April 19, 2017
You have likely seen the headlines celebrating (some admonishing) Fearless Girl, the strategically placed statue of a determined girl, standing with her hands on her hips in front of the famed Charging Bull statue on New York’s Wall Street. While many have celebrated Fearless Girl, there has been controversy surrounding the statue, including objections by the artist behind Charging Bull, Arturo Di Modica. Di Modica’s main beef with Fearless Girl (excuse the pun) is that it changes the meaning of his sculpture, and in doing so, affects the integrity of his work, a moral right. In a recent press conference, Di Modica demanded Fearless Girl be removed, claiming her current placement infringes his moral rights.
No one can deny that the two works now interact, and the interaction conveys a message (one which the artist of Charging Bull didn’t agree to). The competing interests of the respective artists raise interesting questions regarding the reach and limits of artists’ rights, including the extent to which an artist can control how his or her work is displayed, and the nature of the moral right of integrity. A central question is whether an artist gives up, or waives moral rights when his or her art is placed in public, or otherwise acquiesces to public interaction with the art, including interaction by other artists. What restraints may be reasonable in such circumstances?
Fearless Girl was erected in March 2017 in honour of International Women’s Day. State Street Global Advisors and McCann New York sponsored the installation to highlight the need for female corporate leadership, and have also used photographs of the two sculptures in a marketing campaign. The placement of Fearless Girl suggests she is “staring down” Charging Bull. This interaction has led Di Modica’s lawyer to allege that Fearless Girl incorporates and depends on Charging Bull to convey its meaning, and in this way, has commercialized and exploited Charging Bull without Di Modica’s permission. Interestingly, Charging Bull was clandestinely erected by Di Modica in 1989 as a celebration of American spirit and virility after the 1986 stock market crash. According to Di Modica, the addition of Fearless Girl to the traffic island changes his work’s meaning from a “symbol of prosperity and strength” to that of a villain.
So what if this case arose in Canada? In Canada, artists and authors alike have “moral rights”. Moral rights include an author’s right to the “integrity” of his or her work, and have roots in Article 6bis of the Berne Convention, which provides that the author shall have the right to “object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.” Moral rights can be waived, and there is no requirement in the Copyright Act that the waiver be express or in writing.
In Canada, an artist’s right to “integrity” is infringed where a work is distorted, mutilated, or otherwise modified or used with a product, service, cause or institution, but only if to the prejudice’s the author’s “honour or reputation”. Moral rights are imbued with the creative spirit of the author, and intended to preserve and protect an author’s expression — they are not economic rights, and only a handful of Canadian cases have interpreted moral rights to date. Notably, prejudice is deemed in cases of any distortion, mutilation or “other modification” to a sculpture (same goes for paintings and engravings). The question is whether “other modification” relates only to a modification of the physical work, or whether “other modification” is to be understood more broadly to include modifications to the context in which the work is experienced—e.g. its placement and surroundings. Notably, the Copyright Act states that there is no distortion or mutilation “solely” because the location or position of a work is changed (same goes for changing the physical means by which a work is exposed or the physical structure containing a work). If a work could not be distorted or modified by changes in context, arguably, there would be no need to exempt moving a work to a new location. On the other hand, the exemption for changing the “position” of a work could be argued to be broad enough to cover changes in the work’s surroundings.
The leading case setting out the scope of moral rights in Canada is Snow v. Eaton Centre Ltd. (1982), 70 CPR (2d) 105 (Ont HC). In that case, renowned Canadian artist Michael Snow successfully obtained an injunction against a shopping mall in downtown Toronto on the basis of his moral rights. The mall had placed bows on the necks of some 60 sculptures of geese in Snow’s work “flight stop” for the holiday season, which Snow claimed made the work—which he had sold to the defendant—look ridiculous, like “dangling earrings from the Venus de Milo”, and thus, negatively impacted his reputation. The Court agreed, finding the Copyright Act’s requirement that the distortion be “prejudicial to [the artist’s] honour or reputation” involved a subjective element and that, in this case, other well respected artists and people knowledgeable in the field shared Snow’s sentiments. Since then, Courts have moved towards somewhat more of an objective test for what will prejudice an artist’s honour and reputation. For example, in Prise De Parole Inc. v. Guérin, Éditeur Ltée (1995) 66 CPR (3d) 257 (FCTD), the Federal Court held that an author’s moral rights were not infringed when a publisher used only extracts of the author’s novel in a grade 8 textbook, despite the publisher’s abridgements constituting a “distortion, mutilation, or other modification” of the author’s work, because there was no objective harm to his reputation despite personal feelings of shock and distress: the number of lectures he was asked to give did not fall after publication of the abridgement, he had not heard of any complaints about the publication, nor had he been ridiculed or mocked by any colleagues or newspapers.
When considering a possible moral rights claim in the context of the Charging Bull against Fearless Girl, it is somewhat doubtful that a Canadian court would find infringement if faced with similar circumstances. First, it is arguably not the work itself that is modified, but rather its meaning in the context of its surroundings—it is not that someone has placed bows on the Bull, so much as they have placed a hunter pointing a gun at the geese. Second, Di Modica does not appear to be advancing a claim that Fearless Girl impacts his personal reputation or honour. He is much more like the author in Prise De Parole who, despite feeling subjective hurt, has suffered no objective harm to his reputation by the mere placement of Fearless Girl (though his reaction to Fearless Girl has certainly resulted in some negative press). At Canadian law, perhaps Di Modica’s strongest claim would be against the two companies for using his work as part of a collective installation in association with services, causes, or institutions with which he does not wish to be associated (presuming he could prove prejudice to his honour and reputation). Notably, there is an exception to copyright infringement for taking photographs of sculptural works permanently situated in a public place, but there is no similar defence to moral rights infringement.
There is certainly a tension between preserving the integrity of the artist and public discourse, especially when a work is placed in a public setting, and subject to public scrutiny and interpretation. If the moral right to a work’s “integrity” permits artists to control the effect of the work on an audience, it may tip the balance too far in favour of preserving an artist’s intended expression, and ultimately give artists an undesired level of control over the eye of the beholder. For example, such an expansive interpretation of moral rights could permit artists to dictate to galleries what other works may or may not be displayed near the work, impacting the galley’s curatorial abilities. City policies toward graffiti would also be impacted—to date, cities’ rights and property owner’s rights have generally been viewed as “trumping” moral rights in such works. For example, the city of Toronto has a system in place to assess and remove graffiti by artists, giving artists little standing. It would seem that the right to control an association with a cause, institution etc. is as far as the drafters intended to go, giving integrity a more physical definition and not a right to control over placement or association with other works. On the other hand, the Supreme Court of Canada has said that, for the purposes of copyright infringement, “the cumulative effect” of the features copied from the work must be considered. The moral right to integrity extending to permit an artist to control the meaning of a work could be a natural corollary of this. However, even so, it seems likely that when an artist agrees to place a work in public, he or she is waiving certain moral rights, for example, by giving up control over the meaning of a work, and accepting new meanings that may result from public interaction with the work. From that perspective, Fearless Girl should be permitted to continue standing her ground.
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