The confrontation between the Fearless Girl and Raging Bull statues has become an iconic image symbolizing various socio-economic dynamics. Arturo Di Modica's Raging Bull, a symbol of American resilience and economic strength, was placed in the Financial District of New York City in 1989 without prior permission. It was meant to inspire and represent the determination of the American people after the 1986 stock market crash. Nearly three decades later, in 2017, Kristen Visbal's Fearless Girl statue appeared, commissioned by an asset management company to promote gender diversity in corporate leadership. The sight of the diminutive, defiant girl facing down the massive bull quickly captured public imagination, but it also sparked significant controversy regarding the moral rights of the original artist, Di Modica.
Moral rights in intellectual property law refer to the personal rights of creators to protect the integrity and attribution of their work, distinct from economic rights, which concern the financial exploitation of the work. These rights are particularly strong in civil law jurisdictions, such as France and Germany, where they are deeply embedded in the legal framework. However, in common law countries like the United States, moral rights have historically received less attention, and their legal protections are more limited. The case of Raging Bull and Fearless Girl highlights the tension between these two approaches and underscores the significance of moral rights in maintaining an artist’s personal connection to their work.
The Story Behind Raging Bull and Fearless Girl
Arturo Di Modica’s Raging Bull sculpture has a fascinating and storied history. Created in the wake of the 1986 stock market crash, Di Modica sculpted the three-tonne bronze bull in his Manhattan studio over two years. On December 15, 1989, in a dramatic act of guerrilla art, Di Modica loaded the sculpture onto a truck and deposited it in front of the New York Stock Exchange without prior permission. His intention was to create a symbol of American resilience and strength in the face of economic adversity. The public quickly embraced the sculpture, and after initial resistance from authorities, it found a permanent home at Bowling Green in the Financial District, where it became an iconic tourist attraction and a beloved symbol of Wall Street’s bullish optimism.
Fast forward to 2017, and the landscape of Wall Street was poised for another dramatic transformation. Kristen Visbal’s Fearless Girl statue was commissioned by the asset management company State Street Global Advisors. The 110-kilogram bronze statue was installed just before International Women’s Day in a publicity stunt aimed at promoting a fund that invested in companies with higher-than-average female representation on their boards. The statue, depicting a young girl standing defiantly with hands on hips, was placed directly in front of Di Modica’s Raging Bull. The juxtaposition of the fearless girl staring down the powerful bull was striking and symbolic, instantly capturing public imagination and becoming a viral sensation on social media. However, this placement also ignited a significant controversy.
Arturo Di Modica was incensed by the addition of Fearless Girl in front of his work, seeing it as an affront to the integrity of his original creation. He and his lawyers argued that Fearless Girl altered the perception and meaning of Raging Bull, transforming it from a symbol of strength and resilience into one of male aggression and intimidation. Di Modica demanded that Fearless Girl be removed, deeming it an “advertising trick” that impugned his work. Despite the artist's objections, the public and media largely celebrated the new installation, and Fearless Girl remained in place. This controversy brought to light important questions about moral rights in copyright law, particularly concerning the right of an artist to protect the integrity and intended message of their work.
Understanding Moral Rights in Intellectual Property
Moral rights in intellectual property represent a key aspect of copyright law, distinct from the economic rights typically associated with creative works. While economic rights allow creators to earn money from their works through licensing, selling, and other forms of commercial exploitation, moral rights protect the personal and reputational interests of the author. These rights are inherently personal and remain with the creator even if the economic rights are transferred to another party.
The core components of moral rights include the right of attribution, the right to object to derogatory treatment, and the right to decide how and when a work is published. The right of attribution ensures that creators are properly recognized as the authors of their works. This right allows creators to claim authorship and to prevent others from falsely attributing their work to someone else. The right to object to derogatory treatment, also known as the right of integrity, empowers creators to oppose any distortion, mutilation, or modification of their work that would harm their honor or reputation. This protection is critical in preserving the original message and intent of the work. Lastly, the right to decide how and when a work is published allows creators to control the initial public exposure of their creation, ensuring that it is presented in a manner that aligns with their vision.
The concept of moral rights originated in the civil law traditions of France and Germany, reflecting a deep cultural respect for the personal connection between an artist and their work. These rights were first codified in French law and later in German law, recognizing that creative works are extensions of the creator’s personality. Over time, moral rights have been incorporated into various international agreements, such as the Berne Convention for the Protection of Literary and Artistic Works, which mandates signatory countries to protect these rights. However, the extent and enforcement of moral rights vary significantly across jurisdictions. While civil law countries typically offer strong protection for moral rights, common law countries, including the United States, have been slower to adopt such measures, often limiting moral rights to specific types of works and allowing them to be waived under certain conditions. This divergence in legal approaches underscores the complex landscape of moral rights in the realm of intellectual property.
