Art Law Report

“Charging Bull” Sculptor Articulates VARA Complaint, But “Fearless Girl” Still Standing Firm

Posted by Nicholas O'Donnell on April 13, 2017 at 4:13 PM

After a recent discussion about whether the new Fearless Girl sculpture by Kristen Visbal in Lower Manhattan might implicate the copyright of the earlier Charging Bull sculpture that has been there for nearly three decades, the sculptor who created Charging Bull has stepped to the foreground to complain that the recent installation infringes his rights.  In addition to copyright arguments, that artist (Arturo di Modica) suggests that he has a moral rights claim under the Visual Artists Rights Act of 1990 (17 U.S.C. § 106A).  But since Charging Bull predates VARA it is probably ineligible for any protection.  Even if it were eligible, the elements of VARA rights are not implicated by the installation of The Fearless Girl because nothing has actually happened to Charging Bull.  Artistic confrontation is not “distortion, mutilation or other modification” under VARA.  In short, none of the arguments he advances would bestow on him the kind of right to be asked first that he proposes.

On April 12, 2017, di Modica held a press conference to assert a grievance against the city of New York.  His attorney had also apparently sent a letter to the city the day before that made several contentions.  In the letter, di Modica’s attorney complained on his behalf that The Fearless Girl was a commercial event that infringed his copyright because it “undermined the integrity of 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.”  He also alleged VARA violations, and that The Fearless Girl dilutes di Modica’s registered trademark.  The letter threatened legal action unless the sculpture is moved, and demanded money damages. 

The central element of this argument is the derivative work assertion.  One of the most important rights granted by the Copyright Act is the right to control derivative works, which di Modica’s demand letter argues that The Fearless Girl is.  For The Fearless Girl to be a “derivative work,” however, the “Bull” would have to be a character that di Modica created and controls under copyright.  Charging Bull itself had resonance because it used a recognizable metaphor—the bull—associated with capital markets, however.  Arguing that di Modica owns the copyright to control artistic responses to the figure of a bull is like an artist arguing that he controls the right to control references to the stork as a metaphor for childbirth. 

That is not all, as we noted before.  Even if di Modica could convince a court that he controlled “derivative works” of this metaphor, The Fearless Girl would conclusively be fair use.  Much ink has been spilled about how far the fair use doctrine for visual art has moved after Cariou v. Prince, but there is no dispute that it has moved towards a more expansive view, not less. Considering the logical extension of di Modica’s argument, no artistic response or comment would be safe from copyright infringement liability.  Ironically, di Modica’s attorney’s letter uses the very word—“transformed”—that has so greatly expanded the scope of fair use.

Christina Cauterucci at Slate suggested that di Modica had a strong argument to a right of integrity claim, but this too is incorrect for multiple reasons.  First, Charging Bull predates VARA (as Cauterucci acknowledges).  It would thus only be eligible for VARA protection if di Modica had never transferred ownership of the sculpture since VARA was passed (a little-known provision of VARA).  That is certainly possible, though unknown.  Substantively, VARA confers a “right of integrity” on works of recognized stature.  For such works, an artist has the right to prevent or enjoy the “intentional distortion, mutilation or other modification” of such a work.  The right of integrity is exactly what it sounds like: a protection against the physical, not the conceptual, integrity of the work.   Right of integrity refers to physical integrity, to which The Fearless Girl poses no threat and has had no effect.  As the Second Circuit has noted, the right of integrity is “to prevent destruction.”  Carter v. Helmsley Spear, Inc., 71 F.3d 77 (2d Cir. 1995).  Is Charging Bull a work of recognized stature?  Probably—but The Fearless Girl might be too, making it eligible to make the very same argument that di Modica does. 

Lastly, as to the trademark argument, this too seems unlikely.  The argument made is that The Fearless Girl dilutes di Modica’s trademark under 15 U.S.C. § 1125(c).  Such a claim requires the plaintiff to show that the defendant has used the protected trademark in a way that “is likely to cause dilution by blurring or dilution by tarnishment of the famous mark, regardless of the presence or absence of actual or likely confusion. . . . “  Di Modica does own a registered trademark in a visual depiction of the bull with the words “Charging Bull New York” above and below it.  Yet a freestanding sculpture does not “use” Charging Bull except by reference to its existence.  Visbal is not “using” Charging Bull, The Fearless Girl, nor is her sculpture similar to di Modica’s in any meaningful way (the degree of similarity necessary to support a dilution claim is the subject of a longer debate that we won’t unpack here).

Time will tell if this dispute actually ends in court. 

Topics: Copyright Act, Visual Artists Rights Act of 1990, VARA, The Fearless Girl, Charging Bull, Arturo Di Modica, Kristen Visbal, State Street Global Advisors, Christina Cauterucci, Slate, Carter v. Helmsley Spear, Inc., 15 U.S.C. § 1125(c), Derivative Works, Trademark dilution

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