Fearless Girl to be moved due to ... viability concerns
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| Charging Bull and Fearless Girl |
Initially an advertisement for an index fund which comprises gender diverse companies that have a higher percentage of women among their senior leadership, Fearless Girl has become a popular sight in Manhattan.
The reason why Di Modica was unhappy about the positioning of Fearless Girl is explained in his complaint to the Mayor.
His sculpture was meant to symbolize, initially, the 'strength and power of the American people and, then (after it was moved to its current location), the 'hope of the American people for the future'.
The meaning has arguably changed since the arrival of Fearless Girl. According to Di Modica, contrasted with the soft, altruistic characteristics of the bronze girl, Charging Bull now appears menacing and aggressive.
Fearless Girl as a derivative work
Di Modica's lawyers have argued that Fearless Girl is a derivative work: 'The statue of the young girl become the "Fearless Girl" only because of the Charging Bull: the work is incomplete without Mr. Di Modica's Charging Bull'.
According to the complaint, also the features of Visbel's work have been deliberately chosen to create an association/contrast with the Charging Bull, including its material (bronze) and patina.
The result is that '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 direct violation of Mr. Di Modica's copyright.'
§106 of the US Copyright Act provides in fact that the copyright holder has the exclusive right "to prepare derivative works based upon the copyrighted work".
It should be however noted that such exclusive right is: (1) subject to fair use within §107 and (2) the author of a derivative work owns the copyright to the material that he/she has contributed and this is independent of any copyright protection in the preexisting material, as per §103.
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| Fearless Girl and a Kat |
Besides issues of trade mark dilution, Di Modica's lawyers also argued that the altered meaning of Charging Bull would violate the work's integrity and cause prejudice to the author's honour and reputation, thus amounting to an infringement of §106A.
At the time of reporting on the complaint, I suggested that, 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 direct intervention on 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)
Finally, it is worth noting that also §106A protection does not exclude availability of fair use within §107 of the Act.
The latest development
Despite all this, on 19 April last Mayor Bill de Blasio announced that Fearless Girl will move to a new location in front of the New York Stock Exchange by the end of this year.
But what reasons have been given for this decision if the threat of litigation on copyright grounds from Di Modica is not mentioned in the press release?
Well, believe it or not the reason is ... health and safety and viability!
"The new, long-term home will also alleviate safety issues arising from the large numbers of pedestrians and visitors drawn to the statue, which has been located on a narrow median on Broadway", says the press release.
While the reasons given by the Mayor for his decision are indeed noble ones, it is a pity that Fearless Girl is being moved.
Two, brief, additional points can be made.
The first one is that Fearless Girl communicates a certain message irrespective of its location. In this sense, the claim that it is a derivative work that draws its meaning from the positioning in front of the Charging Bull may be debatable. Similarly questionable are, as explained above, the moral rights concerns.
The second point relates somewhat to the reasons given for its relocation and concerns indeed urban planning. Would it be a good idea for an author to be in a position to have a say over items or even buildings placed in the proximity of his/her publicly displayed work or ... would that be just too much (possibly with the exception of special circumstances)?
[Originally published on The IPKat on 22 April 2018]
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