The team is joined by Guest Kats Rosie Burbidge, Stephen Jones, Mathilde Pavis, and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Hayleigh Bosher, Tian Lu and Cecilia Sbrolli.

Wednesday, 12 April 2017

Author of Wall Street Charging Bull is raging over Fearless Girl, but does he have a valid moral right claim?

Fearless Girl
Readers will be aware that last month a sculpture by Kristen VisbalFearless Girl, was unveiled in Manhattan's Financial District as an advertisement for an index fund which comprises gender diverse companies that have a higher percentage of women among their senior leadership [read the Wikipedia entry here]Fearless Girl was placed opposite the well-known (originally guerrilla art) Charging Bull by Italian-born sculptor Arturo Di Modica. It is arguable that it is indeed because of this particular positioning that Visbal's artwork appears so powerful.

Initially Fearless Girl was expected to stay in place just for a few weeks, but in late March it was announced that the sculpture would not be removed until February 2018. Despite some criticisms, one of the reasons of the success of Fearless Girl appears to be its perception as a symbol of female empowerment and strength. Visbal has stated that she was careful to keep the girl's features soft to communicate that she is not defiant or belligerent: she is rather brave, proud and strong.

Not everyone, however, appears happy with the statue remaining: several newspapers report that later today Di Modica will hold a press conference explaining more at length why he intends to challenge the decision of New York mayor Bill de Blasio. The principal reason why Di Modica is against Fearless Girl seems to be that he believes that the integrity of his bull is in peril: contrasted with the soft, altruistic characteristics of the bronze girl, Charging Bull now appears menacing and aggressive, according to its author.

Di Modica might bring an action for copyright infringement. But what chances of success would he have since no economic rights seem at stake in this case? What Di Modica might have in mind is an action based on moral rights infringement, notably the right of integrity.

Moral rights in Berne

At the international level it is the Berne Convention that articulates the minimum legal content of the moral rights of attribution and integrity, as developed by continental European case law and doctrine. Article 6bis states that, independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work, and object to any distortion, mutilation or other modification of, or other derogatory action in relation to, his/her own work, that would be prejudicial to his/her honour or reputation. 

A Fearless Girl facing a Charging Bull
Since the Convention merely provides minimum standards, the way in which Berne countries have intended and applied moral rights varies greatly. Differences are pronounced even within Europe. In some, so-called ‘monistic’ copyright regimes, eg Austria and Germany, the moral rights last as long as the economic rights. In the UK and Ireland, moral rights likewise last as long as economic rights, but in these Member State moral rights may be waived. In the ‘dualist’ conception of copyright in droit d'auteur jurisdictions, such as France and Italy, moral rights are separate from patrimonial and economic rights, are perpetual, and may not be waived.

Moral rights in the US

As far as the US is concerned, moral rights protection is currently [the US Copyright Office is undertaking a public study on moral rights] narrow, especially if compared to droit d'auteur jurisdictions. Introduced in 1990 through the Visual Artists Rights Act, §106A of the US Copyright Act is arguably the only moral right provision under US copyright law, and its scope is limited. While acknowledging the moral rights of attribution and integrity, this provision only applies to 'works of visual arts' which are narrowly defined under §101. 

Although Di Modica's sculpture might potentially qualify for protection under §106A, the right of integrity envisaged therein is only actionable in relation to a "distortion, mutilation, or other modification of the work which would be prejudicial" to the honour or reputation of the author. Arguably Fearless Girl and its positioning have not resulted in any derogatory action on or treatment of Charging Bull.

In addition, §106A(c) sets significant exclusions to moral rights protection. Of particular interest here is that "[t]he modification of a work of visual art which is the result of conservation, or of the public presentation [can the addition of Fearless Girl be considered part of the Charging Bull's public presentation?], including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification ... unless the modification is caused by gross negligence." (emphasis added)

It would appear that in the present case §106 could not be an easy one for Di Modica to rely upon. While under US law he might have claims under other areas of the law (possibly defamation? It might be far-fetched but perhaps not to be ruled out at the outset), if he wished to explore if any opportunities under copyright law might be available, then he might want to explore his Italian roots a bit further.

