Does Charging Bull Artist Arturo Di Modica have a Claim Under VARA?

–by Veronica Ramirez

Sources: Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128, 129 (1st Cir. 2006); 17 U.S.C. § 106A (2012); Leonard D. DuBoff, Christy A. King, Michael D. Murray, and James A.R. Nafziger, Art Law Deskbook: Vol. 1 Artists’ Rights in Intellectual Property, Moral Rights, and Freedom of Expression, Part 7 (Matthew Bender); Kriston Capps, Why Wall Street’s Charging Bull Sculptor Has No Real Case Against Fearless Girl, The Atlantic (Apr. 14, 2017), https://www.theatlantic.com/entertainment/archive/2017/04/wall-streets-charging-bull-sculptor-has-no-case-against-fearless-girl/523086/; History, Charging Bull,  http://chargingbull.com/chargingbull.html (last visited Apr. 29, 2017); Jamiles Lartey, ‘Charging Bull’ Sculptor Calls for New York to Remove ‘Fearless Girl’ Statue, The Guardian (Apr. 12, 2017, 3:00 PM) https://www.theguardian.com/us-news/2017/apr/12/charging-bull-artist-remove-fearless-girl-arturo-di-modica.

Abstract: On April 12, 2017, artist Arturo Di Modica stated that the “Fearless Girl” statue infringes on his artistic rights. Under the Visual Artists Rights Act (“VARA”), he may have a viable claim; however, because the “Fearless Girl” alters the message, and not the physical structure of the “Charging Bull,” it is unlikely that he would prevail.

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After the stock market crash of 1987, artist Arturo Di Modica spent two years creating a sculpture that symbolized the resilience of American people and the promise of a booming economy. On December 15, 1989, Di Modica erected the iconic “Charging Bull” sculpture outside of the Stock Market Exchange without a permit, at the foot of a then-installed Christmas tree, which quickly became a tourist attraction. The New York Stock Exchange removed the sculpture the next day.

Shortly after its removal, the “Charging Bull” was installed in a different Bowling Green location, where it still stands today. As of March 7, 2017, however, the “Charging Bull” shares the traffic island with a recently installed sculpture, the “Fearless Girl” by Kristen Visbal. Visbal, unlike Di Modica, was commissioned by State Street Global Advisors to spotlight the need for gender diversity at the leadership level on Wall Street. Like Di Modica, however, she erected “Fearless Girl” overnight on March 7, 2017, the day before International Women’s Day, as a temporary installation. The statue stands defiantly in front of the “Charging Bull,” and it is set to remain there until February 2018.

Taken together, both sculptures convey a different message than originally conceptualized. The meaning of the “Charging Bull,” a symbol of resilience, has been modified by the addition of the “Fearless Girl” and should be removed, according to Di Modica. Seeing as the statues share a traffic island in Bowling Green, the “Fearless Girl” represents the obstacles presented in a male-dominated field via the young girl confidently confronting the symbolic obstacle of the “Charging Bull.” Given this sudden shift in what the “Charging Bull” originally represented, Di Modica voiced that the “Fearless Girl” statue violates his copyright rights.

The legal basis for a claim like Di Modica’s falls under the Visual Artists Rights Act (“VARA”) of 1990, which, among other things, allows artists like Di Modica “to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to [the artist’s] reputation.” Works protected under this statute include works created after the statute’s enactment as well as works created before it that an artist still owns the copyrights to. Although Di Modica’s sculpture was created and installed in 1989, before VARA’s enactment, if Di Modica still owns the copyright or has not waived his rights, he could invoke VARA as a legal basis for his claim of copyright infringement.

Even if Di Modica does satisfy one of the requirements mentioned above, Di Modica is unlikely to prevail on the substance of his claim. In a press conference held on April 12, 2017, Di Modica’s attorney mentioned that the “Fearless Girl” was “incomplete without Mr. Di Modica’s Charging Bull, and as such it constitutes a derivative work.” Di Modica’s attorney also mentioned that the “Fearless Girl” statue was fearless because she stood in front of Di Modica’s “Charging Bull.” Thus, in Di Modica’s view, the “Fearless Girl” modifies his work.

Modification typically involves altering the work itself, such as partially covering a work of art. To date, federal courts have not considered whether a modification includes alterations external to a protected work’s surroundings, such as the installment of another statue in the same area. Since the “Fearless Girl” alters the message of the “Charging Bull,” but not the physical sculpture of the “Charging Bull,” it is unlikely that Di Modica could prevail on his claim.

