The sudden appearance near Wall Street on March 8, 2017 of The Fearless Girl, a bronze life-sized depiction of a roughly ten-year old girl staring defiantly at the famous Charging Bull sculpture has prompted headlines throughout the world. Now, a defender of Charging Bull has leveled an accusation of copyright infringement against the sculptor of The Fearless Girl, an allegation that misapprehends how copyright law affects the interplay between works of visual art. In short, the recent sculpture is conclusively (1) not infringement of Charging Bull, but even if it were (2) would equally clearly be considered a fair use. This example from the headlines is thus instructive to review what copyright does, and does not, cover when commentary and political statements are at issue.
Charging Bull is now a fixture of Lower Manhattan, but it is actually fewer than thirty years old. Using the famous motif of the bull/bear market, the sculpture was “installed without permission during a four-and-a-half-minute break in a night watchman’s rounds by sculptor Arturo Di Modica as a guerrilla art piece and gift to the city,” as an ArtNet News article described it on the 25th anniversary of said installation. Di Modica was cited as expressing the symbolism of New York’s resilience and recovery following the Black Monday crash in October, 1987. The sculpture came to reside in a small traffic island near Bowling Green and around the corner more or less from the New York Stock Exchange. More recently, Charging Bull featured in the plot of the hacker drama Mr. Robot, when the sculpture was mutilated and dropped on the floor of the House of Representatives as a (fictional) protest against the financial services industry.
When day broke on March 8 this year, The Fearless Girl was standing on the same small patch of land, hands on her hips, squarely and defiantly facing Charging Bull. March 8 was International Women’s Day, and the sculpture was immediately a social media phenomenon and widely praised by critics and lay observers alike. Initially appearing to be another clandestine political statement, State Street Global Advisors revealed that it had commissioned the work by Kristen Visbal as part of a campaign to publicize the need for more representation by women on corporate boards. This revelation prompted a backlash of its own, but suffice it to say that the sculpture remained popular enough that the City of New York extended its temporary installation, and it remains a provocative object.
Now, a longtime advocate of Charging Bull has accused Visbal of treading on the intellectual property of the earlier sculpture. In an e-mail to a number of city officials, Arthur Piccolo complained of “a highly coordinated carefully planned conspiracy to defraud Arturo DiModica of his copyright.” Piccolo has instrumental in securing a permanent home for Charging Bull after its initial revelation on Wall Street. The e-mail apparently went on to argue that “The ONLY reason Fearless Girl was commissioned by SSGA was to be placed directly in front of Charging Bull. . . . [the two statues are] effectively merged into a single image, inseparable from each other.” Further:
I believe it is beyond preposterous for [the advertising agency involved] and others to argue they had no idea that Charging Bull was copyright protected not that even such ignorance would make this a legal use of Arturo’s copyright.
If you are in possession of a pre-existing professional opinion that no copyright issue is relevant I hope you will release it immediately for anyone to examine. As improbable as that is and as flawed as it would likely be, even with such a document you had professional and moral obligation to inform the artist of Charging Bull that you intended to make use of his work and to find out if he or his attorney wanted to challenge any such assertion.
This impassioned defense confuses a number of important copyright principles. First, Charging Bull is certainly protected by copyright, whether or not it is registered. It is not apparent that anyone is even disputing that. But copyright is only infringed by copying, or impinging on one of the rights granted by the Copyright Act, such as derivative works. Plainly, nothing was copied here. As a matter of interpretation, it is certainly reasonable to view the two sculptures as part of a single conversation. But that is an act of expression, not of copying. Placement in proximity may well be intentional, but it is not copying.
Moreover, reference to another work of visual work is not a derivative work. A vast spectrum of art would be prohibited by the Copyright Act if it were. And there is not a single component of The Fearless Girl that shares any element of Charging Bull. To state the obvious: one is a bovine, one is a human.
Lastly, the placement of Visbal’s work is explicitly a comment or criticism of Charging Bull. So even if it were somehow infringing, it would be protected by the doctrine of fair use.
We will leave the social/art criticism and comparison to others, but as a matter of copyright law, the idea that the recent sculpture infringes on Charging Bull is, well, just that.