Arturo Di Modica
Moral rights in Italy

Being an Italian citizen, he could in fact rely on Article 185(1) of the Italian Copyright Act in fact clarifies that the provisions contained therein are applicable to any works by Italian authors, wherever published for the first time. 

Similarly to France and as mentioned above, also under Italian law moral rights protection is generous. As far as the right of integrity is concerned, Article 20(1) states that the author of a work can object to "any deformation, mutilation or any other modification, and any other damage to the work itself, that can be prejudicial to his/her honour or reputation." (emphasis added)

However, also in this case, the damage at issue (which does not necessarily require a treatment of or action in respect of the work) must be prejudicial to the honour or reputation of the author, not the work. Is the positioning of Fearless Girl to be regarded as prejudicial to the honour and reputation of Di Modica? For a court that might be hardly the case, even within a moral rights-friendly legal system.

Conclusion


It will be interesting to hear what Di Modica says in his press conference, and whether any proceedings are actually brought. In any case, litigation based on moral rights alone might be hard to win. But what do readers think?

[UPDATE on 13 April 2017: At the press conference held on Wednesday, 12 April Di Modica's attorney mentioned copyright and trade mark issues: http://www.nbcnewyork.com/news/local/NYC-Charging-Bull-Sculptor-Arturo-Di-Modica-Doesnt-Like-Fearless-Girl-Statue-419212814.html]

[UPDATE on 14 April 2017: Here's the letter of complaint sent to New York mayor Bill de Blasio: https://assets.documentcloud.org/documents/3559411/344998311-Letter-to-Mayor-DeBlasio-on-Charging.pdf]

5 comments:

Mike Dunford said...

I think this article might underestimate the potential §106A case under US law. There's been very little caselaw in this area, so it's hard to predict outcomes, but I think there's at least a plausible case to be made for a violation.

From a statutory interpretation perspective, I'm not convinced that §106A(c)'s exception applies here. Reading the statute in conjunction with (a)(3)(A), it seems more likely that the statute is drafted to ensure that accidental damage to a work that results from an intentional change in the work's public presentation doesn't become actionable under copyright unless gross negligence was involved. Reading the exception to cover deliberate modification through change in public presentation is difficult to reconcile with the way (a)(3)(A) is drafted. The bill's definitely not the best work of legislative draftsmanship ever, but I have a hard time seeing an American court reach the conclusion that intentional modification through changing a work's public presentation is totally cool, but grossly negligent modification through changing a work's public presentation isn't.

Legally, I think the central legal questions for a 106A claim will be:
1: Is "Fearless Girl" a complete work of art in its own right, or merely an addition to the "Charging Bull?"
2: Does the addition of "Fearless Girl" distort or modify "Charging Bull?"

3: Does "Fearless Girl" make fair use of "Charging Bull?"

The fair use defense could be very interesting to see argued in this case. Rights under §106A are explicitly subject to §107 (fair use), so the defense is available. But the fact that this involves the sole original work rather than a copy will make for a very interesting analysis on the "amount taken" prong.

I've left the question of whether the modification (if any) is detrimental to the artist's reputation off the list because it's going to purely be a question of fact, potentially provable through witness testimony. The other questions are questions of law as much as questions of fact.

Barbara Cookson said...

I think the pigeon is the fearless one in this picture. However I am not going to invest in a fund prepared to face down a bull market - not a good thing at all. We need to move the girl atop the bull so she can ride the bull and can we have a bear for her to fight too

Anonymous said...

Some people have far too much time and money and need to get a life.

Anonymous said...

"he believes that the integrity of his bull is in peril: contrasted with the soft, altruistic characteristics of the bronze girl, Charging Bull now appears menacing and aggressive"

Because it wouldn't otherwise? I don't see that the addition of the girl changes the impression of the bull whatsoever.

Daniela Peluso said...

Fearless Girl facing Charging Bull simply restates outdated gender stereotypes.
https://theconversation.com/fearless-girl-facing-charging-bull-simply-restates-outdated-gender-stereotypes-heres-why-79122

Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':