The legal framework for moral rights in intellectual property is shaped by various international agreements and national laws, reflecting differing approaches and levels of protection. One of the foundational international agreements addressing moral rights is the Berne Convention for the Protection of Literary and Artistic Works. Article 6bis of the Berne Convention requires signatory countries to grant authors two primary moral rights: the right to claim authorship of a work (right of attribution) and the right to object to any distortion, mutilation, or modification of a work that would be prejudicial to the author's honor or reputation (right of integrity). These rights are independent of the author's economic rights and remain with the author even if they transfer their economic rights to another party.
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), administered by the World Trade Organization (WTO), also recognizes the importance of moral rights by incorporating the substantive provisions of the Berne Convention. However, TRIPS does not mandate the enforcement of Article 6bis, leading to variations in the implementation of moral rights across different jurisdictions. This flexibility allows member states to tailor their moral rights protections based on their legal traditions and cultural values.
The implementation and enforcement of moral rights differ significantly between civil law and common law countries. Civil law countries, such as France and Germany, typically provide robust protection for moral rights, recognizing them as inalienable personal rights that cannot be waived or transferred. In these jurisdictions, moral rights are deeply rooted in the cultural and legal recognition of the personal connection between creators and their works. Conversely, common law countries, including the United States, have historically been more reluctant to embrace comprehensive moral rights protections. Instead, these countries often allow for the waiver of moral rights through contractual agreements, reflecting a more pragmatic approach that prioritizes commercial flexibility.
In the United States, moral rights are primarily governed by the Visual Artists Rights Act (VARA) of 1990. VARA grants limited moral rights to authors of visual works, including paintings, drawings, prints, sculptures, and still photographic images produced for exhibition. The act provides artists with the right to claim authorship, prevent the use of their name on works they did not create, and object to the intentional distortion, mutilation, or modification of their works that would harm their honor or reputation. However, VARA's scope is narrow, excluding many types of creative works such as films, literature, and architecture. Additionally, the rights conferred by VARA can be waived if the artist explicitly agrees to do so in writing. This limitation highlights the ongoing debate in the United States about the balance between protecting creators' personal interests and maintaining commercial flexibility.
The Impact of Fearless Girl on Raging Bull: A Moral Rights Perspective
The impact of the Fearless Girl statue on Arturo Di Modica's Raging Bull from a moral rights perspective brings to light several important issues in intellectual property law. Di Modica, the sculptor of Raging Bull, claimed that the installation of Fearless Girl directly in front of his work infringed upon his moral rights by altering the intended message and integrity of his artwork. Raging Bull was conceived as a symbol of strength and resilience in the face of adversity, particularly reflecting the American spirit after the Wall Street crash of 1986. The juxtaposition of Fearless Girl, with its message of female empowerment and defiance, transformed the context and interpretation of Di Modica's bull, which he argued undermined his original artistic intent.
From Di Modica’s perspective, the placement of Fearless Girl constituted a derogatory treatment of his work. He asserted that this new installation distorted the perception of Raging Bull, turning it from a standalone piece into part of a narrative that was not of his making. This raises the question of whether his moral right to the integrity of his work was violated. In many jurisdictions, moral rights protect creators from alterations or uses of their work that could harm their reputation or the work's intended message. Di Modica's lawyers argued that the Fearless Girl installation did exactly this, as it imposed a new meaning on Raging Bull that was contrary to his artistic vision.
Public and legal opinions on this issue have been divided. Supporters of Fearless Girl argue that public art, especially when placed in a shared space, should be open to new interpretations and interactions. They contend that the placement of Fearless Girl does not physically alter Raging Bull and that the dialogue between the two sculptures enriches the public space. Critics of this view, however, emphasize the importance of respecting the original artist's moral rights and maintaining the integrity of their work. Legally, the case is complicated by the fact that moral rights in the United States, under the Visual Artists Rights Act (VARA), are more limited compared to those in some other countries. VARA's protections are typically confined to preventing destruction or mutilation of the work, rather than addressing broader contextual issues.
In examining this controversy, it is clear that the debate over moral rights is as much about cultural values as it is about legal principles. While Di Modica's claims highlight the need to protect artists' intentions and reputations, the widespread public support for Fearless Girl underscores a growing acceptance of dynamic and evolving interpretations of public art. This case serves as a reminder of the delicate balance that must be struck between protecting artists' moral rights and fostering a vibrant, interactive public art environment.
Ricardo Zúñiga
Attorney at Law
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