Fearless Girl Face-off Poses a New Question: Does the Law Protect an Artist’s Message?
Di Modica’s lawyers argue that the bronze girl defiantly staring down Charging Bull isn’t so much art as an advertisement by the work’s corporate sponsors, allowing them to profit from Di Modica’s piece and violating his copyright.
But they also charge that the new statue—which ostensibly highlights the gender and pay gap on Wall Street—alters the originally positive message of Charging Bull without Di Modica’s permission, violating the artist’s legal rights.
Although a lawsuit has not yet been filed, even the potential claim raises novel legal questions about whether a statute known as the Visual Artist Rights Act (VARA) protects the intangible message of a work of public sculpture.
“Principles trump popularity,” Norman Siegel, one of Di Modica’s lawyers, told Artsy. “And there are really important principles here.”
The artist’s press conference came three weeks after Mayor Bill de Blasio announced that Fearless Girl, once slated to stand on Wall Street for a few short weeks, will remain on view through February 2018. In response to Di Modica’s request that the new sculpture be moved, de Blasio wrote on Twitter that “men who don’t like women taking up space are exactly why we need the Fearless Girl.”
But lost in the bluster and the mayor’s implications of sexism on Di Modica’s part—which Siegel called “offensive” and forcefully rejected—are the actual legal issues at play.
Enacted by Congress in 1990, VARA provides visual artists limited “moral rights” to their work—namely, the rights to proper attribution and the continued integrity of their art, including the ability to prevent intentional distortion, modification, or manipulation that is “prejudicial” to the “honor or reputation” of the artist.
Di Modica’s lawyers argue that this is exactly what occurred when State Street Global Advisors (SSGA), the finance firm which commissioned Fearless Girl, intentionally placed the work “in opposition” to Charging Bull.
In a letter to de Blasio asking for Fearless Girl to be moved, Di Modica’s lawyers cite VARA, noting that the artist’s sculpture was meant to serve as a positive and optimistic symbol following the stock crash of 1987. But with the addition of Fearless Girl and subsequent characterizations by de Blasio and others, the bull was transformed into something fearful and largely perceived as negative—impugning Di Modica’s “honor and reputation” as defined by VARA.
But Amy Adler, a professor in art law at New York University Law School, dismissed the notion that Di Modica has a case under VARA. “At the end of the day, the artist has no claim,” she said. While Fearless Girl genuinely alters the meaning of Charging Bull, Adler said moral rights under VARA don’t extend to how a work is displayed if there is no tangible alteration—even if Fearless Girl was conceived to be directly in dialogue with Charging Bull.
“Under moral rights in this country, while you can sue for someone actually physically changing a sculpture, changing a sculpture by placing another sculpture near it is simply not actionable,” Adler said, noting that this limitation has a clear logical underpinning. “We don’t want to let artists start suing curators because they don’t like who their work is displayed next to.”
Indeed, courts have historically interpreted “manipulation” under VARA to mean physical alterations. But teacher and lawyer Sergio Muñoz Sarmiento, who founded New York’s Art & Law Program, thinks it could have a more expansive application. As it stands, the wording of the law never explicitly limits the definition of manipulation to physical alterations.
As such, Sarmiento believes that Di Modica does have “legitimate claims” under VARA—which, despite being frequently invoked this and other cases, remains “very untested” in court.
Sarmiento also noted that, depending on what constitutes the work, Charging Bull may also have been physically modified. The cobblestone around and under the bull—land that is managed by the Parks Department—was extended during the installation of Fearless Girl, through the addition of more stones into an area managed by the city’s Department of Transportation.
It was the Department of Transportation that ultimately issued the permits for Fearless Girl. Siegel speculated that the city may have wanted to avoid a public hearing in advance of the work’s installation, which the Parks Department could have initiated. Neither the mayor’s office nor SSGA responded to requests for comment.
How the city permitted Fearless Girl and why the cobblestone extension was created (as opposed to placing the new sculpture on the existing stones) are questions Siegel hopes to answer through Freedom of Information Law requests to the city. And if the cobblestones are considered part of Charging Bull, the modification of the base could be deemed a physical alteration—one that falls within a more traditional reading of VARA.
“I don’t dismiss that possibility,” Siegel said.
Another issue is the commercial aspect of Fearless Girl. Though created by artist Kristen Visbal, the work was commissioned by SSGA and conceived of in conjunction with an advertising agency. While the sculpture highlights the gender gap on Wall Street—which has led critics to label it corporate feminism and call attention to the gender inequality on SSGA’s own board—it is also a branding opportunity, featured on SSGA’s website.
The work promotes the brokerage’s exchange-traded fund, “SHE” (a plaque advertising the fund originally accompanied the sculpture, but has since been removed). Should the courts see Fearless Girl as an advertisement, the work would be “placed in a different conceptual legal category,” said Sarmiento.
Siegel said the commercial aspect of the work, often overlooked in the debate about its message, is an important aspect of Di Modica’s claim. “[Fearless Girl] changed the message of the bull from positive to negative, and [SSGA] was making money off of it,” he said. “If an artist had put the girl there just for its message, it would be a different situation. But those aren’t the facts.”
Along with a letter to the mayor’s office, Sigel has sent messages to SSGA and the advertising agency they worked with and is waiting to hear back. For now, there is no concrete plan to bring a lawsuit; Siegel hopes a settlement can be reached.
For her part, Adler is critical of expanding VARA or moral rights in ways that might limit free speech and artistic expression. “A policy that would allow one artist to stop another artist’s work would be a mistake,” she said. “All public art is ideally in dialogue with the space it exists in. And that includes other sculptures.”
Isaac Kaplan is an Associate Editor at Artsy.