No, The 'Charging Bull' Artist Can’t Force Anyone To Take Down 'Fearless Girl'

Won't someone think of the white guys that this woman is hurting?

GettyImages-649561548Sculptor Arturo Di Modica is peeved that his prized work, the Charging Bull, is now blighted by the image of a small female standing up against the Minotaur of Laissez Faire. Fearless Girl, a sculpture by Kristen Visbal intended to speak to the dearth of female executives, was placed across from the Bull on the eve of International Women’s Day, and the Bull’s sculptor is crying foul, because in these troubled times, won’t someone think of the white males?

And yet, no matter how ridiculous this sounds, some people are buying into this guy’s complaint.

In a press conference yesterday, attorney Norman Siegel, the former Executive Director of the New York Civil Liberties Union and currently a partner at Siegel Teitelbaum & Evans, argued passionately that New York City infringed his client’s work by allowing Fearless Girl to remain right across from his Bull. The crux of the argument is that Fearless Girl changes the “creative dynamic” of the original work, violating the artist’s rights.

What is a “creative dynamic,” you might ask? Aside from insufferable artistic pretension, the argument is that the new statue changes the very meaning of his original work from a celebration to something menacing.

It’s hard to say Fearless Girl undermines the Bull since the whole point of the statue isn’t anti-capitalist as much as a tribute to the “lean in” movement. But let’s spin this theory out, law school exam style, by taking a more confrontational hypothetical . For example, what if an artist installed a statue of Elizabeth Warren dressed as a matador about to plunge swords into the Bull? That would severely alter the point of the sculpture that Di Modica dumped — totally illegally, mind you — on Wall Street after the 1987 crash. Di Modica intended the statue to convey the resiliency of the market even in its darkest days, and New Yorkers prevailed upon the City to keep this obvious work of trespass around so future generations of tourists can take pictures of its balls as if they’re the first people to ever think of that.

They’re not.

Still, some people think Di Modica has a point, like Christina Cauterucci of Slate’s XX Factor — the publication’s ostensibly feminist imprint — who argues that Fearless Girl should go:

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Reverse that equation, and you get a good case for Di Modica’s claims. Before Fearless Girl came on the scene, the bull was an encouraging representation of a booming economy. Now, charging toward a tiny human, it’s a stand-in for the gendered forces that work against women’s success in the workplace. This isn’t the same kind of contextual shift that might result from a curator’s juxtaposition of two works; the girl is derivative. Di Modica meant his bull to stand alone—now, it’s as if Visbal and New York City have made a solo piece a diptych without his consent.

Oooooh. Feel the scintillating burn of this hot take! “What if… I say that the most prominent symbol of womanhood in 2017 deserves to be torn down based on, well, not any legal basis at all? And maybe extra points for positing that a white guy so wrapped up in his own privilege that he illegally put a statue no one wanted on the street and got rewarded for it should dictate what others can and cannot do with their own art?” You don’t clutter Slate’s pages with cold takes!

Unfortunately for this argument, there’s still a First Amendment out there, and it may not protect as much these days as it used to, but it’s still there if you want to donate millions of dollars to shadowy SuperPACs or make an artistic statement.

NYU Law professor Christopher Sprigman, an expert in intellectual property law, notes that copyright protects an artist’s work, not how people conceive of their work. “God help any museum if this were the law,” he told me yesterday. “Imagine museums placing artwork and painter A asserting an intellectual property right not to be placed next to painter B.” Certainly some artists may have those reservations and they can put riders on their agreement to loan the work, but that’s a contractual matter, not an intellectual property matter.

Cauterucci raised — and quickly dispelled — another legal wrinkle:

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Though it’s rarely been invoked, the Visual Artists Rights Act of 1990 protects artists from having their works destroyed, moved, or altered under specific circumstances. Di Modica may have been able to argue a violation of his copyright under VARA if he could convince a judge that the city modified his work or damaged its integrity in a way that harmed his reputation, which the city almost certainly did. But the law doesn’t apply to artworks created before the law’s enactment, meaning Di Modica will have to find another legal basis if he decides to sue the city.

“[W]hich the city almost certainly did”? The hell are you talking about? Nothing about Fearless Girl diminishes the Bull or undermines Di Modica’s reputation as an artist. Moreover, this proposed reading of VARA would obliterate parody altogether — if it harms an artist’s reputation to disagree with the thrust of a work, we’re all screwed. Throw in that the caselaw surrounding VARA is up in the air on the scope of protection afforded “site-specific” works, and that the Bull has already been moved from the artist’s original, unpermitted, intended location, and VARA is even more ridiculous.

Seriously, Di Modica broke the law to put this up because he felt the world deserved to have his work foisted upon it, and now he has the gall to complain about the placement of someone else’s statue.

Now those are some big balls.

The Charging Bull Sculptor Is Right. Fearless Girl Should Go. [Slate]
Wall Street bull sculptor says ‘Fearless Girl’ statue violates his rights [Boston Globe]


HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

Photo via Getty Images