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.
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.
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.