Moral Rights and Charging Bulls!
Therecent dispute involving the ChargingBull and the Fearless Girl sculpturesraises interesting issues relating to the protection available to an author forinfringement of moral rights.
Charging Bull
TheCharging Bull is a bronze sculpture displayedin the financial district of Manhattan, New York City. According to Wikipedia, the bull was cast inBrooklyn and its author Arturo Di Modica spent some $360,000to create the cast. The sculpture was anact of guerilla art unilaterally installed in themiddle of Broad Street in front of the New York Stock Exchange(“Exchange”) as a Christmas gift to New Yorkers. The New York police seized the sculpture andimpounded it but the ensuing public outcry led the New York City Department ofParks and Recreation to reinstall the sculpture two blocks south of theExchange. These events occurred shortlyafter the 1987 stock market crash and the ChargingBull was said to be a symbol of the “strength and power of the Americanpeople”
Sinceits placement, the Charging Bull hasbecome a symbol of aggressive financial optimism and prosperity. The sculpture is very popular with touristsand thousands of people a day visit it.
Fearless Girl
Inearly March, the night before International Women’s Day, another bronzesculpture entitled Fearless Girl wasplaced directly in front of the ChargingBull. The sculpture was commissionedby State Street Global Advisers (SSgA) as part of a marketing campaign developedby McCann New York for SSgA’s gender-diverse index fund. The girl depicted in the sculpture seems tostare down the bull. The City of NewYork apparently allowed for an extension of the cobblestones around the Charging Bull to accommodate the Fearless Girl sculpture.
The Demand
Lawyersacting for Mr. Di Modica have formally complained to the city of New York. They assert that SSgA and McCann New Yorkconstructed a marketing campaign around the image of the Fearless Girl facing down the ChargingBull. The sculpture was placed indirect opposition to the Charging Bull anduses key design elements to associate the FearlessGirl with the Charging Bull. They say that the Charging Bull was appropriated and forced to become a necessaryelement of a new derivative work FearlessGirl confronts Charging Bull.
Inaddition, it is alleged that the placement of theFearless Girl in opposition to the Charging Bull has undermined theintegrity of and modified the ChargingBull. The Charging Bull no longer carries a positive optimistic message andinstead has been transformed into a negative force and threat. What was intended as a symbol of strength bythe artist has taken on a menacing air in relation to the Fearless Girl.
Itis alleged this alteration of the ChargingBull and damage to its integrity are prejudicial to Mr. Di Modica’s honourand reputation and violate his rights under the U.S. Visual Artists Rights Act of 1990. The Act confers upon authorsof visual works, the right to prevent any intentional distortion, mutilation orother modification of a work which would be prejudicial to the author’sreputation. It was requested that the Fearless Girl sculpture be removed andbe placed elsewhere. The City has notyet publically responded.
The Canadian Copyright Act
Wedo not comment on merits of this dispute that may shortly be before the courts butit seems appropriate to review the moral rights provisions of the Canadian Copyright Act. The Actprovides that an author of a work has the right to the integrity of thework, among other rights. The author’sright to the integrity of a work is infringed only if the work is, to theprejudice to the honour or reputation of the author, distorted, mutilated, orotherwise modified or used in association with a product, service, cause orinstitution. Inthe case of a sculpture such prejudice is deemed to have occurred as a result of any distortion, mutilation, or othermodification of the work. The use of the work in the association with aspecific product, service, cause or institution by itself is actionable.
The scope of the rightof integrity is controlled by the requirement that an author alleginginfringement of the right must show prejudice to his or her honour orreputation.
TheAct does not state directly on whatbasis the determination of the prejudice or the honour or reputation of theowner is to be made. There is supportfor the position that the determination should be made on an objective basisbased on public or expert opinion. Onthe other-hand, there is also support for the view that the author’s judgement,as long as it is reasonably exercised, shouldbe considered. No appellate court hasruled on this issue
Comment
Itwill be interesting to see how this dispute is resolved. On facts publically available the claim isnot without merit. In many cases involving the potential application ofmoral rights, waivers can be obtained to avoid problems.
John McKeown
Goldman SloanNash & Haber LLP
480University Avenue, Suite 1600
Toronto,Ontario M5G 1V2
Direct Line:(416) 597-3371
Fax: (416)597-3370
Email: mckeown@gsnh.com
These comments are of a general nature and not intended to provide legal advice asindividual situations will differ and should be discussed with a lawyer.
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