copyright Office to be reminded of how moral rights might be used to stifle and stamp out important expression.

Update: Law professor James Grimmelmann points out that Di Modica probably has no legitimate moral rights claim either, seeing as the statue predated VARA, and that he "transferred the title by accession when he installed it." Which makes sense, but is still a reminder that we should be concerned about moral rights overreach.

Filed Under: arturo di modica, bull statue, copyright, kristen visbal, moral rights, wall street