It was announced last month that, by popular request, the “Fearless Girl” will be allowed to remain where she is, staring down Wall Street in the heart of New York’s financial district, until early 2018.
Artist Kristen Visbal’s Fearless Girl statue was first put up for International Women’s Day as an advertisement for an investment fund comprising gender diverse companies.
Although only four feet tall, she has since caused quite a stir, not least because she stands directly in front of the famous “Charging Bull” – Manhattan’s iconic, three and a half ton symbol of financial optimism and prosperity.
Before being relocated to his current home, the bull was originally placed (without permission) in front of the New York Stock Exchange by its sculptor, Arturo Di Modica, in 1989 as a symbol of strength and hope after the 1987 stock market collapse.
By appearing to stare down the bull the Fearless Girl has been perceived by many as a symbol of female empowerment. Di Modica views the Fearless Girl as a publicity stunt and is unhappy that the decision to keep her where she is has been taken without his permission.
Aside from challenging the validity of procedural steps by which the decision to keep the Fearless Girl was taken, Di Modica’s lawyers have indicated that the presence of the Fearless Girl is a copyright infringement and that she should be moved and damages paid. This however is not a typical copyright infringement claim for example where a protected work has been reproduced or communicated without consent. In this case Di Modica would have to rely on his so called “moral rights” in the Charging Bull.
The Berne Convention sets minimum standards for copyright protection which its signatories must meet. Under the Convention the author of a work must have the right to “object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation”.
In this case Di Modica may have an uphill struggle because the Charging Bull is physically unmodified. If he is to be successful in having the Fearless Girl moved for infringing his intellectual property rights, Di Modica must show that the mere position of her distorts his work in some way.
The argument could be that the overall impression of the Charging Bull is somehow diminished by the Fearless Girl’s presence.
This begs the interesting questions of what exactly does the Charging Bull represent and how is that changed by the Fearless Girl?
Alternatively, Di Modica could argue that his own reputation is somehow prejudiced by the position of the Fearless Girl however this would require him to establish that any detriment to the Charging Bull reflected on him personally which could be difficult
In remains to be seen how Di Modica will chose to pursue his case but should he raise the issue of moral rights a far wider debate about gender equality and the symbolic power of statues generally is sure to follow.
Will Smith is an IP associate at Bird & Bird