ASK THE ART LAWYER: A “Fearless Girl” Has Shown Up to Tame a “Charging Bull”

By Octavio Robles, AIA, Esq.

IS IT COPYRIGHT INFRINGEMENT OR JUST… BULL?

On the morning of March 8, 2017, a 50-inch bronze “guerrilla art” sculpture of an adolescent girl in pigtails and wearing a wind-blown skirt with her head defiantly up and arms at her hips mysteriously appeared staring at Charging Bull, a massive sculpture of a bull symbolizing Wall Street situated on the same traffic island in Bowling Green park in Manhattan that has been its home, near Wall Street, since December 1989. March 8 happened to have also been “International Women’s Day,” and the sculpture is appropriately called Fearless Girl. It was commissioned by State Street Global Advisors, the asset management subsidiary of the multinational financial services firm State Street Corporation. The commissioned artist is Uruguayan-American Kristen Visbal, who modeled the sculpture after a combination of a Latina-Anglo-mixed girl she knew. The stated objective of the work and its strategic placement, appearing to be standing up to the massive bull, was to advance the cause of more women serving on the boards of large corporations. State Street itself has three women serving on its 11-member board and has led the effort of persuading the companies it invests in to include more women on their boards.

Charging Bull, a 7,000-pound, 11-foot-tall sculpture, which was itself considered a “guerrilla art” installation, was also placed, without permission, in the middle of the night, in front of the New York Stock Exchange in 1989 by its artist, Arturo Di Modica, and the Brooklyn foundry that casted it, as a “gift to the city” and symbol of hope to commemorate American strength, resilience and determination to bounce back after the 1987 stock market crash. The sculpture’s popularity persuaded city leaders to move it and permanently install it in its present location. Over the years, Charging Bull has evolved to symbolize more than just hope and American strength, resilience and determination, but also the perceived greediness of Wall Street and its macho, male-controlled, “men and power” players.

Fearless Girl is a bronze sculpture by Uruguayan-born American artist Kristen Visbal, depicting a defiant girl staring down the well-known Charging Bull (or ‘Wall Street bull) statue. Photo: Daniel Norton. www.flickr.com

ALONG COMES A LITTLE GIRL

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Di Modica and his spokesman, Arthur Piccolo, are claiming that the Fearless Girl sculpture should be removed because it was illegally placed there and is changing the intended meaning of Charging Bull. This is ironic, given that Charging Bull was also initially an illegal sculpture. Piccolo goes on to say that, “It is an outrage to take a great work of art and transform it.” The problem is that Fearless Girl, although intended as only a temporary installation, after several weeks of exposure via social media throughout the world, has become as popular as Charging Bull itself. An online petition to keep her in place on a permanent basis has begun and gotten traction. At first, the city agreed to allow Fearless Girl to remain until April 2. Later, mayor Bill De Blasio announced that the new work was granted a permit to remain until March of next year. As a result, Visbal is being sued to have her sculpture removed because, it is alleged, Fearless Girl constitutes a copyright infringement on Charging Bull.

WHY CAN’T WE GET ALONG?

Piccolo, the spokesman for Charging Bull’s sculptor, is claiming that Visbal’s work infringes on the intellectual property rights of the bull’s sculptor because it was intended to change the meaning of the bull. According to Piccolo, “It was a highly coordinated and carefully planned conspiracy to defraud Arturo Di Modica of his copyright.” He went on to argue that “the only reason Fearless Girl was commissioned by State Street was to be placed directly in front of Charging Bull…which has caused the two sculptures to effectively merge into a single image, inseparable from each other.” This legal argument implies that Fearless Girl infringes on the bull’s copyright because its addition to the vicinity of Charging Bull and its perceived new “combined total image” constitutes a derivative work created without the permission of Di Modica.

There’s no question that Fearless Girl has likely changed the perceived meaning of the combined sculptures in the minds of most observers. There’s also no question that Charging Bull, even if it is not registered, is protected by copyright. Most people will likely agree that the two images have now merged into one, but not necessarily so in all instances. There may be others that see the two as distinctly separate sculptures in addition, or not, to its combined suggested meaning. The bull may continue to be perceived as a symbol of Wall Street’s male dominance while the girl may be alternatively and separately perceived as a symbol of feminine assertiveness. More importantly, there was never any act of copying. Fearless Girl never copies, touches or alters the bull in any way. It is only a suggestive psychological implication as opposed to a physical forced alteration of the bull. It is a very subtle but important distinction.

BULL

The implication that Fearless Girl was effectively a “derivative work” because it makes Charging Bull a component of the combined sculptures is subjective. The relationship between Fearless Girl and Charging Bull is so subtle and distinct at the same time, so integrated, that a finding of the whole being a derivative work and thus an infringement of the bull’s artistic copyright would be an imaginary reach. In effect, it is a forced conclusive interpretation of two nearby separate images. Additionally, an opposing argument could also be made that Fearless Girl only “references” Charging Bull, and referencing another work of art does not rise to the level of making it a derivative work. If it did, much of the art in the world that has referenced other art would be considered derivative works and thereby an infringement if done without permission from the artist of the referenced work. Because Fearless Girl is an expression in Visbal’s own right and does stand alone, a judicial fishing expedition for an infringement of copyright would, in effect, be “bull.”

THEN THERE’S THE FAIR USE DOCTRINE

Fearless Girl is as equally public a commentary about Wall Street today as Charging Bull was 28 years ago when it first appeared. Fearless Girl can certainly also be considered a public commentary or criticism of Charging Bull and its present-day symbolism. One of the exceptions to copyright infringement contained within the doctrine of fair use is when the protected work is the subject of public commentary or criticism. Certainly that is the case here. Therefore, even if there was the unlikely finding of copyright infringement due to a judicial determination of the pair being a derivative work, the infringement would be protected under the fair use doctrine.

Octavio Robles, AIA, Esq. is a legal contributor to ARTDISTRICTS and a member of the Florida and Federal Bars (Southern District of Florida). He is a Florida Supreme Court Certified Mediator and Approved Arbitrator; a member of the Construction Committee of the Real Property, Probate and Trust Law Section, the Art and Entertainment, and the Alternative Dispute Resolution Law sections of the Florida Bar; and a member of the American Institute of Architects, Art Deco Society of Miami and Copyright Society of the USA. He holds licenses as a registered architect, state-certified general contractor and real-estate broker in Florida and is a LEED-accredited professional. He received his Juris Doctor degree from the University of Miami School of Law in 1990. He holds master’s degrees in architecture and construction management and a bachelor’s degree in design, all from the University of Florida. His practice is limited to art, design, architecture, construction and real-estate law.