The Fearless Girl statue was installed earlier this year as a guerrilla marketing stunt, but it has since become a tourist attraction and, only this week, the focus of a copyright lawsuit over artists’ moral rights.
A number of sources reported last night and this morning that Arturo Di Modica, the creator of the Raging Bull statue, has threatened to sue over the placement of the Girl statue. (To be clear, so far only USA Today confirmed that he has made that threat in a press conference, and no, it’s not clear who he is suing.)
Di Modica might bring an action for copyright infringement. But what chances of success would he have since no economic rights seem at stake in this case?What Di Modica might have in mind is an action based on moral rights infringement, notably the right of integrity.
As far as the US is concerned, moral rights protection is currently [the US Copyright Office is undertaking a public study on moral rights] narrow, especially if compared to droit d’auteurjurisdictions. Introduced in 1990 through the Visual Artists Rights Act, §106A of the US Copyright Act is arguably the only moral right provision under US copyright law, and its scope is limited. While acknowledging the moral rights of attribution and integrity, this provision only applies to ‘works of visual arts’ which are narrowly defined under §101.
Although Di Modica’s sculpture might potentially qualify for protection under §106A, the right of integrity envisaged therein is only actionable in relation to a “distortion, mutilation, or other modification of the work which would be prejudicial” to the honour or reputation of the author. Arguably Fearless Girl and its positioning have not resulted in any derogatory action on or treatment of Charging Bull.
In addition, §106A(c) sets significant exclusions to moral rights protection. Of particular interest here is that “[t]he modification of a work of visual art which is the result of conservation, or of the public presentation [can the addition of Fearless Girl be considered part of the Charging Bull‘s public presentation?], including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification … unless the modification is caused by gross negligence.” (emphasis added)
TechDirt’s commentary isn’t bad, either.
To anyone who adheres to the traditionalist view that copyright is a financial incentive designed to foster the creation of more art, this lawsuit is the source of eye rolls (don’t ask us what we think of moral rights – please!).
Nevertheless, Di Modica has a case. It’s not clear he’s going to win, but as IPKat points out he could sue under US law or Italian law, which has stronger protections of an artist’s moral rights.
image by Anthony Quintano