Legal Threat From Creator Of Wall St. Bull Statue Even More Full Of Bull Than Expected

from the you-have-to-be-kidding dept

Yesterday, we wrote about reports that Arturo Di Modica, the artist behind the famous "Charging Bull" statue near Wall St., was claiming that the new "Fearless Girl" statue that was put up in front of the bull infringed on his copyrights. As we noted in our piece, the only possible claim we could see was a weak moral rights claim, under VARA -- the Visual Artists Rights Act of 1990. However, as we noted in an update to the post (with a helping hand from law professor James Grimmelmann) VARA shouldn't apply. If you read the actual law, it applies to works created after VARA went into effect or to works created before the law went into effect if the title to the artwork has not been transferred from the artist.

But, of course, the history here is that Di Modica dumped the statue in front of the NY Stock Exchange as a surprise in 1989, only to have it moved by the city and given a "temporary permit" in a nearby park that is continually renewed. 1989 is, obviously, prior to the enactment of VARA in 1990. And, Grimmelmann argues, Di Modica "transferred the title by accession when he installed it."

Of course, Di Modica's lawyers don't appear to care. Late Wednesday, the letter that they sent Bill de Blasio, Mayor of New York, was released, and their legal theories... are... well... let's just say some might compare them to what comes out of the back of a bull. Yes, it does include a VARA claim, but it's not the main claim of the letter. However, since that was the focus of our post yesterday, let's deal with that one first:

Additionally, the placement of the statue of the young girl in opposition to the Charging Bull has undermined the integrity 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. For example, Mayor de Blasio characterized the Fearless Girl as a symbol of "standing up to fear, standing up to power, being able to find in yourself the strength to do what's right." The inescapable implication is that the Charging Bull is the source of that fear and power and a force against doing what's right. Plainly, the presence of the statue of the young girl has tarnished and modified the Charging Bull: "intended as a symbol of strength by the artist, the bull takes on a menacing air in relation to the girl."

This alteration of the Charging Bull and damage to its integrity are prejudicial to Mr. Di Modica's honor and reputation and violate his rights under the Visual Artists Rights Act of 1990, codified as §106-A of the Copyright Law. The Visual Artists Rights Act confers upon authors of works of visual arts, in addition to attribution rights, the right "to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation...." ... Here, there is no doubt that State Street Global Advisors intended to distort, mutilate and modify Charging Bull, and did so intentionally distort, mutilate and modify Charging Bull by installing Fearless Girl in opposition to Charging Bull and engaging on its marketing campaign featuring this image. This violation of Mr. Di Modica's rights will continue as long as Fearless Girl remains in opposition to Charging Bull.

Oh, what a load of bull. First off, this ignores, as Grimmelmann pointed out, that VARA almost certainly does not apply to Charging Bull (though if this went to court, I imagine Di Modica's lawyers would argue, weakly, that he did not give up the title to the statue when he abandoned it on the road). Second, placing something next to your artwork, even as a comment on it, does not "distort, mutilate or modify" the work. And if the public's interpretation of the Bull has gone from positive to negative, well, sorry Di Modica -- that's life. People's opinions change. The idea that a visual artist could block someone else from placing a work near their own work because it might change how people see the original would create major headaches around the globe. Imagine museum curators being forced to move works of art because an artist protests about how the work next to his or her own negatively impacts how people view it. That's insane.

Furthermore, if he's really worried about his "honor and reputation", how do you think the public -- who has overwhelmingly supported the message of the Fearless Girl statue (even if it is just an advertisement for a State Street fund) -- is going to feel about him being the thin-skinned, whiny, petulant artist who demands NY remove it? It seems likely that his actions here will do a hell of a lot more to damage his "honor and reputation" than the Fearless Girl statue does.

Anyway, the main claim in the letter, again, is not actually about VARA. Instead, it's even more crazy. Di Modica's lawyers argue (apparently with a straight face) that the Fearless Girl is a derivative work of the Charging Bull, and thus copyright infringement.

The statue of the young girl becomes the "Fearless Girl" only because of the Charging Bull: the work is incomplete without Mr. Di Modica's Charging Bull, and as such it constitutes a derivative work of the Charging Bull.

The essential importance of placing the young girl statue across from the Charging Bull, as opposed to elsewhere, is highlighted on the website of SSGA, which invites browsers to "[w]atch how the Fearless Girl was created and placed in a spot that made her impossible to ignore." It is only because of the Charging Bull that the young girl statue can be considered "impossible to ignore." Clearly, a deliberate choice was made to exploit and to appropriate the Charging Bull through the placement of Fearless Girl. The inextricable link between the young girl and the Charging Bull has not gone unnoticed. As one commentator writes, "The tiny girl stands bravely face to face with the giant bull, and this spatial relationship of size, orientation, and stance adds depth to the meaning of the symbol."

