Bullish on Intellectual Property

Posted on April 14, 2017 By Paula Parisi Law, Trending, What's the Big Idea

Can proximity create copyright infringement? Artist Arturo Di Modica claims it can. The creator of the famous bronze “Charging Bull” that has since 1989 been a visual signifier of Wall Street is demanding that the city of New York  remove an adjoining sculpture he says distorts the meaning of his work. In March, the statue dubbed “Fearless Girl” was added about 20 feet away, giving the appearance that she’s staring down Di Modica’s snorting bovine.

The courageous kid, created by artist Kristen Visbal, was installed for International Women’s Day by ad agency McCann New York. McCann undertook the placement on behalf of client State Street Global Advisors as it continues to promote its year-old SHE fund, encouraging corporations to add more female board directors.

Di Modica claims the addition of this satellite art piece distorts the meaning of his work– intended to convey the unstoppable spirit of the American people after the 1987 stock market crash. The introduction of the young girl, hands-on-hips,  firmly standing her ground against the beast, certainly seems to cast the “Charging Bull” in a more ominously aggressive light. Di Modica says it reduces his creative expression to a publicity stunt.

The publicity part is surely true. “Charging Bull,” which resides near Bowling Green park, at the gateway to Wall Street, immediately became a popular photo op for tourists, and the addition of the “Fearless Girl” has only heightened interest. She was initially only permitted for a one-week stay, extended by popular demand until March 2018. But the Sicilian-born Di Modica, who emigrated to New York in 1973, wants the signorina exiled immediately.

Can it be Di Modica doesn’t want his bull — which has its own website and has a cult following (including at least one odd ritual) — sharing the limelight? “The statue of the girl with her hands defiantly on her hips has become a tourist sensation since she was installed across from the bull” on March 7.

“The placement of the statue of the young girl in opposition to ‘Charging Bull’ has undermined the integrity and modified the ‘Charging Bull,'” Di Modica’s attorney, Normal Siegel of Siegel Teitelbaum & Evans, LLP, told the media at a Wednesday press conference at the firm’s Madison Avenue office. The 11-foot Bull’s once-optimistic message has, by virtue of the pint-sized 4-footer’s presence, “been transformed into a negative force and a threat.” For his part, the soft-spoken Di Modica said the “Girl” and her creators “must find their own place, like I did.” Siegel expressed hope the matter could be settled amicably, but didn’t rule out litigation.

This is a case that would make for a very interesting — perhaps even precedential — argument, or at least it could provide opportunity for a lot of original discussion. Can the addition of an art adjacency in any way “change” the meaning of the original work? And does that open the door for any lender of museum art to dictate terms under which it’s displayed? (Please! Not within 50 yards of that tacky Koons porcelain of Michael Jackson!) To an extent that might already be taking place, albeit somewhat informally.

Art commissioned for public use has it’s own set of rules, that generally stipulate the art will not be lewd or offensive, and the word “enjoyable” has been known to appear. Complicating this debate is the fact that neither work was commissioned for the public. Di Modica invested two years and $300,000 of his own money into the giant bronze, which he has described as “a gift to the people of New York,” to whom it seems to be on some sort of informal semi-permanent loan.

On December 15, 1989, he had the piece installed guerrilla-style, beneath the New York Stock Exchange Christmas tree at 11 Wall Street. Not unlike Di Modica’s reaction to “Fearless Girl,” NYSE brass were horrified, demanding its removal, and the bravura bovine spent a week in police impound before the Parks Department allowed it to be exhibited “on a temporary basis” in to tiny Bowling Green, about a block from the NYSE.

Somewhat ironically, the bull riders are positioning “Fearless Girl” as arriviste when Di Modica’s sculpture was itself originally shunned by the establishment but adored by the people. “The statue of the girl with her hands defiantly on her hips has become a tourist sensation since she was installed across from the bull last month,” writes CNN. But the “Charging Bull” has also enjoyed many a close-up over the years. It’s popularity as a photo opp essentially earned the sculpture its honored resting place.

A free-speech claim in plunking down a 7,000 pound bronze in public was well beyond the realm of legal possibility for Di Modica in 1989. But what about now? The “Bull” having, in effect, homesteaded Bowling Green, is Visbal’s sculpture impeding Di Modica’s expression? It certainly is co-opting it as part of the “Fearless Girl” statement. Is that allowed under intellectual property law?

A comparable recent situation might be the uprising of YouTube creators, protesting the positioning of ads they deemed offensive adjacent to their intellectual property. (YouTube changed its policy to accommodate the concerns). Or maybe TV commercials, or the ads that precede movies in the cinema. But that’s different; the content has a “life” beyond the advertising (i.e., there are presumably other venues in which to view it — episodic content can often be viewed ad-free, and at the very least, the ads change as the programming plays out its life cycle).

With books, those types of liberties are unheard of. No one can excerpt or intrude on an author’s work during its lengthy copyright lifespan without risking a lawsuit. And oddly, in a magazine, it’s hard to imagine a reader’s opinion of editorial content being altered in any way by ad adjacencies. The closest thing would be “advertorial” — advertising posing as creative content, which conceivably diminishes the perception of the publication overall, as well as the individual articles. The solution has been for the American Society of Magazine Editors to recommend as best practice that “sponsored content” be labeled.

So should the “Fearless Girl” be “branded”? Maybe a big “S” on her chest for sponsored? (Or “Super,” depending on how you look at it.) She already in effect is; the plaque at her feet that reads “Know the Power of Women in Leadership. SHE makes a difference.” The “SHE” refers to State Street Global’s gender diverse index fund. Launched in March of 2016, SHE tracks 1,000 large-cap US firms by the ratio of women on the board of directors and in executive positions (senior vp or higher), and has nearly $290 million in managed assets.

A noble effort. As of 2017, US women held 19.9 percent of board seats at S&P 500 companies, according to Catalyst. That’s up a mere one percent since 2015 when the New York Times-fielded a survey. Arguably, “Fearless Girl” is a public service announcement, and as such would be entitled to some accommodation. Twelve months in the “Bull” zone might be it. There can be no doubt but that her worth is heightened by the dialogue that results from proximity to the earlier, established work. Is Visbal entitled to that reflected light? Without di Modica agreeing to confer it? Or is it the City’s to confer?

Perhaps the answer is a periodic, rotating partner for “Charging Bull.” Bowling Green is home to the National Museum of the American Indian, and the spirit of unfettered capitalism charging a symbol of Native American life (even a buffalo)  would say a lot. Trinity Church is there. (“Bull” in a manger?) Consider: equal time for bears.

It’s a quandary. The artists rights of Mr. Modica v. social justice. The “Girl” is a succubus — the attention she draws as a result of placement diminishes that of the bull, relegating it to something like a prop. This slip of a thing is upstaging the testosterone laden giant. Ha! Socially, that is entirely fitting. Women: it’s your turn. But art is sacred, and it trumps gender. So move her, eventually. Maybe transition her, for a time, behind the bull; instead of the bull charging at her, she’s running him off.

New York, public art, sculpture