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A Battle Between Moral Rights and Freedom of Expression: How Would Moral Rights Empower the "Charging Bull" Against the "Fearless Girl"?

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A Battle Between Moral Rights and Freedom of Expression: How Would Moral Rights Empower the THE JOHN MARSHALL REVIEW OF INTELLECTUAL PROPERTY LAW A BATTLE BETWEEN MORAL RIGHTS AND FREEDOM OF EXPRESSION: HOW WOULD MORAL RIGHTS EMPOWER THE "CHARGING BULL" AGAINST THE "FEARLESS GIRL"? TZU-I LEE ABSTRACT The Fearless Girl statue that stands in front of the iconic Charging Bull sculpture in Manhattan’s Financial District has drawn attention since an investment company first installed her for International Women’s Day in 2017. The Fearless Girl alters the context and meaning of the Charging Bull to a symbol of gender oppression in the workplace and provokes tensions between copyright and freedom of speech. The Fearless Girl also leads to a scene where a small girl funded by Wall Street is standing up a large bull created by an artist with his own money. This comment discusses how artists can rely on “moral rights” in preventing their works from intentional distortions like the Fearless Girl case under the Visual Artists Rights Act (VARA). With the reputational externalities and the freedom of expression theories, this comment proposes that VARA should extend to protect against objectionable contextual modification of a work of art. The clear global trend is towards greater recognition of artist’s moral rights for a broad range of protection. The protection against objectionable contextual modification also reveals unequal power relations and empowers artists in the complexities of cultural production and consumption under globalization. The contextual protection is valuable for the artist and the public interest. Copyright © 2018 The John Marshall Law School Cite as Tzu-I Lee, A Battle Between Moral Rights and Freedom of Expression: How Would Moral Rights Empower the "Charging Bull" Against the "Fearless Girl"?, 17 J. MARSHALL REV. INTELL. PROP. L. 672 (2018). A BATTLE BETWEEN MORAL RIGHTS AND FREEDOM OF EXPRESSION: HOW WOULD MORAL RIGHTS EMPOWER THE "CHARGING BULL" AGAINST THE "FEARLESS GIRL"? TZU-I LEE I. INTRODUCTION ........................................................................................................ 673 II. BACKGROUND OF MORAL RIGHTS ........................................................................... 674 A. Art and Artists’ Rights: Freedom of Expression, Copyright, and Moral Rights ........................................................................................................... 675 B. A Historical Development of Moral Rights ................................................... 676 III. ANALYSIS ............................................................................................................. 679 A. The Bull qualifies for protections under VARA ............................................ 681 B. An economic analysis of moral rights: the reputational externalities potentially benefit both individual artists and the industry........................ 682 C. A socio-artistic analysis of moral rights: the freedom of artistic expression and its limits .............................................................................. 684 IV. PROPOSAL............................................................................................................. 686 A. Offering substantial bargaining powers to artists ........................................ 687 B. Revealing the power relation behind the scene ............................................ 688 V. CONCLUSION .......................................................................................................... 689 672 [17:672 2018]A Battle Between Moral Rights and Freedom of Expression: 673 How Would Moral Rights Empower the "Charging Bull" Against the "Fearless Girl"? A BATTLE BETWEEN MORAL RIGHTS AND FREEDOM OF EXPRESSION: HOW WOULD MORAL RIGHTS EMPOWER THE "CHARGING BULL" AGAINST THE "FEARLESS GIRL"? TZU-I LEE* I. INTRODUCTION On March 7, 2017, opposite the “Charging Bull” statue (the Bull) in New York’s financial district, arrived “Fearless Girl,” a 4-foot-tall statue bravely facing down the 11-foot beast.1 The “Fearless Girl” (Fearless Girl) embodies the frustration around the obstacles female executives face rising into leadership positions on Wall Street. 2 Alongside Fearless Girl, a plaque read: “[k]now the power of women in leadership. SHE makes a difference.”3 “SHE” refers both to the girl and the stock market ticker symbol of State Street Global Advisors (State Street) which commissioned Fearless Girl.4 Before Fearless Girl arrived, the Bull was a hopeful symbol of resilience and a booming economy.5 Charging toward a tiny girl, it becomes a stand-in for the gendered * © Tzu-I Lee 2018. J.D. candidate, May 2019, The John Marshall Law School. Many thanks to Professor Maureen Collins, Professor Patty Gerstenblith, Professor Roberta Kwall, John Marshall's Writing Resource Center advisors, my family and friends for their support and encouragement. Special thanks to Susan Hu, who inspired me to write this comment. 