Furthermore, SSGA and McCann New York made conscious decisions to visually link the young girl statue to the Charging Bull. First, the statue of the young girl, just like the Charging Bull, is made out of bronze. Indeed, the patina of the young girl is nearly identical to that of the Charging Bull. Second, they extended the cobblestone paving of Bowling Green into the adjacent plaza. In so doing, State Street Global Advisors created another unifying element between the Charging Bull and the young girl that serves to transform the young girl into the "Fearless Girl."

SSGA and McCann New York constructed a marketing campaign around the image of the Fearless Girl--the image of a young girl facing down the Charging Bull. They deliberately placed the young girl statue in direct opposition to the Charging Bull and used key design elements to associate the young girl statue with the Charging Bull. In effect, the Charging Bull has been appropriated and forced to become a necessary element of a new, derivative work: "Fearless Girl: Girl Confronts Charging Bull." This is a direct violation of Mr. Di Modica's copyright.

The Fearless Girl was created for commercial purposes: to advertise SSGA and its SHE fund. Because Fearless Girl incorporates and depends upon Charging Bull, SSGA and McCann New York have commercialized and exploited the Charging Bull. A promotional video released by SSGA, which has since been modified, reveals that from its inception, Fearless Girl was conceived and designed in relation to the Charging Bull: The opening scene of the video shows the artist sketching the young girl, with a picture of the Charging Bull beside her. The final scene of that video, is shot from behind the young girl but facing the Charging Bull. The viewer sees only the head and shoulders of the young girl. In contrast the Charging Bull is revealed in its full glory. That image makes incontrovertible the fact that SSGA and McCann New York created the young girl statue to commercially exploit the iconic status and reputation of the Charging Bull. Similarly, the use and distribution of a photograph of both the young girl and the Charging Bull by SSGA and McCann New York is evidence of the commercial use of not only the statue of the young girl, but also of the Charging Bull. This commercialization of the Charging Bull is also a direct violation of Mr. Di Modica's copyright.

So much bullshit, so little time. Creating an entirely different artwork to act as commentary on the original is not derivative -- and even if you could argue that it was, it would almost certainly be fair use as transformative. In fact, the letter itself admits flat out that this is transformative. It's a self-defeating threat letter. You can't argue that (a) this transforms the work entirely (as the letter does) and then (b) also argue that it's direct infringement. But this letter does exactly that. That seems like really bad lawyering. And, really, what of the original copyright is being copied here? The only two things mentioned are the bronze patina (which is not copyrightable) and the Cobblestone paving of Bowling Green which is not part of Di Modica's work in the first place, since he didn't even place the Bull statue there (that's where the city later moved it).

Finally, the letter also argues that Fearless Girl is trademark infringement, because it was a part of a State Street advertising effort. This part includes a bit of a conspiracy theory about the placement of Fearless Girl:

The placement of Fearless Girl opposite Charging Bull also dilutes the Charging Bull's famous trademark. This is a violation of the Federal Trademark Law as codified at 15 U.S.C. §1125(c).

As discussed above, State Street Global Advisors installed the statue of the young girl in the plaza adjacent to Bowling Green and extended the cobble stone paving into the plaza. Had the statue simply been installed in Bowling Green, the statue would have fallen under the jurisdiction of the Department of Parks and Recreation. However, because the statue is technically in the plaza, it is now under the jurisdiction of the Department of Transportation. These machinations appear to be an attempt to create a token separation of the young girl statue from the Charging Bull and thereby to circumvent the legal need for Mr. Di Modica's permission to use his Charging Bull.

Or, you know, it was the best place to put the statue to make the point it was making. If you squint, maybe, there's barely some kind of argument that because Fearless Girl "uses" Charging Bull as a sort of component of a kind of advertising campaign, there's a trademark issue -- but, boy, I wouldn't want to be the lawyer who has to defend that argument in court.

Meanwhile, Mayor de Blasio seems to be taking this all in stride:

And now we get to see if this actually goes to court.


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  • identicon
    Anonymous Coward, 13 Apr 2017 @ 9:42am

    >Men who don’t like women taking up space are exactly why we need the Fearless Girl.

