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Case Disclosed is a blog written by students, supervising attorneys, directors, alumni, and friends of the Media Freedom & Information Access Clinic.

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Charging Bull and Fearless Girl: Conflict between Artists’ Rights and First Amendment Freedoms

June 18, 2018

When Kristen Visbel’s “Fearless Girl” was installed at Bowling Green in Manhattan’s Financial District in March of 2017, the statue was hailed by many as an iconic representation of female empowerment. Placed in the path of Wall Street’s famous “Charging Bull,” “Fearless Girl” stares down the massive animal with shoulders back and pigtails flying. Now, more than a year after her installation, “Fearless Girl” continues to draw crowds of tourists, and may soon be moved—along with her charging nemesis—to a location more suited to her flocks of admirers.

As with many works of public art, it wasn’t long before “Fearless Girl” began to draw negative reactions as well as praise. Critics cried ‘hypocrisy’ at the work’s commissioner, State Street Global Advisors, which recently reached a settlement on claims of discrimination against its own female employees. But aside from issues with the statue’s feminist credentials, one objector to “Fearless Girl” raises significant questions about the interaction between the First Amendment and the rights of artists in America. Arturo di Modica, sculptor of “Charging Bull,” says that “Fearless Girl” has violated his trademark, copyright, and moral rights.

Moral rights, or “droit moral,” are the rights that an artist has to control the fate and meaning of her creation—even after its sale. Although moral rights are more widely invoked in Europe than in the United States, the Visual Artist’s Rights Act of 1990 (VARA) officially recognized the rights of certain artists in America to claim authorship of their works, to disclaim authorship of distorted or misattributed works, and most significantly, “to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation.” 17 U.S.C. § 106A (2000). Although VARA is subject to significant limitations in scope, di Modica’s claim—that “Fearless Girl” has intentionally distorted the original meaning of his sculpture, turning it into a symbol of corporate misogyny rather than a celebration of American resilience—is plausible under the statute. But can di Modica, or any artist, really prevent another artist from engaging with his work in a public space by creating art of their own?

The answer is likely a “no.” Although di Modica never followed through with his threatened lawsuit, a moral rights claim against Kristen Vibel and her “Fearless Girl” would face significant hurdles. Even if di Modica could demonstrate that “Charging Bull” was eligible for protection under VARA, he would have to contend with Vibel’s rights as an artist under the First Amendment. A ruling in di Modica’s favor would contradict decades of Supreme Court precedent identifying artistic expression as “unquestionably shielded” by the First Amendment.1  Courts have carved out various exceptions to this stance over the years—including competing rights of privacy and publicity2—but remain generally hostile to the expansion of artists’ moral rights.3  Moreover, the audacity of di Modica’s claim prompts a classic “slippery slope” defense: if artists are forbidden under VARA from displaying their art in a manner that conceivably alters the meaning of nearby works, where does the law stop? Art museums and galleries regularly engage in the curation of exhibits designed to place artworks in dialogue—and in contrast—with one another. Architects and city planners often alter the surroundings of public artworks, changing lighting conditions, background scenery, and more.

Whether or not “Fearless Girl” and “Charging Bull” ever confront one another in court, their standoff mirrors an overarching conflict between the expansion of artists’ moral rights in America and the First Amendment. Traditionally considered one of the exemplary groups protected by the First Amendment, American artists may find themselves facing a dilemma: In advocating for the right to protect and preserve their work, they can undercut the freedom of expression that allows that work to be produced and displayed. The ultimate reach of VARA is still up for debate, and the question is one that lawyers and artists alike are sure to follow with interest.

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1. E.g., Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, Inc., 515 U.S. 557, 569 (1995) (citing the “unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberywocky verse of Lewis Carroll”).
 

2. See, e.g., Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001);
Hoepker v. Kruger, 200 F. Supp. 2d 340 (S.D.N.Y. 2002).
 

3. See, e.g.Carter v. Helmsley-Spear, Inc., 71 F.3d 77 (2d Cir. 1996).