Public Art as Provocateur

Fearless Girl; 5Pointz; Confederate Monuments; and Scaffold. What do these works all have in common?

In 2017 each of these visual works was the subject of public controversy. The silver lining is that these controversies reinforce how powerful images are, and how influential art in public spaces can be. Unfortunately, each of these controversies also illustrates the enormous divisions our country is facing right now. At their root, these cases highlight gender inequity, racial tension, affordable housing challenges and other hot-button issues.

Ultimately, art in the public has the potential to provide a focal point for change and communication. Through legislation and the courts, the legal community has the resources to help empower the arts and artists to open up meaningful dialogues and consider solutions to some of our country’s most challenging problems. In order to confidently advise clients about these sensitive situations and issues, it is crucial that lawyers have a thorough understanding of the pertinent laws as well as the social context and motivations.

I. Moral Rights and the Visual Artists Rights Act.1

1. Fearless Girl2 a. Questions of Message Authenticity. Fearless Girl, created by , is a bronze sculpture of a young girl in pigtails with her hands on her hips, standing in a defiant stance looking across to the iconic (by artist Auturo Di Modica)—seen by many as a symbol of the male-dominated financial world. Many saw the work as a strong feminist statement, and images of the work went viral. Others expressed skepticism as to the authenticity of the sentiment behind the artwork due to the fact that the Visbal sculpture had been commissioned by Global Advisors as part of an advertising campaign. b. Unsanctioned Installation as Response. In response to Fearless Girl, another artist, Alex Gardega, installed “Pissing Pug.” 3 His work was a small bronze dog peeing on the leg of Fearless Girl. The intention of the installation was to express Gardega’s perspective that Fearless Girl was disrespecting the message of the Charging Bull sculpture and inappropriately invading its space.4

1 The full text of the Visual Artists Rights Act (VARA) can be found at 17 U.S.C. §106A. 2 Wikipedia, Fearless Girl, at https://en.wikipedia.org/w/index.php?title=Fearless_Girl&oldid=813690327 3 Peter Holey, An Artist Hated the ‘Fearless Girl’ Statue—So He Put This At Her Feet, WASH. POST, May 30, 2017. 4 Id. c. Objections from Original Artist. The lawyer for Di Modica, the Charging Bull artist, took the position that both Visbal’s and Gardega’s works violated the copyright of the original work.5

2. 5Pointz6 a. History of Collaborative Relationship. Starting in 1993, developer Jerry Wolkoff invited artists to put murals on a complex of buildings he owned in a neighborhood in Queens near MoMA PS1. Over the course of 20 years, artists created thousands of temporary murals on the walls of Wolkoff’s buildings. The complex, which came to be known as 5Pointz, became a tourist destination that attracted visitors and also contributed to the transformation of the neighborhood into an attractive residential location.7 b. Decision to Develop Property. In 2013, Wolkoff prepared to develop the site. The artists expressed their dissatisfaction with the development plans and tried to intervene. In response, Wolkoff whitewashed all of the artwork on the buildings’ walls and let the buildings sit for several months before demolishing them in 2014.8 c. Allegations of Failure to Give Required 90-day Notice. Wolkoff contended that the artists knew for many years that the ultimate plan was to destroy the buildings and redevelop the property. Nevertheless, the attorney for the artists alleged that Wolkoff’s failure to give the statutory 90-days notice meant that his actions in whitewashing and demolishing the work were a VARA violation. More than 20 artists banded together to file suit against Wolkoff.9 d. Establishing Graffiti as Work of Recognized Stature. In addition to objecting to the lack of official notice, establishing that the works of the artists are works of recognized stature is necessary in order to invoke VARA.10 e. Jury Verdict In Favor of Artists. After both parties’ failure to have the case decided at Summary Judgment, the case went forward to trial in October. In a surprise verdict, the jury found in favor of the artists.11 However, both sides previously agreed that the jury’s verdict would serve as only a

5 James Barron, Wounded by ‘Fearless Girl,’ Creator of ‘Charging Bull’ Wants Her to Move, N.Y. TIMES (April 12, 2017). 6 Wikipedia, 5Pointz, https://en.wikipedia.org/w/index.php?title=5_Pointz&oldid=813555009 7 Corey Kilgannon, 5Pointz Graffiti Artists Whose Works Were Erased Will Get Day in Court, N.Y. TIMES (April 9, 2017). 8 Id. 9 Second Amended Complaint, Cohen et al v. G&M Realty, L.P., No. 13-CV-5612 (FB0(JMA) (E.D.N.Y. June 17, 2014). 10 Id. 11 Alan Feuer, Brooklyn Jury Finds 5Pointz Developer Illegally Destroyed Graffiti, N.Y. TIMES (November 7, 2017). recommendation to the presiding judge, who will review arguments submitted by both sides as to the validity of the verdict before rendering a final decision.12