    Nice to see our elected officials parroting advertising copy. Might as well make Pepsi the official state beverage while you're at at.

    reply to this | link to this | view in chronology ]

    • icon
      trixtag (profile), 13 Apr 2017 @ 10:41am

      Re:

      <Might as well make Pepsi the official state beverage>

      FYI - NYC public school vending contract has Pepsi as exclusive products, having replace Snapple as the beverage of choice.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Apr 2017 @ 9:58am

    Wouldn't the Fearless Girl have VARA protection against moving it or the bull?
    Since it was created after 1990 and moving it or the bull would "distort, mutilate, or modify" the meaning of the statement the artist was trying to make, it seems trying to use VARA would only backfire against the bull's creator and leave both in place, forever.

    reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 14 Apr 2017 @ 4:29am

      Re:

      What concerns me is, if VARA really does work that way, you could use it as a weapon to prevent any kind of property development or remodeling.

      Just plunk a statue or a mural or even sidewalk chalk art down in front of something, then claim that the background scenery is part of the art. Suddenly, any alteration of that scenery becomes illegal. And it would be equally illegal for the property owner to remove the artwork.

      I realize this is the result of an international treaty, but seriously -- how can this be legal?

      reply to this | link to this | view in chronology ]

  • icon
    z! (profile), 13 Apr 2017 @ 10:02am

    I wonder if Di Modica has ever met Barbra Streisand; perhaps they can compare notes when it's over.

    reply to this | link to this | view in chronology ]

    • icon
      Ben (profile), 13 Apr 2017 @ 10:47am

      Re:

      It could be intentional. I certainly didn't recognize his name, but certainly recognized the bull. Bringing attention to his art (which is quite a stunning piece) by a stupid lawsuit does not diminish his art, so *advertisement*.

      Now if they could just find the right fearless girl lawyer to oppose him...

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 13 Apr 2017 @ 12:06pm

        Re: Re:

        It could be intentional. I certainly didn't recognize his name, but certainly recognized the bull. Bringing attention to his art (which is quite a stunning piece) by a stupid lawsuit does not diminish his art, so advertisement.

        In which case you differ from me in that while I'd seen pictures of the statue, and hadn't really thought much on it, learning that the person who made it is throwing a tantrum like this most certainly does diminish the art in my eyes, as it will forever more be linked to a hypocritical child now, something that will be brought to mind every time I might see a picture of it.

        reply to this | link to this | view in chronology ]

  • identicon
    Digitari, 13 Apr 2017 @ 10:05am

    Ironic

    The Bull needs a steaming pile of safe space

    reply to this | link to this | view in chronology ]

  • icon
    Stan (profile), 13 Apr 2017 @ 10:05am

    That law firm...

    That law firm might consider changing their name to:
    Dewey, DuCrack and Howe.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Apr 2017 @ 10:15am

    Is this why the value of works by sculptors and painters goes up after they die, they whine too much while they are alive for people to enjoy their work?

    reply to this | link to this | view in chronology ]

  • icon
    SteveMB (profile), 13 Apr 2017 @ 10:19am

    It is only because of the Charging Bull that the young girl statue can be considered "impossible to ignore."

    Paging Arturo Di Modica... there are a couple dozen architects and building owners here to discuss settlement terms for paying the debt you've just admitted to owing them....

    reply to this | link to this | view in chronology ]

  • icon
    Jeremy Lyman (profile), 13 Apr 2017 @ 10:26am

    Sounds like Di Modica should take his bull and go home.

    reply to this | link to this | view in chronology ]

    • identicon
      Norm, 14 Apr 2017 @ 7:21am

      Re:

      Exactly. NYC should rescind the temporary permit and give him 24 hours to remove the statue or it gets displayed at the bottom of the Hudson.

      New headline proposal:
      Artist sues because, "Someone else must be making money and I'm not getting a cut!"

      reply to this | link to this | view in chronology ]

  • icon
    btr1701 (profile), 13 Apr 2017 @ 10:26am

    Control

    > Second, placing something next to your artwork, even as a
    > comment on it, does not "distort, mutilate or modify" the
    > work.

    If this guy's theory of the law is correct, how far around a statue does an artist control?

    What if they put the girl statue on the other side of the street? What if it was down the block? Does this artist think he gets to control all artistic space within visual distance of his own statue?

    reply to this | link to this | view in chronology ]

  • icon
    btr1701 (profile), 13 Apr 2017 @ 10:41am

    Bull

    I haven't followed this story closely enough to know whether the artist still retains ownership of the bull, but if he does, and he's this butthurt over the placement of the girl, he should just remove the bull altogether-- take his ball (bull) and go home-- which would completely undermine the statue of the girl, because now she's fearlessly facing down nothing.

    reply to this | link to this | view in chronology ]

  • identicon
    Phalen, 13 Apr 2017 @ 10:42am

    This alteration of the Charging Bull and damage to its integrity...