Additionally, Di Modica’s claim raises an issue concerning site-specific art. Under VARA, site-specific art claims assert that the removal of a work of art from a particular place violates an artist’s rights. “In a work of ‘site-specific art,’ one of the component physical objects is the location of the art. To remove a work of site-specific art from its original site is to destroy it.”

Applying this to Di Modica’s situation, it is unlikely that Di Modica could prevail on his claim simply because his “Charging Bull” is being modified by another object in its vicinity, rather than being removed from its physical location. Since the “Charging Bull” is not being removed, the “Charging Bull” is not necessarily destroyed by the addition of the “Fearless Girl.” Additionally, if the Second Circuit adopts a similar view of indifference to that of the First Circuit in Phillips, then the site-specific argument may prove futile.

Ultimately, Di Modica’s attorneys have not filed suit, but they have requested information regarding the permits of the “Fearless Girl,” in addition to asking New York City Mayor Bill de Blasio to move the statue elsewhere. Di Modica and his attorneys are hoping to resolve this amicably, but they have not removed litigation from the table.

New York Court of Appeals Finds No Right of Public Performance Under New York Law for Creators of Sound Recordings

–by Elizabeth Snyder

Citation: Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. 172, 2016 N.Y. LEXIS 3811 (Dec. 20, 2016).

Abstract: Responding to a certified question from the Second Circuit Court of Appeals regarding the existence of a right of public performance in sound recordings, the New York Court of Appeals held that no right of public performance exists under New York common law to protect creators of pre-1972 sound recordings.

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On December 20, 2016, the New York Court of Appeals answered a question certified by the Second Circuit Court of Appeals regarding the existence under New York law of a right of public performance for creators of sound recordings before 1972. Finding that New York common law does not recognize any such right, the court answered the question in the negative.

In the federal context (mainly through the Digital Performance Right in Sound Recordings Act of 1995), sound recording owners have a right “to control or authorize the public performance of the copyrighted work, but only for performances ‘by means of a digital audio transmission.”’ Under federal law, the right of public performance is limited to digital radio services, and does not apply to AM/FM radio stations, bars, restaurants, or stores that play music.

The action was commenced by Plaintiff, a corporation owned by two of the original members of The Turtles, as a federal class action on behalf of recording artists, or the owners of the rights, of pre-1972 sound recordings. The action alleged common-law copyright infringement and unfair competition against Defendant, the nation’s biggest satellite digital radio service.

The United States District Court for the Southern District of New York found that New York does recognize a common-law right of public performance in protection of copyright holders for pre-1972 sound recordings. On Defendant’s appeal, however, the Second Circuit Court of Appeals found that the case presented a novel issue of law and certified the aforementioned question to the New York Court of Appeals.

The court began its opinion with a discussion of federal copyright law, noting that state common law applies to copyrights only insofar as federal statutes fail to do so. Sound recordings were protected by federal statute for the first time under the Sound Recording Amendment of 1971. However, the protections afforded by this amendment only extended to those recordings produced after February 15, 1972. Under that statute, sound recordings were not afforded a right of public performance. In 1995, Congress enacted the Digital Performance Right in Sound Recordings Act, which authorized the application of any rights under state statutes or common law (that do not conflict with federal law) to sound recordings produced before February 15, 1972 until February 15, 2067.

The court noted that state court cases in New York have not addressed whether the right of public performance for sound recordings inheres in common-law copyright. Noting that most decisions from lower courts in New York and federal courts applying New York law have dealt with the issue of piracy, the court nonetheless conducted a survey of its earlier decisions to determine that common-law copyright protects only against the unauthorized reproduction of a copyrighted work, but does not prevent a purchaser from playing a copy of a sound recording.

The court further bolstered its decision with an appeal to societal expectations. According to the court, the fact that Plaintiff took no action to assert its common-law rights for four decades supported its finding that neither artists nor copyright holders allege the existence of such a right. The court instead endorsed the arrangement identified by the Third Circuit, wherein the record companies and artists exist in a “symbiotic relationship” with radio stations, allowing their music to be played to “encourage name recognition and corresponding album sales.”

Ultimately, the court concluded that New York common law “has never recognized a right of public performance for pre-1972 sound recordings,” and that to find otherwise would be to produce “extensive and far-reaching” consequences that the court is not equipped to handle. Instead, recognition of such a right must come from the legislature, which is better able than the courts to balance competing interests and create a structure of rules to govern a right of public performance.