The diverse and intense attention paid to Arturo Di Modica’s Charging Bull and Kristen Visbal’s Fearless Girl is exciting; I’m not used to hearing so many voices, from so many quarters, weighing in on artists’ rights. And, unlike the last controversy of this magnitude (Richard Prince’s New Portraits), opinions are divided.

Stories about artists’ rights seem to capture and sustain public attention when the issues at hand are muddled. Di Modica has presented several different complaints about Fearless Girl; some are legal, some are economic, and some are ethical. I understand that it’s easier to keep an argument going when the participants are arguing past each other rather than discussing specific issues in an organized way. Mixing the issues in a way that promotes further discussion makes sense if you’re writing for a web site that profits from clicks and comments. (Even some real lawyers are doing it – commerciality does not automatically knock out a fair use defense, especially in New York!) But I don’t think this approach helps readers come to an informed opinion.

I couldn’t care less about my site numbers (obviously), but care a whole lot about whether or not people understand art and intellectual property law (which I hope is obvious). At the risk of boring you to tears – but perhaps helping you come to an informed opinion – I’m going to synthesize some prior commentary on the situation below, as well as disentangle Di Modica’s many arguments.

Before we go on, if you’re not up on the details, stop here and read this New York Times article. If you’re a lawyer (or nerd), take it a step further and read the letter delivered by Di Modica’s counsel to the city.

Got it? We good? Great. First, let’s separate Di Modica’s legal and non-legal arguments. I’ll go through the legal arguments from least to most plausible, in really basic language – no case cites, Latin, etc. (Side note: If you’re a lawyer and want to argue an arcane point, have at. I’ll respond in kind. That’s what we do, right?)

The legal bits are discussed and linked out to the handful of other legal analyses presented. They’re great sites and writers: if you’re interested in art and IP, stop reading Slate and HuffPo, and spend your time with Art Law Report.

The non-legal bits are discussed and linked out to many other commenters who have made me pause and think about an aspect of the situation in a productive way. If you are reading this, following the discussion, and have come across other great articles/posts, please include them in the comments section below.

[ Legal arguments ]

 

(1) Trademark Infringement?

Broadly speaking, a trademark is a word, phrase, symbol or design, or (combination thereof), that identifies and distinguishes the source of the goods of one party from those of others. It is meant to protect against the possibility or promotion of consumer confusion by a competitor. So you don’t walk into the grocery store and accidentally buy Sierra Nevada instead of Lagunitas. (In what world would that would ever be an accident? I digress.) Di Modica might be able to claim that Fearless Girl infringes or dilutes his trademark over Charging Bull – if Di Modica has a registered trademark.

– So, does he have a registered mark?

Yep! But a trademark isn’t universally applicable; it is conferred by the United States Patent and Trademark Office after an application process. In his application to the USPTO, Di Modica had to indicate the products on which he wished to place the mark. They approved, so Di Modica’s trademark for Charging Bull covers t-shirts, tiespreserved meats and fish, chocolate and other sweets, and wine.

– Is there a likelihood that consumers could be confused about the origin of Charging Bull products?

Nope. As yet, the creators of Fearless Girl haven’t implied any association with Charging Bull in the markets for prosciutto or cotton/poly tees.

– Does Fearless Girl dilute (i.e., impact the value) of the Charging Bull trademark?

Di Modica appears to be suggesting “tarnishment” – that Fearless Girl alters the perception of the Charging Bull trademark in a distasteful way that affects the value of the mark. For example, if a porn site called Adults”R”Us infringes the word mark held by Toys”R”Us, but a site called Toys”R”Gus might not. (We’ll never know – Gus changed the name.) But “Visbal is not “using” Charging Bull, The Fearless Girl, nor is her sculpture similar to di Modica’s in any meaningful way,” and Di Modica needs to establish both use and similarity.

Generally, dilution is only available for famous marks – think Barbie or Coca-Cola. Charging Bull probably isn’t famous enough for Di Modica to claim dilution. Furthermore, he doesn’t seem to be using the mark, which would also be a problem. (If you can find Charging Bull chocolate, I want to see it.)

Conclusion: No claim here.

(2) Copyright Infringement?

Unlike trademark, copyright vests in the artist without application or approval (at least, for works made after 1976). Thus, it is safe to assume that Di Modica gained a copyright in Charging Bull as soon as it was made. However, to present a claim for copyright infringement in a court, Di Modica needs to satisfy a few more requirements and answer a few questions.

– Was is created after 1976 (i.e., does the current act apply)?

Yep! Charging Bull was made in 1989.

