The Charging Bull has been an iconic New York City landmark since it was placed outside the New York Stock Exchange in December 1989 in an act of guerrilla art. The bull's sculptor, Artutro Di Modica, left the artwork as a as a 'gift to New York' to symbolise the prosperity and strength of America following the 1987 stock market crash. Despite initially being removed, the statue's popularity caused it to be relocated to Bowling Green days later, where it has since remained, on loan to the New York City Council.

On 7 March 2017, the night before International Women's Day, Charging Bull was joined at Bowling Green by a second guerrilla-art installation – a 4 foot statue of a young girl, staring defiantly at the Charging Bull. The 'Fearless Girl' statue was sculpted by Kristen Visbal and commissioned by State Street Global Advisors as an advertisement for their index fund comprised of gender diverse companies. Although originally intended to be a temporary installation, the Mayor of New York City has allowed the Fearless Girl to remain at Bowling Green for one year.

Di Modica claims that the placement of Fearless Girl is an insult to the Charging Bull and that her placement is 'attacking the bull'. The Charging Bull and the Fearless Girl do interact, but what right does an artist have to determine how their artwork is interacted with in a public space? The competing interests of the artists raise interesting questions in intellectual property law, specifically regarding Di Modica's 'moral rights'.

What are Moral Rights?

The underlying philosophy of moral rights is that an artist's work must be presented to the public in the form that was intended, and therefore any interference with the work that offends the honour and reputation of the creator should be restrained.

The minimum requirements for moral rights protection outlined in the Berne Convention for the Protection of Literary and Artistic Works 1886 (Berne Convention) are the 'right of attribution' and the 'right of integrity'. Article 6bis of the Berne Convention states:

  1. Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and 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.
  2. The rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the country where protection is claimed. However, those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained.
  3. The means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where protection is claimed.

Moral Rights under Australian Law

In Australia, an author has moral rights under s 195AO of the Copyright Act 1968 (Cth) (Copyright Act). Three types of moral rights exist under the Copyright Act:

  1. Right of attribution: this is the right of an author to be identified and named as the author of his/her work
  2. Right against false attribution: this is the right of an author to stop someone else being credited as the author of their work
  3. Right of integrity: this is the right of an author to ensure that their work is not subjected to derogatory treatment.

If the Charging Bull-Fearless Girl dispute occurred in Australia, Di Modica would likely argue that Fearless Girl breaches his right of integrity. To be successful in this argument, Di Modica would need to prove that his work was subject to derogatory treatment. The term 'derogatory treatment' under the Copyright Act means:

(a) the doing, in relation to the work, of anything that results in a material distortion of, the destruction or mutilation of, or a material alteration to, the work that is prejudicial to the author's honour or reputation (b) an exhibition in public of the work that is prejudicial to the author's honour or reputation because of the manner or place in which the exhibition occurs(c) the doing of anything else in relation to the work that is prejudicial to the author's honour or reputation.[1]

Di Modica would therefore need to show that Fearless Girl distorted or mutilated his work and that the treatment was prejudicial to his honour or reputation. There have been few moral rights cases in Australia and it is therefore difficult to know whether an Australian Court would consider the installation of a second sculpture in close proximity to be a 'distortion' or 'mutilation' of another's work. It would also be difficult to argue that the placement of the Fearless Girl was materially prejudicial to Di Modica's honour or reputation. Such a case would raise interesting questions regarding moral rights, such as does an artist consent to public interaction with his work, including interaction by other artists, by installing it in a public place?

If a court were to find that Fearless Girl had subjected the Charging Bull to derogatory treatment, it will not have breached Di Modica's moral right of integrity if it was 'reasonable in the circumstances'. A Court would consider a number of factors when determining what is reasonable in the circumstances, such as the nature of the work, its purpose, the manner and context in which it is used, any relevant industry practice, or any practice contained in a voluntary code of practice, as well as the context in which it is created. If the placement of Fearless Girl was found not to be 'reasonable in the circumstances', Di Modica would likely be compensated the equivalent value to damages that would be awarded if there had been a copyright infringement. [2]

Moral Rights under U.S. Law

Although Di Modica has not yet brought legal proceedings against Visbal or State Street Global Advisors, his lawyer Norman Siegel has indicated that litigation is not out of the question. Unfortunately for Di Modica, moral rights protection in the United States is quite weak compared to other jurisdictions. Moral rights were introduced in 1990 under the Visual Artists Rights Act of 1990 (VARA). VARA encompasses the 'right to integrity' under §106A which allows an artist to prevent or claim damages for:

(a) any intentional distortion, mutilation, or other modification of the artist’s work that would be prejudicial to his or her honour or reputation(b) any intentional or grossly negligent destruction of a work of recognised stature.

However, U.S. Courts have interpreted the 'right of integrity' as referring to physical integrity, to which Fearless Girl poses no threat and has had no effect. As the Second Circuit in the U.S. has noted, the right of integrity is "to prevent destruction"[3]. If Di Modica does take legal action, it will be interesting to see if U.S. court would extend "modification" under VARA to include non-physical changes, and the ramifications such a decision would have for displaying artistic work in the U.S.

Due to limited moral rights protection in the U.S., the Fearless Girl may indeed have nothing to fear, and remain at the Bowling Green site for years to come without infringing Di Modica's intellectual property rights.