Fearless Girl should stand her ground

The recent high-profile installation of The Fearless Girl – a bronze sculpture of a primary-school-aged girl, with her fists defiantly on her hips, facing the iconic Charging Bull on Lower Manhattan’s Bowling Green – has generated a wave of impassioned defence and criticism. Charging Bull was itself installed by surprise in 1987 in front of the New York Stock Exchange, before an agreement was reached to install it in its current location, where it has become a fixture of the financial district. The respective symbolism of the two works, individually and in interaction with each other, continues long-running conversations about public art and public space, feminism, and corporate sponsorship.

The complaint by Arturo di Modica, the sculptor of Charging Bull, that Kristen Visbal’s Fearless Girl (commissioned by State Street Global Advisors on the occasion of International Women’s Day) infringes on his copyright or moral rights stands on considerably shakier footing, however. Understanding why his arguments fall short requires unpacking the uneasy relationship under US law between copyright and moral rights.

The first charge made by di Modica is that The Fearless Girl infringes his copyright. The newer sculpture does not copy any element of Charging Bull, so most likely he intends to accuse The Fearless Girl of being a derivative work, one of the key rights conferred by the Copyright Act. Yet to describe The Fearless Girl as being derivative of Charging Bull would render the term almost meaningless, and would likewise make commentary by visual artists essentially impossible (as well as, conceivably, curatorship itself).

The Fearless Girl makes a statement in response to the perceived artistic expression of Charging Bull. Charging Bull itself holds power because it used a recognisable metaphor – the bull – associated with the capital markets of which Lower Manhattan is the global epicentre. 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. The Copyright Act gives di Modica no power to dictate what the meaning of his work is to a secondary artist, without which portraying The Fearless Girl as a derivative work fails.

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 (in which photographer Patrick Cariou sued Richard Prince and Gagosian for infringement of copyright), but there is no dispute that it has moved towards a more expansive view, not less. Ironically, in attacking The Fearless Girl, di Modica’s attorney’s letter used the very word – ‘transformed’ – that has so greatly expanded the scope of fair use.

If copyright does not avail di Modica, what about moral rights? This argument would also fall short. Those moral rights in the United States are extremely limited, and are conferred by the Visual Artists Rights Act of 1990 (17 U.S.C. § 106A), or VARA. VARA confers a ‘right of integrity’ on works of recognised 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. Artistic confrontation is not a ‘distortion, mutilation or other modification’. 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’. Is Charging Bull a work of recognised stature? Perhaps – but The Fearless Girl might be too, making it eligible for the very same protection under VARA that di Modica seeks (unless it were a work for hire).

Lastly, it cannot be ignored that both sculptures are now located on New York City property. Charging Bull has been on Bowling Green for almost 30 years, since an agreement was reached with the city to place it there permanently; The Fearless Girl has been granted at least one year of residence. Indeed, if the city yielded to di Modica’s request to remove The Fearless Girl, then Visbal would have her own First Amendment claim, because the government may not discriminate among viewpoints when it makes a forum available for speech. If what di Modica is proposing that the city do seems familiar, it is because there is a succinct term for it: censorship.