The Bull Statue Copyright Claim Is Ridiculous… But Here's Why It Just Might Work

from the and-the-law-may-agree dept

You’re probably quite familiar with the famous Charging Bull statue (also known as the “Wall Street Bull”) which is found in Bowling Green Park right off Wall St. in lower Manhattan. The statue was originally placed there as a “guerilla sculpture” by artist Arturo Di Modica without permission.

Eventually, because New Yorkers seemed to like the damn thing, the city granted a “temporary” permit allowing the statue to remain (a little ways away from where it was originally placed) — and so it’s remained there, “temporarily,” for 28 years. Of course, there have been some conflicts over the bull. In 2009, we wrote about Di Modica suing people for copyright infringement, which seems kind of nutty given that he originally just dumped the statue in the street without getting permission.

But, now, Di Modica is taking the copyright craziness up a notch. As you hopefully heard, last month, State Street Global Advisors placed a “companion” statue of a young girl facing down the bull. The statue, called Fearless Girl, was created by artist Kristen Visbal, and was put in place on the eve of International Women’s Day, as a reminder that Wall Street doesn’t exactly have a history of hiring women or treating them well. Originally designed to be temporary (not unlike the bull), after lots of New Yorkers spoke up, the girl has been given a one-year permit, and many expect that (like the bull) it will remain longer.

Image via Wikicommons — under a CC BY-SA 4.0 license.

There have been some criticisms of the statue, but the latest is the most surprising. Di Modica is claiming that it violates his copyright and he’s going to do… something about it.

The Italian-born sculptor Arturo Di Modica said the presence of the girl infringed on his own artistic copyright by changing the creative dynamic to include the other bold presence.

That is… not how copyright generally works (in the US), of course. Adding another piece of art next to a piece of artwork isn’t a copyright violation. Except that in this case, it’s unfortunately a bit more complicated. While most of the rest of the world recognizes a form of “moral rights” alongside copyright, the US has (smartly) mostly rejected moral rights. However, in order to officially ratify the Berne Convention on copyrights, the US was supposed to recognize moral rights, and we did so in a half-assed way, passing a law called VARA — the Visual Artists Rights Act of 1990 — now 17 USC 106A, which gives moral rights to visual works such as paintings and… sculptures.

Uh oh.

Yeah, so under VARA, the artist:

shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation

So… the question here would be whether or not placing another statue nearby, staring down the bull and making a point about diversity (1) modifies the bull statue in a way that is (2) “prejudicial to” Di Modica’s “honor or reputation.” Or, there’s the more objective way to look at this which is: this is all insane. Di Modica dumped his bull statue on the street nearly 30 years ago to make a point. That he is now looking to use a stretched definition of copyright law to block someone else from doing the same thing referencing his own iconic statue is… just kind of crazy.

Importantly, though, this is interesting timing as it relates to moral rights. The US has been correct in (mostly) resisting putting in place a moral rights regime, and focusing on copyright as an economic right. Unfortunately, at this very moment, the Copyright Office is “studying” the issue of whether or not moral rights should be expanded. The first round of public comments has closed (you can read those comments if you’d like), but response comments are open until May 15th. Given this example of moral rights gone mad, perhaps it might be useful for the Copyright Office to be reminded of how moral rights might be used to stifle and stamp out important expression.

Update: Law professor James Grimmelmann points out that Di Modica probably has no legitimate moral rights claim either, seeing as the statue predated VARA, and that he “transferred the title by accession when he installed it.” Which makes sense, but is still a reminder that we should be concerned about moral rights overreach.

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Comments on “The Bull Statue Copyright Claim Is Ridiculous… But Here's Why It Just Might Work”

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That One Guy (profile) says:

Re: They can always remove the bull

Revoke the permit and tell him he’s got 24 hours to remove it himself or it’ll be removed for him and he’ll have to pay for the costs incurred by it’s removal.

If he’s going to be a gigantic freakin’ hypocrite about someone else planting a statue just because it messes with the ‘message’ he wanted to make with his statue, make him pay for his hypocrisy, whether in work or money.

