If you mess with the bull you get the horns – Will the city of New York face legal action over ‘Fearless Girl’?

Wall Street’s famous Charging Bull faces a new opponent in the form of a defiant young girl, but can she withstand the bullish force of the designer’s legal objection?

If you’ve ever taken a stroll down Wall Street in New York you won’t have failed to notice the famous ‘Charging Bull’ statue that resides there. If you’ve taken this stroll more recently you may have also noticed a new sculpture facing the bull, the now well-known ‘Fearless Girl’ who stands confidently, head raised, and with her hands defiantly planted on her hips.

Equally defiant is Arturo Di Modica, the sculptor behind the Charging Bull, who has argued that the recent unveiling of Fearless Girl is a violation of his moral rights since it changes his own statue’s meaning and context.

In a press conference, Di Modica explained how the symbolization of his work has been transformed from a picture of “freedom, world peace, strength, power and love” to that of negativity and fear. His attorney argues that the placement of Fearless Girl was a deliberate decision to exploit Charging Bull. Indeed, some critics have argues that, without Charging Bull seemingly staring her down, the girl would not be considered ‘Fearless’ at all.

Di Modica has reportedly requested the removal of Fearless Girl, together with a claim for unspecified damages arising from the breach of his moral rights. Under international law, moral rights enable authors of copyright works (e.g. writers, artists and sculptors) to claim authorship of their works (the ‘right of paternity’), as well as the right to object to any distortion or modification of, or derogatory action in relation to, their works (the ‘right of integrity’).

Di Modica’s rights under US law are more limited and lie within the US Copyright Act. The right of integrity included in the Act 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. The problem for Di Modica here is that the current position of Fearless Girl has not resulted in any derogatory action on or treatment of Charging Bull. Further, the Act also states that the placement of a work could not constitute destruction, distortion, mutilation, or other modification unless it is caused by gross negligence. On the face of things, it would seem that this may be a difficult provision for De Modica to rely upon.

In order to strengthen his case, Di Modica may consider using his Italian citizenship and relying on Article 185(1) of the Italian Copyright Act, which applies to any works by Italian authors. The provisions are far more generous and allow an author to object to “any defamation, mutilation or any other modification, and any other damage to the work itself, which can be prejudicial to his/her honour or reputation”. However, it is a requirement that the damage caused must be prejudicial to the honour or reputation of the author rather than merely the work. Whether De Modica has been prejudiced himself by the position of Fearless Girl is disputable. It would be extremely interesting if this question were to be put to the courts.

Currently, Fearless Girl is set to stay put until October 2018. Watch this space for any further developments!