II. Free Speech and Cultural Appropriation.

1. Confederate Monuments. Public art administrators always face challenging issues when it comes to collections management: conservation and maintenance, and the deaccessioning of works for a multitude of reasons. But what about when the reason for removing works from display is that they are or become distasteful or offensive to a segment of the population? How do we decide which monuments or sculptures warrant removal and/or relocation? a. A white nationalist rally in Charlottesville, VA that turned violent in August 2017 created renewed interest and concern in the issue of confederate monuments that remain in place around the country.13 b. Responses are varied and continue to be the topic of heated debate with a legal focus on the boundaries of free speech as it applies to art and government.14 c. Are Confederate monuments racist? 15 d. Must they be considered government speech? And if so, how are they to be viewed and treated? 16 e. In order to strengthen our democratic process, productive civic engagement must happen. Local officials around the country are considering the

12 Id.; For a thorough and informative discussion of the history of and challenges faced by street artists, including a useful explanation of the difference between “bombing” and “burning”, see Dillon H. Stern, Navigating the Legal Landscape of a Subversive Art Form: Protecting Expression and Neglecting Embodiment, 15 CHI.-KENT J. INTELL. PROP. 555 (2016). Available at http://scholarship.kentlaw.itt.edu/ckjip/vil15/iss2/10. 13 Jess Bidgood, Matthew Block, Morrigan McCarthy, Liam Stack and Wilson Andrews, Interactive Monuments Art Coming Down Across the United States. Here’s a List, N.Y. TIMES (August 28, 2017). 14 See contrasting perspectives in the Americans for the Arts Statement on the Intersection of the Arts, History, and Community Dialogue AMERICANS FOR THE ARTS, STATEMENT ON THE INTERSECTION OF THE ARTS, HISTORY, AND COMMUNITY DIALOGUE, https://www.americansforthearts.org/news-room/arts- mobilization-center/statement-on-the-intersection-of-the-arts-history-and- community-dialogue, and the law in the State of Georgia which prohibits the removal of confederate monuments. GA. CODE ANN. §50-3-1 (2016), available at https://law.justia.com/codes/georgia/2016/title-50/chapter-3/article-1/. 15 George Schedler, Are Confederate Monuments Racist?, INT. J. OF APPLIED PHILOSOPHY 15:2, pp 287-308 (2001). 16 Mary J. Dolan, Why Monuments are Government Speech: The Hard Case of Pleasant Grove City v. Summun, 58 CATH. U. L. REV. 7 (2009). Available at: http://scholarship.law.edu/lawreview/vol58/iss1/3. best policies and procedures to adopt in order to provide a platform for conversation without adding fuel to the fire.17

2. Scaffold. Another instance where cultural sensitivity and the current relevance of redressing injustices with roots in early American history can be found in artist Sam Durant’s work, Scaffold. a. Durant drew material for his installation at the Walker Museum in Minneapolis, Minnesota from the structure of seven different gallows used in state-sanctioned hangings. One of the gallows referenced the execution ordered by President Lincoln of 38 Dakota Tribe members. Some members of the Dakota Tribe reacted strongly and the result was the dismantling of the artwork.18 b. This artwork, in its apparent failure, brought renewed attention to the struggle of the Dakota in Minnesota and reopened the dialogue that stretches far beyond the Scaffold controversy and provided an opportunity for creative dispute resolution to happen. 19

17 A great resource for exploring these challenges is a document created by the San Antonio Area Foundation: SAN ANTONIO AREA FOUNDATION, ENGAGING THE PUBLIC AT THE LOCAL LEVEL TO STRENGTHEN CIVIC ENGAGEMENT, http://www.saafdn.org/Portals/0/Uploads/Documents/research/Engaging_the_Pu blic_at_the_Local_Level_to_Strengthen_Civic_Engagement.pdf. 18 Sheila Dickinson, ‘A Seed of Healing and Change’: Native Americans Respond to Sam Durant’s ‘Scaffold’, ARTNEWS, June 5, 2017, http://www.artnews.com/2017/06/05/a-seed-of-healing-and-change-native- americans-respond-to-sam-durants-scaffold/ 19 Sheila M. Eldred, Dakota Plan to Bury, Not Burn, ‘Scaffold’ Sculpture, N.Y. TIMES, September 1, 2017.