Charging Bull vs. Fearless Girl: Why the Artist Has No Case
The maker of the iconic Wall Street bull sculpture is unhappy about a new statue, known as “Fearless Girl,” staring down his creation, and said this week he may sue to get rid of the female figure.
The threat added yet more grist to the debate over the sculptures and what they symbolize. But if the proper place of capitalism and feminism is up for debate, the legal issue is not: The fate of “Fearless Girl”--who is now slated to stare at the bull for a full year--looks like an open-and-shut case.
The reason is that the artist, Arturo Di Modica, may dislike the new statue’s challenge to his Charging Bull, but there’s not much he can do about it under U.S. copyright law.
Unlike other countries, the United States has very weak protection for “moral rights,” which help artists protect the integrity of their work. For instance, in a famous Canadian case, an artist successfully invoked moral rights to sue a department store that hung Christmas bows on his geese sculptures.
Di Modica, though, faces a number of hurdles to invoking the U.S. version of moral rights, known as the Visual Artist Protection Act, or VARA.
These include the fact VARA only allows artists to stop the “distortion” or “mutilation” or their work, or prevent modifications that would harm their “honor or reputation.” So while Di Modica can argue the presence of “Fearless Girl” changes the message of his work (it transforms the overall tableau from roaring capitalism to female empowerment), it’s hard to see how this is a mutilation or how it hurts his reputation.
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Then there is the question of whether Di Modica can even invoke VARA in the first place. As law professor James Grimmelmann points out, the law only applies to works created after it passed in 1990 unless the artist did not transfer the title to the work--something that is unclear in this case.
Finally, Josh Lamel of the Re:Create Coalition, argues Di Modica’s legal challenge could fall afoul of the First Amendment. In the view of Lamel, who is a lawyer, judges would conclude VARA violates free speech by forbids artists displaying their work near existing pieces--and he says many artists would agree.
"I don't think this is going well for De Modica, either in online activist communities or even artist communities. The reaction I’ve seen is ninety percent negative and ten percent positive,” Lamel told
Not everyone, of course, is against De Modica. Some say “Fearless Girl” is a lightweight, ersatz form of feminism, and echo De Modica’s assertion that “Fearless Girl” is just a publicity stunt ginned up by a corporate advertising company.
But from a legal point of view, he has no case, so Charging Bull and Fearless Girl better get used to spending a lot of time together.