    I have to assume that Di Modica understood what a "bull market" is and how that term brings context to the exact placement of his sculpture.

    Well, newsflash!, do you know who "damaged" the "integrity" of the ideals represented by the bull sculpture? Wall Street itself. Any damage to the "short-term-quick-profit-and-get-out" market dynamics represented here was done long long before that defiant girl statue went up.

    reply to this | link to this | view in chronology ]

  • identicon
    A Non-Mouse, 13 Apr 2017 @ 11:04am

    Uhh, Bullshit!

    "The statue of the young girl becomes the "Fearless Girl" only because of the Charging Bull"

    The picture I saw yesterday showed the girl standing alone. She still looked pretty fearless to me. You could have told me she was standing in front of the boogie man, or just walked the high wire, or said nothing at all. Wouldn't change a thing, she still looks fearless to me.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 13 Apr 2017 @ 11:40am

    About that...

    This alteration of the Charging Bull and damage to its integrity are prejudicial to Mr. Di Modica's honor and reputation...

    Yes, of course, it's the statue that did damage to his 'honor and reputation'. Has nothing to do with his reaction to it, nope, it's entirely the fault of the new statue.

    I hope he does carry on with his tantrum and the city responds with what I and several others suggested yesterday, revoking the permit and/or removing the statue. Let him bask in his (Pyrrhic) 'victory' as he scrambles to remove it before the fines start rolling in, or pay the fines incurred by others moving it for him.

    reply to this | link to this | view in chronology ]

  • identicon
    Anon, 13 Apr 2017 @ 12:24pm

    It's a time-honored tradition

    Derivative, Schmerivative. Take the example of the (not)Naked Cowboy in Times Square. First he played his quitar alone, rain or shine. Then there was the naked cowgirl, and the naked Indian maids (can I say Squaws?), then the painted show girls, and ultimately the naked M&M on the giant screen - which the original Cowboy sued over and won...

    (Still better than the Elmo infestation in Times Square in recent years.)

    Americans can't leave anything along, they have to pile on and beat an idea to death, good or bad. (Hollywood, anyone?) Does some guy think he can really sue? Maybe he and the cowboy should team up and sue CNN for the naked statue couple in their lobby - after all, they have nakedness, which steals an idea from the cowboy, and steals from Di Modica's concept of the same bronze patina - and of course, audience-polished shiny genitalia.

    reply to this | link to this | view in chronology ]

  • icon
    tom (profile), 13 Apr 2017 @ 5:21pm

    Since the bull was abandoned by the artist and ownership assumed by some NYC entity, it would seem that the owner of the statue can display it however they seem fit. Ownership still has some benefits. Of course, some companies and artists are working to minimize ownership, think Deere, Apple and this artist as examples. If the owner of the bull wants to put a small statue of a young female nearby, should be their right. If they want to cut the bull in half, should be their right. They own the thing. Now if they wanted to start selling copies either of the bull alone or of the bull and girl together, that would be a different issue.

    reply to this | link to this | view in chronology ]

  • icon
    frank87 (profile), 14 Apr 2017 @ 12:05am

    those moral rights ara really bad

    In my neighborhood an artist sued people, building wind turbines near his artwork for infringement. Article in Dutch: http://www.volkskrant.nl/archief/kunstenaar-ids-willemsma-verzet-zich-tegen-aantasting-van-zijn-werk -dijktempel-ontluisterd-door-windturbines~a444986/

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Apr 2017 @ 2:38am

    Mike Masnick just hates it when copyright law is enforced.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Apr 2017 @ 7:25am

      Re:

      Show me the copying.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 14 Apr 2017 @ 11:46am

        Re: Re:

        They're a troll, they post that crap on any article even remotely related to copyright(and fairly often on articles that have nothing to do with it.)

        As tempting as it may be to respond it's a waste of time, just click Report and move on.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Apr 2017 @ 1:41pm

    move the bull

    see if the girl follows

    reply to this | link to this | view in chronology ]

  • icon
    Coyne Tibbets (profile), 14 Apr 2017 @ 4:12pm

    Hatred of sharing

    I think Di Modica's real problem is that someone might look at something other than the bull; have a thought about something other than the bull. All those eyes and minds are his, by God!

    Heaven forbid he must share eyes and minds with a heathen!

    reply to this | link to this | view in chronology ]


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