– Is Charging Bull “copyrightable subject matter” – (i.e., is it a creative work fixed in a tangible medium)?

Definitely!

– Does Di Modica own a valid copyright?

He does! It’s registered, too, so he can sue for infringement. (He gets a copyright automatically, but to actually file a claim for infringement, the work must be registered with the U.S. Copyright Office.)

– Did the creator of Fearless Girl copy protected elements of the plaintiff’s work?

No, Visbal did not. If Di Modica proceeds, a court is likely to throw the case out early, because Fearless Girl does not copy any element of Charging Bull. As David Post succinctly explains:

Copyright law protects his work — the design of the “Charging Bull” sculpture — against certain very specific actions by others: reproduction of the work, or distribution of copies of it to the public, or the public display of the work. Unless what you do falls within one of these categories of prohibited conduct, it’s not an infringement — even if it amounts to a “commercialization” of the work.

But, just for the satisfaction of intellectual curiosity, let’s keep going. Di Modica has claimed that Fearless Girl is a derivative work based on Charging Bull (i.e., a new creative work based on a pre-existing creative work). The right to make derivative works is an exclusive right reserved to a copyright holder – some significant examples include the film adaptations of novels; Italian dubs of Disney films; a Harry Potter encyclopedia based on the works of JK Rowling; and a book of Seinfeld trivia published by someone other than the Seinfeld writers and producers.

Fearless Girl would not exist without Charging Bull, so this is not an entirely baseless assertion. As commenters on Post’s article pointed out, Fearless Girl does rely upon the presence of another sculpture for its very existence. But here’s a good example of a muddle, from Christine Emba of The Oregonian: “The meaning of “Fearless Girl” is completely dependent on its placement across from his famous sculpture.”

Actually, it isn’t. As Post explained, Fearless Girl doesn’t rely on Charging Bull. It probably works best sited across from Charging Bull, but would still be comprehensible if placed opposite another bull sculpture, or another opponent of any kind. Di Modica only holds a copyright over the specific design of Charging Bull – not over all bull sculptures, or anything else that might be dropped in front of Fearless Girl. Returning to Post’s fine breakdown:

“Visbal didn’t perform any of the prohibited acts; she didn’t touch or alter or reproduce or displace the design of Di Modica’s sculpture, or incorporate any parts of his design into her design.”

In other words, Visbal’s sculpture does not rely on Di Modica’s copyrighted expression in the manner required for characterization as a derivative work. Visbal’s sculpture relies on an opponent, but it does not rely on Di Modica‘s opponent.

Conclusion: No claim here.

There is no point in discussing fair use, because there is no claim against which to present a fair use defense. But if we did, nature is obviously for Di Modica; there is no cognizable market harm; Di Modica and his attorney are already making the case for Fearless Girl’s characterization as a transformative use; and therefore “amount” would be the most interesting part of the inquiry. What, exactly, did Visbal take?

(3) Violation of the Visual Artists’ Rights Act?

Nicholas O’Donnell already went through the validity of a VARA claim at length. I’m going to draw from him here, but add background, as his analysis was meant for legal practitioners.

– Was Charging Bull made after VARA’s trigger date?

No, it was made prior and is likely ineligible for protection. But, as O’Donnell points out, “if di Modica had never transferred ownership of the sculpture since VARA was passed,” then VARA might apply. Di Modica has tried to sell the sculpture (in 1993 and 2004), but with no known success, so Charging Bull might well be eligible.

– Is Charging Bull the right kind of artwork?

VARA doesn’t cover all artworks, but it does cover sculptures. Definitely covered.

– Is Arturo Di Modica an artist of recognized stature?

Probably. Lesser-known artists have been recognized. Let’s give him the benefit of the doubt.

– What right is at issue?

Among other things, VARA extends the “right to prevent distortion, mutilation, or modification that would prejudice the author’s honor or reputation.”

Look, I can see why he’s upset – Fearless Girl changes the reading of Charging Bull – but VARA isn’t an option. As Post said, ‘not every wrong has a remedy,’ and I don’t believe that VARA applies here. First, no court has read “distortion, mutilation, or modification” to include additions to the artwork or its environment, at least not in the sense Di Modica is claiming. Instead most cases are about the subtraction of a sculpture from its environment, or addition of improper elements in conservation attempts. This is a case about destruction-as-addition. As a mental puzzle, it’s terribly interesting: Does putting artwork B next to artwork A constitute a “distortion, mutilation, or modification” that would “prejudice the author’s honor or reputation”?

