Posted: June 25th, 2017
By: Cara Katrinak*| Guest WriterBig things come in small packages. After reigning over Wall Street for nearly 30 years, the 3 ½-ton bronze sculpture “Charging Bull” is facing off against a 4-foot adversary in Lower Manhattan. “Fearless Girl,” commissioned by State Street Global Advisors to commemorate International Women’s Day, features a bronze girl, hands-on-hips, blocking the path of the famous bull. While “Fearless Girl” was designed to be the Financial District’s symbol of women in leadership, Arturo Di Modica, the artist behind “Charging Bull,” wants “Fearless Girl” to promote her message somewhere else.
Di Modica claims that “Fearless Girl” infringes on his copyright and violates the Visual Artists Rights Act (VARA). In a letter from his lawyers, Di Modica explains that “Charging Bull,” originally intended as a symbol of peace, strength, and freedom after the stock market crashes in the late 1980s, “no longer carries a positive, optimistic message” in the context of the bovine’s new neighbor. The letter goes on to accuse State Street Global of improperly commercializing “Charging Bull” by designing “Fearless Girl” as a site-specific piece with the bronze beast in mind.
No doubt the installation of “Fearless Girl” has altered the interpretation of “Charging Bull.” However, Di Modica’s claims are unlikely to hold up in court. Copyright only protects an artist’s physical work, not how that work is received or understood by others. VARA, as an extension of copyright law, protects works from “distortion, mutilation, or other modification,” but the statute has not yet been construed to include ideological modification by neighboring works.
In similar cases, courts have already ruled that VARA offers no protection for site-specific pieces in changing environments. In Phillips v. Pembroke Real Estate, Inc., the First Circuit held that VARA does not even apply to site-specific art. The Seventh Circuit affirmed Phillips in Kelley v. Chicago Park District, which addressed alterations to a work in a public park.
While an extension of VARA to include protection against altering the intended message of a piece would provide Di Modica some relief from “Fearless Girl,” such a statutory interpretation would render museums a legal minefield. As Phillipa Loengard, deputy director of Columbia Law School’s Kernochan Center for Law, Media and the Arts, notes, “[Museums would] have to curate collections depending on what the artist thought the other paintings in the gallery meant.” Of course, any artists who wish to control their work’s environment are free to contract for that right.
For now, the law has no remedy for Di Modica. And with the recent extension of the permit for “Fearless Girl,” it looks like the dueling statues are going to be neighbors for a while.
Cara Katrinak recently completed her first year at Wake Forest University School of Law. She holds a Bachelor of Arts in Art and Art History, with a minor in Kinesiology and Health Sciences, from the College of William and Mary. Upon graduation, she intends to practice entertainment law.