1 James Barron, Wounded by ‘Fearless Girl,’ Creator of ‘Charging Bull’ Wants Her to Move, N.Y. TIMES (Apr. 12, 2017), https://www.nytimes.com/2017/04/12/nyregion/charging-bull-sculpture-wall- street-fearless-girl.html. 2 Fearless Girl statue has been standing on Wall Street since she was first put up for International Women’s Day, March 8, 2017, as an advertisement for an investment fund comprised of gender diverse companies. Although originally installed only temporarily, Kristen Visbal’s Fearless Girl sculpture has received much attention. In the wake of popular demand, Fearless Girl’s tenure is to be extended by almost a year. On April 19, 2018, New York Mayor Bill de Blasio announced Fearless Girl is relocating outside of the New York Stock Exchange, facing the building by the end of 2018. Renae Merle, ‘Fearless Girl’ Sets Off a Storm of Debate Over ‘Charging Bull’ Meaning, WASH. POST (Apr. 20, 2017), https://www.mercurynews.com/2017/04/20/fearless-girl-sets-off-a-storm-of-debate/; Aric Jenkins, ‘Fearless Girl’ Is Moving to the New York Stock Exchange, FORTUNE (Apr. 19, 2018), http://fortune.com/2018/04/19/fearless-girl-statue-moved-nyse/. 3 Fearless Girl was commissioned by State Street. Fearless Girl was intended to “celebrate the importance of having greater gender diversity in corporate boards and in company leadership positions.” The plaque was removed on April 2, the same date the Fearless Girl statue’s permit was set to expire. The investment firm claimed that the decision to pull up the plaque had nothing to do with the controversy or Di Modica’s claims. Rather, the switch took place after Fearless Girl was inducted into the New York City Department of Transportation’s public art project, allowing it to stay with the Bull through February 2018. Jen Wieczner, Why the Fearless Girl Statue’s Controversial ‘SHE’ Plaque Was Removed, FORTUNE (Apr. 17, 2017), http://fortune.com/2017/04/17/fearless-girl- statue-nyc-plaque-she-nasdaq/. 4 Id. 5 After the stock market crashed in 1987, the artist Arturo Di Modica created the Charging Bull sculpture that symbolized the resilience of American people and the promise of a booming economy. On December 15, 1989, Di Modica installed the Bull outside of the Stock Market Exchange without a permit, at the foot of a Christmas tree. It quickly became a tourist attraction. The New York Stock Exchange removed the Bull the next day. Right after its removal, the Bull was installed at a permanent home, Bowling Green. CHARGING BULL, http://chargingbull.com/Chargingbull.html. (last visited Sep. 24, 2017). Associated Press, ‘Charging Bull’ Sculptor Says New York’s ‘Fearless Girl’ [17:672 2018] The John Marshall Review of Intellectual Property Law 674 forces that work against women’s success in the workplace.6 The creator of the Bull, Arturo Di Modica, asserted that Fearless Girl has turned his work into a symbol of male chauvinism and demanded that Fearless Girl be removed.7 Fearless Girl also has led to an interesting situation where a small girl funded by Wall Street is standing up to a large bull created by an artist with his own money.8 Rather than copyright infringement, Di Modica may have a better claim of moral rights. Congress enacted the Visual Artists Rights Act (“VARA”) in 1990,9 which allows artists to prevent any intentional distortion, mutilation, or other modification of their works that would be prejudicial to artists’ reputation—“moral rights.”10 While artistic expression is generally regarded as speech,11 artists have moral rights in their artistic works that are not pecuniary.12 This Comment explores the notion of moral rights in the context of Fearless Girl and proposes that moral rights under VARA should be extended to protect against objectionable contextual modification of a work of art. Part I of this Comment addresses issues raised by Fearless Girl. Part II provides an overview of moral rights and related concepts like freedom of artistic expression, and copyright. Part III argues that the artist’s rights should be protected by moral rights under the reputational externalities and the freedom of expression theories. Part IV proposes that the protection extends to objectionable contextual modification. The contextual protection encompasses the artist’s economic interests and includes public interest because it reveals power structures behind the scenes. II. BACKGROUND OF MORAL RIGHTS Moral rights include the rights of attribution, integrity, disclosure, resale royalty, withdrawal, and protection from excessive criticism.13 The notion of artists’ moral rights has won a large degree of acceptance in Europe and other countries.14 Common law countries
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