VARA doesn’t speak to this issue, as the statute offers no guidance on destruction-by-addition. Additionally, in the past, courts have ruled that VARA excludes that which it does not explicitly protect. Courts seem especially inclined to take this approach when VARA would create impractical situations. For example, the First and Seventh Circuits have ruled that site-specific artworks are not protected by VARA, and moving a site-specific work does not constitute a “distortion, mutilation, or modification” under VARA. Importantly, these courts acknowledged that moving a site-specific work actually does distort, mutilate, and modify such a work – but VARA is of no help. Not every harm has a remedy.

Practically, such a reading of VARA would be a disaster. Think about it for a minute. If (a) the addition of a second artwork in the vicinity of a first, or (b) the change in meaning produced by the juxtaposition of a second artwork against a first could constitute a “distortion, mutilation, or modification,” then artists would have an unreasonable measure of control over the display of their works. Artists could demand that museums rehang exhibitions, or that auction houses change their lot orders, or that sculpture parks change their layouts, or that newspapers request permission for article layouts. Biennials, temporary exhibitions, permanent collections, and the entire art press could be subject to artists’ preferred interpretations of their work.

Conclusion: No claim here.

 

[ Non-legal arguments ]

 

(1) “It’s a work of appropriation art and that’s theft.”

Glad you noticed that it’s a work of appropriation art! That said, it’s not theft. Appropriation art doesn’t have to violate copyright to be appropriation art. (Also, infringement and theft are not the same thing, but that’s a discussion for another post.) My preferred definition for appropriation is: “artistic practices based on the staging of a preexisting work or product.”[1] Let’s stop here for a moment and recognize how interesting Visbal’s work is. To create this staging, most artists make a copy, or otherwise reproduce a prior work. The relation that Visbal established between Charging Bull and Fearless Girl required no infringement or fair use, yet still achieved the subversive effect of an appropriation. Even if you don’t support Visbal’s work as public art or a feminist statement, that is conceptually advanced and deserves props.

(2) “He has a point.” “He doesn’t have a point.”

Greg Fallis’ blog post on the subject got a lot of play in my social media feeds this week, largely due to this assertion:

A global investment firm has used a global advertising firm to create a faux work of guerrilla art to subvert and change the meaning of his actual work of guerrilla art. That would piss off any artist.

Yes! That is absolutely true! Fallis’ argument is powerful because he discusses Di Monica’s non-legal arguments without recourse to the language of copyright, trademark, or moral rights. He clarified what is actually at issue for Di Modica.

But here’s the thing: Di Modica’s work isn’t really activist guerrilla art any more, if it ever was. (I have a hard time applying those labels to a work of art that so blatantly supports mainstream American capitalist values, even if it was dropped on the sidewalk in the dead of night.) Over the last twenty-seven years, its meaning has changed.

After reading Fallis’ post, Caroline CriadoPerez was “tempted at this point to tell everyone making this facile point to go and read Barthes’ The Death of the Author but that’s the kind of thing a wanker would do and I, madam, am no wanker.”

I’m happy to be a giant wanker.

In “The Death of the Author” (1968), French theorist Roland Barthes explained that an author is better understood as a historical construct than an actual person with singular control over the meaning of a text that he or she produces. He argued that giving a text an author closes its opportunities for signification, advocated for “the removal of the Author,” and redefined the role of the critic, who, as the reader of the work, supplies its meaning. Barthes’ assignment of responsibility for interpretation is zero-sum: “The birth of the reader must be at the cost of the death of the Author.”

While I find Barthes’ final assertion too zero-sum (it’s OK, Foucault felt that way, too), curator Helen Molesworth’s re-interpretation sits right:

“Barthes argued that the artist’s intentions number as one among many sources of meaning, emerging in a dialogic relation with the viewer and contingent on the shifting historical, institutional, and economic contexts of both the object and the viewer.”[2]

The artist makes a meaning; the patron makes a meaning; the viewer makes a meaning; the next viewer makes a meaning, too. No one person controls the meaning of either Charging Bull or Fearless Girl.

Thus, I understand that Di Modica has a sentimental point, but his desire to control the reception of his work isn’t supported by legal or critical understandings of the production of meaning.

So sorry, Greg. He seriously doesn’t have a (valid) point.

(3) “It’s corporate, man.”

Yes, Fearless Girl was commissioned by a corporation. But…

(a) If you’re going to get upset about that, then you might as well get upset about Botticelli’s paintings (his patrons, the Medici, were definitely Florence’s 1%ers), and Damien Hirst’s early work (Saatchi fronted the cash), and pretty much anything hanging in a museum, since these institutions often accept artworks from the humans who run these corporations and buy artworks with money donated by corporations and CEOs. It feels icky typing this, but sadly, without bankers, we don’t have art.

