You have likely seen the headlines celebrating (some admonishing) Fearless Girl, the strategically placed statue of a small, determined girl, standing with her hands on her hips in front of the famed Charging Bull statue on New York’s Wall Street. While many have celebrated Fearless Girl, there has been controversy surrounding the statue, including objections by the artist behind Charging Bull, Arturo Di Modica. Di Modica’s main “beef” with “Fearless Girl” (excuse the pun) is that it changes the meaning of his sculpture, and in doing so, affects the integrity of his work, a moral right. No one can deny that the two works now interact, and the interaction conveys a message. The artist of Charging Bull though didn’t agree to the “new” message. The competing interests of the artists raise interesting questions regarding the reach and limits of artists’ rights. For example, what is an artist’s right to “integrity” of their work? To what extent can an artist control how his or her work is displayed? Are rights given up by artists when their art is placed in public? What restraints may be reasonable in such circumstances?
Arturo Di Modica held a press conference claiming his moral rights were infringed by the placement of Fearless Girl, demanding she be removed. Fearless Girl was erected in March 2017 in honour of International Women’s Day. State Street Global Advisors and McCann New York sponsored the installation to highlight the need for female corporate leadership (those companies have also used photographs of the two sculptures in a marketing campaign). Fearless Girl is “starting down” Charging Bull. Di Modica’s lawyer has alleged that the Fearless Girl incorporates and depends on Charging Bull to convey its meaning, and in this way, has commercialized and exploited Charging Bull without Di Modica’s permission. Charging Bull was clandestinely erected by Di Modica in 1989 as a celebration of American spirit and virility after the 1986 stock market crash. According to Di Modica, the addition of Fearless Girl to the traffic island changes his work’s meaning from a “symbol of prosperity and strength” to that of a villain.
So what if this case arose in Canada? In Canada, artists and authors alike have “moral rights”. Moral rights include an author’s right to the “integrity” of his or her work. The right to “integrity” is infringed where the work is distorted, mutilated or otherwise modified or used with a product, service, cause or institution, but only if to the prejudice’s the author’s “honour or reputation”. Notably, prejudice is deemed in cases of any distortion, mutilation or “other modification” to a sculpture (same goes for paintings and engravings). The question is whether “other modification” relates to a modification to the physical work, or is broad enough to cover its relative placement. Notably, there is no distortion etc. solely because the location of a work is changed (same goes for changing the physical means by which a work is exposed or the physical structure containing a work). The Act, though, is silent on changes in surroundings (which would seem to suggest, moral rights do not go that far). The right to integrity has its roots in Article 6bis of the Berne Convention, which provides that the author shall have the right 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.” These rights are imbued with the creative spirit of the author, and intended to preserve and protect expression – they are not economic rights, and only a handful of cases have interpreted moral rights to date.
The leading case setting out the scope of moral rights in Canada is Snow v. Eaton Centre Ltd. (1982), 70 CPR (2d) 105 (Ont HC). In that case, renowned Canadian artist Michael Snow successfully obtained an injunction against a shopping mall in downtown Toronto on the basis of his moral rights. The mall had placed bows on the necks of some 60 sculptures of geese in Snow’s sculptural work “flight stop” for the holiday season, which Snow claimed made the work—which he had sold to the defendant—look ridiculous, like “dangling earrings from the Venus de Milo”, and thus, negatively impacted his reputation. The Court agreed, finding the statute’s requirement that the distortion be “prejudicial to [the artist’s] honour or reputation” involved a subjective element and that, in this case, other well respected artists and people knowledgeable in the field shared Snow’s sentiments. Since then, Courts have moved towards somewhat more of an objective test for what will prejudice an artist’s honour and reputation.
When considering a possible moral rights claim in the context of the Charging Bull against Fearless Girl, it is doubtful that a Canadian court would find a moral rights infringement if faced with similar circumstances. First, it is arguably not the work itself that is changed, but rather its meaning in the context of its surroundings—it is not that someone has placed bows on the Bull, so much as they have placed a hunter pointing a gun at the geese. Second, Di Modica does not appear to be advancing a claim that Fearless Girl impacts his personal reputation or honour. In Canada, Di Modica’s strongest claim may be against the two companies for using his work as part of a collective installation in association with services, causes or institutions (presuming he could prove prejudice to his honour and reputation). Notably, the exception for taking photographs of sculptural works permanently situated in a public place applies to copyright infringement, not moral rights infringement.
There is certainly a tension between preserving the integrity of the artist and public discourse, especially when a work is placed in a public setting, and subject to public scrutiny and interpretation.
If the moral right to a work’s “integrity” permits an artist to control the effect of his work on an audience, it may tip the balance too far in favour of preserving an artist’s intended expression, and ultimately give artists a level of control over the eye of the beholder. For example, such an expansive interpretation of moral rights could permit artists to dictate to galleries what other works may or may not be displayed near the work, impacting the galley’s curatorial abilities. City policies toward graffiti would also be impacted—to date, cities’ rights and property owner’s rights have generally been viewed as “trumping” moral rights in such works. For example, the city of Toronto has a system in place to assess and remove graffiti by artists, giving artists little standing. It would seem that the right to control an association with a cause, institution etc. is as far as the drafters intended to go, giving integrity a more physical definition and not a right to control over placement or association with other works.
Ultimately, it seems unlikely that Charging Bull would be permitted to trample Fearless Girl.