In the late 1980’s, artist Arturo Di Modica created a 7,000 pound bronze bull statue, “Charging Bull”, and surreptitiously placed it in front of the New York Stock Exchange. Di Modica calls the statute a symbol of prosperity and strength. in March 2017, Kristen Visbal’s “Fearless Girl”, a 4-foot statue of a pony-tailed, arms-on-hips young girl, was placed a few feet away where she bravely stares down “Charging Bull”. Di Modica claims that “Fearless Girl” corrupts his artistic message and wants the statue of the girl moved elsewhere.
Does “Fearless Girl” Result in a Derivative Work of “Charging Bull”?
One of the copyright owner’s exclusive rights is the right to prepare derivative works of the copyrighted work. A derivative work is a new work based on or originating from another preexisting work. You can think of a derivative work as a spin-off product or as an adaptation.
For example, the Harry Potter films are derivative works of J.K. Rowling’s novels. If you write new lyrics for the melody of a song or translate the song into another language, you have created a derivative work of the song. Examples of derivative works listed in the Copyright Act’s definition of the term include 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 (emphasis mine).
Does the placement of “Fearless Girl” recast, transform, or adapt the “Charging Bull” artwork. Or, alternatively, is the proximity of “Fearless Girl” to “Charging Bull” more akin to hanging two contrasting paintings next to each other in an art gallery or museum – which is an act that would not result in a derivative work.
Di Modica Might Have Moral Rights in His Artwork
Di Modica claims that the placement of “Fearless Girl” distorts his work. That complaint focuses on moral rights. Moral rights protect the artist’s reputation, honor, and integrity. In the United States, such a complaint often falls flat. Unlike many European countries where artists have strong moral rights protections, the United States does not generally offer moral rights in creative works. The Visual Artists Rights Act (VARA) offers a limited exception to this general rule. VARA, which became effective in 1991 and is incorporated into the Copyright Act, offers some moral rights protections to a very small category of visual artwork.
Sculptures are one of the categories of VARA-protected works so, if “Charging Bull” qualifies for inclusion in that category, Di Modica might have some actionable VARA claims. Under VARA, an artist has the following moral rights:
the right to claim authorship of the work
the right to prevent use of his or her name on a work the artist did not create
the right to prevent use of his or her name on mutilated or distorted versions of the work
the right to prevent mutilation or distortion of the work
Those last two seem most relevant for Di Modica. Hence, the VARA-related question is whether the placement of “Fearless Girl” in any way mutilates or distorts “Charging Bull”. A very subjective question indeed.
Public comments to the newspaper coverage on the issue are divided. There are those who sympathize with Di Modica and believe “Fearless Girl” radically alters the artistic statement he intends with “Charging Bull”. Then there are those commenters who think Di Modica is being ridiculous and just “needs to get over himself”. So lots of variety for a potential jury pool if Di Modica decides to pursue litigation.
What Are New York’s Rights in “Charging Bull”?
An artist can assign or transfer his exclusive right to create a derivative work. An artist can also waive his moral rights via contract. That begs the question of what rights and permissions New York holds in “Charging Bull”.
The answer is unclear. Evidently, Di Modica initially donated “Charging Bull” by installing it on Wall Street without a permit and without any authorization. City officials first removed the artwork but then relented to public pressure and put it back. Those circumstances suggest that there is no written agreement between Di Modica and the City of New York regarding “Charging Bull”. New York might argue that it holds a valid license to take certain actions regarding the work – even if some of those licenses might be implied rather than written.