(b) Also, the commodity/art line is not so clear as we might wish it to be. Fallis repeats the fallacy that an art object must be commodity or object:

She’s an example of how commercialization can take something important and meaningful — something about which everybody should agree — and shit all over it by turning it into a commodity.

Sorry again Greg, but an artwork can be both a commodity and an art object. At the risk of being a wanker again, read Lewis Hyde’s The Gift and Boris Groys’ Art Powerboth of which can help if this duality leaves you perplexed.

(c) Just because Fearless Girl started out as an advertisement doesn’t mean it must remain a corporate shill. As explained above, the statue already has multiple, multivalent meanings, which will multiply and change over time.

Finally, (d) it’s simply disingenuous for Di Modica to claim that Fearless Girl “commercializes” Charging Bull when he decided to slap the statue’s image on preserved meats and chocolate. He crossed the line of commercialization on his own a long time ago.

(4) “This isn’t feminist.”

(a) Is Fearless Girl false feminism?

Maybe. Fearless Girl began her tenure in the world as a corporate advertisement. Per Christine Emba, “The point of “Fearless Girl” was to advertise a State Street initiative pushing companies to include more women on their boards.” And the SHE tag (since removed) took away from a more philosophical reading. (Fallis called attention to its identity as a NASDAQ ticker symbol, a commendable aspect of his post.)

I’m the kind of feminist who believes in Total Systemic Overhaul, not a few more Lady Seats on few more corporate boards. I don’t support the “gestural feminism” that Ginia Bellafante identifies with Sheryl Sandberg and Ivanka Trump. (Need some clarification? “I choose my choice” is a meaningless maxim. Not every choice is a feminist choice.) Fearless Girl is unquestionably a work of gestural feminism with little real feminism behind it.

On the other hand, many artists have accepted corporate sponsorship. (Alexander Calder! Andy Warhol! Olafur Eliasson!) Some of these efforts have grown into meaningful social statements over time. I was/am the target audience for Fearless Girl. I grew up in NYC, my parents’ offices were in sight of Bowling Green, and I went to preschool at a church down the road. As a little girl, I would have absolutely been inspired by the statue and not cared a bit where it came from. Today, I have a four year-old daughter who can define patriarchy, and I work hard to resist the bullshit messages that society already throws at her. As an adult art historian, I originally read Fearless Girl as a symbol of the grassroots future feminist movement that I’m working to develop in my heart, home, and community, which will one day stand up to the selfishness, aggression, destruction, horror, and inequity perpetuated by American twenty-first century capitalism. (For such a nasty woman, I can be really sentimental.)

(b) Would removal be a statement of patriarchal oppression?

Whether Di Modica intends such or not, the symbolism here becomes ugly fast. Di Modica is an older male artist trying to efface the creative statement of a younger female artist. By demanding that Visbal and her patrons remove the work, Di Modica is mandating that his interpretation dominate every other interpretation. This is censorship. Censorship by one artist of another artist isn’t activist, guerrilla, or anti-corporate. When a old guy tries censor a young woman’s challenge to his interpretation of the status quo, and this effort is sanctioned by popular opinion and the powers-that-be, that’s pretty much “a system of society or government controlled by men.” (Thankfully, this isn’t happening.)

ULTIMATELY: If the juxtaposition of Fearless Girl and Charging Bull bothers Di Modica so much, why doesn’t he move his own damn sculpture? Bowling Green isn’t its original home – it was originally placed in front of the New York Stock Exchange – so why must Bowling Green be its perpetual home? Furthermore, if State Street and McCann truly want Fearless Girl to become a feminist icon, she needs to stand up to a range of patriarchal symbols. Move the bull and give her a new opponent. Real girls have many adversaries.

Photograph: Federica Valabrega

[1] Nicolas Bourriaud, The Radicant (New York: Lukas and Sternberg, 2010), 167.

[2] Helen Molesworth, “This Will Have Been: Art, Love & Politics in the 1980s” in This Will Have Been: Art, Love & Politics in the 1980s (Chicago/New Haven: Museum of Contemporary Art Chicago/Yale University Press, 2012), 22.

1 comment on “Seriously, Let’s Clear This Up”

  1. Really surprised there was no common law claim of misappropriation in the letter. That always seemed to be the catch-all for when people angered you, but you didn’t have a clear cause of action.

Leave a Reply

Your email address will not be published. Required fields are marked *