GIRL EATS BULL: Fun with Legal Precedents

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Fearless Girl, a commissioned work created by Kristan Visbal for advertising agency McCann New York’s client State Street Global to advertise their SHE fund. Photo by David Kaplan

The Wall Street bull, or “Charging Bull” as the sculpture is called, has become, since its 1989 guerilla placement under a Christmas tree across from the New York Stock exchange, an icon of Wall Street, and an alluring tourist attraction. Its stature has made it a source of much (too MUCH) pride for its author, Arturo Di Modica.

Fearless Girl is a sculpture commissioned by New York ad agency McCann New York on behalf of their client State Street Global. It was created by Kristan Visbal, who finds herself sharing, not just territory with Di Modica’s bull, but also an expanding controversy bordering on a lawsuit.

An April 11 letter from Di Modica and lawyers, Siegel Teitelbaum & Evans, LLP and McLaughlin & Stern, LLP, to New York City Mayor Bill De Blassio, and also to McCann New York, outlines the possible legal strategy that will be taken by their team if the girl continues her stare down with the bull.

So, I have decided to set aside my opinions about the quality of the art…

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What I think about the artistic quality of Charging Bull and Fearless Girl

…and address the myriad precedents which this case could wind up setting.

Girl Eats Bull

The fact is, tempting as it is to pick a side according to one’s politics, or one’s artistic preference, or according to which artist one most identifies with, it is far more interesting to examine the potential legal precedents the case could set.

For instance, Di Modica v McCann could wind up adding a strange new twist to the question of fair use!

This is because the artist’s legal team is making the unusual charge that by dint of placement, and the manipulation of design elements such as matching patinas and extended cobblestones, McCann New York has made Charging Bull a reluctant part of “Fearless Girl.”

The claim is, essentially, that she has swallowed him wholesale!

To quote the letter:

“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.”

This is a nice argument. And by “nice” I mean sharpened to a point so fine it might just break. However, if a court were to accept that Charging Bull has, in effect, been incorporated into Fearless Girl, then the fact that the entirety of the former is used in the latter means that McCann loses any claim to fair use. It’s a stretch, but, by god, if it goes through: look out public art curators!

Less of a stretch is the milder statement that “Fearless Girl” is only fearless if she’s facing the bull, so that “the work is incomplete without Mr. Di Modica’s Charging Bull, and as such it constitutes a derivative work of the Charging Bull.”

Girl Pimps Out Bull

Section 107 of the Copyright Act sets up grounds for evaluating fair use by examining four factors (or prongs):

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

We’ve seen that the ‘Girl eats Bull’ claim would place McCann in violation of fair use, but it’s the first and fourth prongs that hold the most mojo for Di Modica and his legal team.

Pointing to the fact that the girl statue was created for commercial purposes and is accompanied by a plaque stating, “Know the power of women in leadership. SHE makes a difference” Di Modica’s team argue that “the statue is first and foremost an advertisement for SSGA and specifically for SSGA’s SHE fund.” This, they say, is commercializing and exploiting Di Modica’s sculpture.

Of course this argument only holds up if a judge can agree that the bull has everything to do with the success of the advertisement. Think about it this way: if Fearless Girl and her SHE plaque are located somewhere outside of dialog with Charging Bull, is the message weakened? Yes. Is it still strong? Maybe. Is it erased? Nope.

Girl Slanders Bull’s Good Name

This brings us to VARA, the Visual Artists’ Rights Act of 1990 :

Invoking VARA, in this case, Di Modica’s legal team have stated that the placement of Fearless Girl and the message implied by the plaque have modified Charging Bull and have made the sculpture into a symbol of oppression.

“Additionally, the placement of the statue of the young girl in opposition to the Charging Bull has undermined the integrity of 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.”

The letter goes on to claim that “the 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 argument here relies on the lawyers’s ability to tie Fearless Girl’s message to Charging Bull. Similarly, resting on the patina, cobblestone base, and placement is the case for Trademark infringement which the letter also touches on.

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Bull Seeks Cover

Some have argued that VARA does not cover the bull since it was created and placed in 1989. VARA’s outline of which works it applies to is hard to follow, however the convoluted text seems to indicate that works created after the “effective date” of 6 months prior to enactment, are covered by VARA if and only if the rights have not yet transferred from the author.

Charging Bull, was granted its “temporary” permit by the city in 1989, but it still belongs to Di Modica, and so, is in fact, protected by the Visual Artists’ Right Act of 1990.

What this means is that if it goes to court, Di Modica v McCann could bring up all sorts of issues about the rights of street artists whose work is often tolerated on public walls without any transfer of ownership.

More interesting is the fact that if VARA is invoked it could add definition to a vague phrase in the law pertaining to its coverage of “works of stature” — adding a new dimension that, again, could impact future cases regarding street art and/or art which is useful to the city for tourism and branding.

Di Modica’s lawyers may try to claim that Charging Bull is a “work of stature” and will likely support this, not by references to the artist’s career kudos, not to his representation in important collections or museums, but, instead, to the impact his sculpture has had on New York City.

In 1993, Henry J Stern, the city parks commissioner at the time, enthused, “People are crazy about the bull. It captured their imagination.” By 2004, Adrian Benepe, the New York City parks commissioner, stated that the bull had “become one of the most visited, most photographed and perhaps most loved and recognized statues in the city of New York,” and placed it “right up there with the Statue of Liberty.”

Googling Wall Street reveals many pictures of Charging Bull, with tourists happily, if at times lewdly, interacting with it. It has also been featured in many films over the years, such as For Richer or Poorer (1997), Hitch (2005), Inside Man (2006), The Other Guys (2010), The Sorcerer’s Apprentice (2010), Arthur (2011), and The Wolf of Wall Street (2013). It also played a crucial role as castrated capitalist symbol in the television series Mr. Robot.

In short, Charging Bull has become, arguably, an important piece of NYC culture and branding. Such definitive iconic value may just prove to be the biggest thing the bull has going for it, a value which may wind up adding to VARA what the notion of “transformative use” added to the fair use doctrine.

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Addendum:

In this article, I speculated about whether or not Di Modica’s legal team would rely on a “work of recognized stature” designation which would give the artist the right “to prevent any destruction of a work of recognized stature.”

I contacted them and received a reply to the effect that “Although we are confident that Charging Bull would be recognized as a “work of recognized stature”, Mr. Di Modica is not claiming that Charging Bull has been destroyed and, therefore, he is not relying on this provision of VARA to support his claim.”

 

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