Anonymous Coward says:

This is how i parse this logic:

“shall have the right to prevent the use of his or her name as the author of the work of visual art “
This is the triggered effect, it is the action that can occur if certain conditions are met.

“in the event of a distortion, mutilation, or other modification of the work “
This is a trigger event, this is how the statement is called into effect.

“which would be prejudicial to his or her honor or reputation “
This is a conditional, it limits the trigger event and triggered effect.

So thus taken in its entirety the statement means that the author can only distance himself from any modification to his work of art if he finds it detrimental to his portfolio.
There is nothing else that this statement allows for him to do.

Bergman (profile) says:

Re: Re:

Taken to the logical conclusion, a guerilla artist could prevent a property owner from modifying his own property in any way by planting an unauthorized statue nearby and claiming the background scenery is part of the art.

And that moral rights law would actually make it illegal for the actual property owner to do anything about it, since that would alter the art and violate moral copyright.

Roger Strong (profile) says:

The Fearless Girl statue was installed by State Street Global Advisors to white-wash their image after agreeing to pay more than $64 million to resolve fraud charges for secretly billing clients for unwarranted commissions.

While I support keeping the statue in place, it means accepting that someone could drop in a third statue and "change the creative dynamic" yet again. Say, a statue of the Wall Street Finance Bro using Fearless Girl to demonstrate a more accurate Wall Street attitude.

Anonymous Coward says:

shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation

So his name is no longer given as the artist that created the bull, and all mentions of the piece just call it the bull, with no attribution. I hope he like languishing in obscurity.

Anonymous Coward says:

Another fun fact of the girl is that it is actually an advertisement. State Street bank has a woman owned company fund, so you can buy their product that is comprised of women owned companies. That fund’s ticker symbol is SHE.

The plaque on the girl reads “Know the power of women in leadership. SHE makes a difference.”

Think it is a mistake that the SHE on the plaque is all caps?

I like it, but it is an advertisement.

Bob says:

Re: Re:

Advertisements can be considered artwork ever see an old coca-cola sign or advert at auction. The statue may be a cleverly disguised ad, but it doesn’t mean people won’t repurpose the statue as a symbol for a different meaning over time. Since SHE abandoned the statue it’s not up to them anymore where it is placed, how it is interpreted, or what it means anymore.

David (profile) says:

Hmm, moral rights.

Well what have we here?

Moral rights in the US of A. We have them by the tonne. Of course, most of them are neither moral nor right and many aren’t correct either. Not that has stopped them in the past, which bodes not at all well for the present.

As to the odds of removing the Bull – it seems unlikely in this current environment as Bull is actually being slung about left and *cough* right.

Anonymous Howard II says:

I hate stuff like this

Reminds me somewhat of the situation with the Kelpies (mythical water-dwelling creatures who liked to murder children) sculpture here in Scotland.

Even though public land was made available and public money funded its construction, the designer wants to retain all IP rights (so the local council can’t sell souvenirs for example) and also wants to dictate how the land around the sculpture may be used.

That One Guy (profile) says:

Re: I hate stuff like this

It just needs to be made crystal clear from the outset that if they want to put up their stuff on public land, and especially if they’re accepting public money for it’s construction, they don’t get to dictate terms, they accept them.

If the terms are too much for them to deal with then awesome, they can put up their statue (or idea for a statue in the case of public funds) on their own property and enjoy it there.

That One Guy (profile) says:

Re: Get upset all you want, filing a lawsuit is stepping over the line

And if the statue you created was placed on your property, then you might have grounds to object. If you place it on public property however then you don’t get to cry foul when someone else does the same, even if their statue ‘harms’ the ‘message’ you intended to make with yours.

Public property is exactly that, public, you don’t get to ‘claim’ it by planting something down and demanding that no-one else be able to do the same anywhere nearby.

Anonymous Coward says:

Re: Not Modified

Knowing people, I can guarantee that there are those that have pooped, peeded and done worse to the bull already.

I have seen people taking selfies with themselves posing doing rude and obscene things to the defiant girl. That actually is pretty funny, since they are proclaiming to all that view their pictures that they have pedophile tendencies.

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