The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
[Clarification, in response to several comments, added in bold type below]
For the "Not Every Wrong Has a Remedy" file: Nearly 30 years ago, sculptor Arturo Di Modica created the sculpture "Charging Bull," a 3½-ton bronze sculpture standing near Wall Street that has become something of an icon in Lower Manhattan. On March 7, a statue by artist Kristen Visbal, "Fearless Girl," commissioned by State Street Global Advisors and consisting of a small girl with her fists on her hips in apparent defiance of the charging bull, was installed directly opposite the bull.
It's a pretty nice little bit of public art dialogue-creation—the fierce, powerful, masculine, capitalist beast opposed by the determined, plucky, feminine force standing up to it.
Di Modica, however, was not amused or impressed. According to a New York Times story, his lawyers (led by Norman Siegel, who, ironically, is a former executive director of the New York Civil Liberties Union), in a letter to State Street Global, demanded that "Fearless Girl" be removed from the site on the grounds that it …
… had subverted the bull's meaning, which Mr. Di Modica defined as "freedom in the world, peace, strength, power and love." Because of "Fearless Girl," Mr. Siegel said, "'Charging Bull' no longer carries a positive, optimistic message," adding that Mr. Di Modica's work "has been transformed into a negative force and a threat." …
The lawyers accused State Street Global of commissioning "Fearless Girl" as a site-specific work that was conceived with "Charging Bull" in mind. They said that they had improperly commercialized Mr. Di Modica's statue in violation of its copyright. They asserted that the city had violated his legal rights by issuing permits allowing the four-foot-tall "Fearless Girl" to stand across from the 11-foot bronze bull without Mr. Di Modica's permission. [Italics added]
Hmm. A "violation of its copyright"? In a word—no. Suppose it's true: that "Fearless Girl" was indeed commissioned as a "site-specific work that was conceived with 'Charging Bull' in mind"—i.e., that Visbal designed her sculpture specifically and intentionally to "play off" of "Charging Bull," to respond to the messages and meanings incorporated in Di Modica's statue and to make them part of the message and the meaning of hers.
That's just not an infringement of Di Modica's copyright*** in "Charging Bull." That's not how copyright law works. 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.
*** Incidentally, the Times story notes that Di Modica "created the sculpture 'Charging Bull' nearly 30 years ago [and] copyrighted and trademarked [it]." Ouch. This is one of my pet peeves: It is improper to use copyright as a verb in this way (as in "He copyrighted the sculpture," or "You should copyright that song," or the like), and it sows much confusion about how copyrights (and trademarks, too—though that's the subject for another day) actually work to use the word that way.
It used to make sense to talk about "copyrighting" a work of art; prior to the enactment of the 1976 Copyright Act, you had no copyright rights in a work that you created until you did something, namely (a) "publishing" the work, and (b) registering it with the Copyright Office. To "copyright" a work, then, meant doing these things, at which point your work was "copyrighted" (i.e., protected by copyright).
But that all changed in the 1976 Act; works are "copyrighted" (i.e., protected by copyright) the moment they are created. You don't have to do anything to get that protection; it's inherent, the law now says, in the work itself, and the copyright rights exist from the moment of the work's creation. It is thus nonsensical to say that Di Modica created the sculpture and "copyrighted" it; it's already "copyrighted," as soon as it had been created. Using copyright as a verb obscures that very fundamental copyright principle, making people think that there's something you have to do, steps you have to take, in order to obtain copyright, when in fact there are none.
And 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. Several commenters suggested that Visbal did indeed incorporate parts of his design into hers, insofar as her Fearless Girl was (by assumption) conceived to be facing down the charging bull. As one reader put it: "Her design, from an artistic standpoint, clearly and intentionally includes the bull. As Visbal explains, the point of her design is that the girl is blocking the bull, so the bull is, by definition, part of the design." I could have been clearer: she didn't incorporate any of Di Modica's copyright-protected design into hers. A charging bull may be part of Visbal's conception of the work—but Di Modica doesn't have copyright protection in a charging bull, he only has copyright protection in his particular design of a charging bull—the tilt of the bull's head, the placement of its legs, the length and curvature of its horns, etc. The mere idea of a bull charging isn't part of his protected design—so even if she had "charging bull" as part of her design, she didn't incorporate Di Modica's "Charging Bull" into her work.
She may well have used the meaning, or the message, of his work in her work; but he doesn't have any ownership rights in the meaning or the message of his work. He has rights only in its design. So even if Visbal intentionally (and successfully) changed that meaning or message, Di Modica, as an artist, may feel that this is deeply objectionable, but there's nothing in copyright law that allows him to stop her from doing that.
Alert copyright nerds might be wondering whether Di Modica can obtain any remedy from the Visual Artists Rights Act of 1990 (VARA), which gave certain "works of visual art" additional rights of "attribution and integrity" over and above the ordinary protections against reproduction, distribution and display. The short answer here, too, is almost certainly no. To begin with, Di Modica's work, which was created in 1989, only obtains protection under the 1990 provisions if he had not transferred title to the sculpture itself prior to 1990—as he may well have done. But more to the point, the statute protects only against "any intentional distortion, mutilation, or other modification of the work" (and only if the distortion, mutilation or modification "would be prejudicial to [the artist's] honor or reputation"), and it would seem impossible to argue that Visbal distorted or mutilated or modified the work in any way.
[H/t to Victor Ghidu and Allison Hoots, for the pointer to the story]