Lower Manhattan in New York City. Credit: Shutterstock

Nearly two years ago, the northern corner of Bowling Green Park in downtown Manhattan was transformed into a powerful scene as a young, “Fearless Girl” stood boldly in the path of a massive, “Charging Bull.” Since then, crowds of onlookers have stopped to witness these two unflinching figures face one another down, each standing their ground along the narrow concrete divide situated at the south end of Broadway. Recently, however, the tension between these two apparent rivals has been momentarily alleviated, as the miniature matador has moved on. Now the only question remaining is: will the Bull give chase, or will it remain in place? The answer lies in the laws governing the moral rights of the artist who positioned it there to begin with.

The installation of Kristen Visbal's now-famous “Fearless Girl” statue in the heart of the financial district of New York City has been the source of controversy among members of the artistic, business and legal communities. The piece was originally placed there on the eve of International Women's Day in 2017 by financial services company State Street Global Advisors as part of a companywide initiative to raise awareness about the importance of gender diversity in corporate leadership, and to encourage companies to place more women on their boards. However, despite the seemingly noble and praise-worthy purpose underlying the statue's installation, not everyone was pleased with the decision.

Roughly one month after “Fearless Girl” had her feet planted squarely in front of Arturo Di Modica's “Charging Bull,” the Italian-born sculptor issued a public statement decrying State Street's placement of their statue as an infringement of his rights as an artist. In his statement, Di Modica asserted that his iconic statue, originally erected in the wake of the stock market crash of 1987, was intended to serve as a symbol of the strength and power of the American people. However, upon the arrival of “Fearless Girl,” he claimed that the placement of the four-foot-tall image of the young girl in juxtaposition with the 11-foot-tall, three-ton bronze bull transformed the meaning and context of his own work from a message of positive strength into a negative force and a threat. Di Modica's attorneys claimed that this alleged distortion of the original message behind “Charging Bull” constituted a violation of their client's moral rights to the artistic integrity of his work, and issued a letter to Mayor Bill de Blasio and the city of New York asking them to remove “Fearless Girl” from the bull's path.

Yet in spite of Di Modica's demands, “Fearless Girl” has remained fixed to the spot in Bowling Green Park, generating widespread support and popularity among tourists and social media followers for the tenacity and the ideal of feminist equality that she portrayed. That is, until recently. On Wednesday, Nov. 28, “Fearless Girl” was removed from her post to be repositioned in front of the New York Stock Exchange. The move was prompted, in part, by a desire to reduce overcrowding along the narrow median that previously served as the staging ground for the art installation. A tweet from the mayor's press secretary, posted in April 2018 when the relocation was first announced, revealed that the “Charging Bull” statue would also be moving on to greener pastures—potentially within close proximity to ”Fearless Girl”'s new home on Wall Street. The proposed reunion of these two bronze rivals brings up an interesting new question with regard to the issue of artist's moral rights originally raised by Di Modica when the pair were first introduced: can the city of New York intentionally herd the “Charging Bull” to place it back into juxtaposition with the “Fearless Girl” against the artist's wishes?

Under the Visual Artist Rights Act of 1990 (VARA), authors of works of visual art have the right to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, 17 U.S.C. Section 106A(a)(3)(A). Also known as the “right of integrity,” this provision of the U.S. Copyright Act is a limited implementation of the French concept of droit moral, or “moral rights,” which are intended to protect the relationship between an artist and his or her created work. Under U.S. law, moral rights are vested solely with the author of a work of visual art, and endure for the life of the author, regardless of whether he or she retains ownership of the copyright in the work. 17 U.S.C. Section 106A(b); see also Section 106A(d)(1) (noting the duration of artists moral rights). However, the moral rights of artists are far from absolute, and are subject to several key exceptions. With regard to the right of integrity, any modification of a work of visual art which is the result of conservation, or of the public presentation, including lighting and placement, of the work will not be considered a destruction, distortion, mutilation, or other modification unless it is caused by gross negligence, 17 U.S.C. Section 106A(c)(2) (emphasis added).

Here, it is unlikely that Di Modica would be able to stop city officials from herding his “Charging Bull” away from its historic Bowling Green home. As noted in the exceptions to VARA moral rights, modifications of a work resulting from the public presentation, including lighting or placement, of the work are generally not considered an infringement of the artist's right to integrity, unless the artist can demonstrate gross negligence. In Di Modica's case, it is not apparent that the “Charging Bull” from its current location would result in a grossly negligent modification or distortion of the work's intended meaning or significance as asserted by the sculptor. Additionally, by emphasizing the need for increased public access to the work in a space that is further removed from major roadways, the city appears to have identified and articulated a compelling reason to relocate the statue.

However, while Di Modica may not be able to stop the relocation of “Charging Bull” altogether, he may be able to at least prevent the city from displaying the sculpture anywhere near its fearless female nemesis. Contrary to his prior objections over State Street's placement of “Fearless Girl”—which some argue implicated both issues of artist moral rights and first amendment freedom of expression—any dispute over the future placement of “Charging Bull” would predominantly be centered around an interpretation of Di Modica's right to integrity under the VARA. Furthermore, given the city's acute awareness of the artist's numerous objections to the apparent distortion of his artwork through the juxtaposition of “Charging Bull” and “Fearless Girl” in the past, it is likely that any decision to disregard those objections in choosing the new location for the statue could very well be deemed grossly negligent. As such, Di Modica would ultimately have a much stronger case against the relocation of his own statue this time around than he otherwise might have had against the initial placement of “Fearless Girl” back in 2017.

While admittedly narrow and limited in scope, the moral rights afforded to visual artists in the United States are vital to the continued growth and vibrancy of our nation's creative community. By affording artists the right to preserve the integrity and secure the accreditation of their artwork, the VARA provides those engaging in the creative process with a degree of protection and control over the fate of those works, incentivizing and inducing a higher degree of artistic expression.

Ryan W. Morris, is the director of volunteer services at the Arts + Business Council for Greater Philadelphia, where he oversees and implements various public interest programs aimed at providing voluneer business, legal and technology consulting services to members of the arts and cultural community. Through the Philadelphia Volunteer Lawyers for the Arts program, Morris helps to coordinate the efforts of the region's top legal professionals to provide over 100 pro bono projects per year on behalf of individual artists, creative entrepreneurs, and arts and cultural nonprofits and small businesses.