Could 'Fearless Girl' defeat 'Charging Bull'?

Story highlights

  • The sculptor of "Charging Bull" is demanding "Fearless Girl" be removed from her current location
  • Paul Callan: Though "Fearless Girl" might lose in a court of law, she will undoubtedly win in the court of public opinion
  • Instead of suing her, the sculptor would do better to join her, capitalizing on new tourism opportunities, writes Callan

Paul Callan is a CNN legal analyst, a former New York homicide prosecutor and currently is of counsel at the New York law firm of Edelman & Edelman PC, focusing on wrongful conviction and civil rights cases. Follow him on Twitter @paulcallan. The opinions expressed in this commentary are his own.

(CNN)Last week, Arthur Modica, the 76-year-old sculptor of Wall Street's ferocious "Charging Bull," demanded the city of New York remove the "Fearless Girl" sculpture currently obstructing the flow of testosterone toward Wall Street. Modica's lawyer claims both his reputation and his work of art have been severely damaged by the city's decision to permit placement of the bronze little girl near the 18-foot-long bronze bull.

Though "Fearless Girl" may face a tough courtroom fight under current United States copyright law, the 4-foot sculpture could find a way to profit from the snarling bull if a lawsuit is filed. Because even if a court of law does not decide in her favor, a court of public opinion will -- as evidenced from the hordes of tourists flocking to her side each day. Instead of filing suit, then, Modica would do better to capitalize on the new tourism opportunities that "Fearless Girl's" addition creates.

The stealth placement of 'Charging Bull'

"Charging Bull's" lawyers make some compelling arguments about how the placement of "Fearless Girl" has damaged their client's artistic rights. They note that "Charging Bull" was created in the aftermath of the 1987 stock market crash as a positive symbol for a demoralized Wall Street, and yet now that symbolism is lost.
Paul Callan
As the artist himself said in an interview with the New York Post and Marketwatch in March of this year: "I put it there for art. ... My bull is a symbol for America. My bull is a symbol of prosperity and for strength."
He should perhaps add to the list that the bull is also a symbol of a stealth public art placement done in the middle of the night without proper permitting and permission.
After creating the 3.5-ton bronze bull, he and a friend trucked the beast to the front of the New York Stock Exchange in December 1989, putting it next to a Christmas tree in the dead of night. When the artist's "gift to New York" was discovered in the morning, it created quite a sensation, but lacking proper permits it was promptly impounded by the New York Police Department.
Six days later, after public opinion shifted in favor of the bull, the city relented, allowing a "temporary" placement of the sculpture at Bowling Green, where it has been a tourist attraction ever since.
That is until a 4-foot little girl made of a similar-appearing bronze began to steal the bullish limelight.

'Charging Bull' supports gender equality but wants girl to move

Modica's attorney, Norman Siegel, formerly head of the New York Civil Liberties Union, has taken pains to explain that neither he nor the artist oppose "gender equality" but feel that "Fearless Girl" belongs elsewhere in the city. Thankfully, he did not suggest the home or the kitchen as a suitable alternative location.
Siegel's legal point is that the proximity of "Fearless Girl" to "Charging Bull" and the similarity of bronze designs create the impression the two pieces are now a single work of art conveying a radically different message than that intended by the sculptor.
The US Visual Artists Rights Act of 1990 says "the author of a work of visual art shall have the right ... to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation. ..." So the issue presented is whether the proximity of "Fearless Girl" to the bull constitutes an "intentional distortion, mutilation, or modification" of "Charging Bull," and has the sculptor's reputation or honor been damaged as a result?

'Fearless Girl' turns bull into raging misogynist

Modica's lawyer would say the placement of the bronze little girl has turned the noble bull -- once a symbol of American strength and prosperity -- and his sculptor into raging misogynists in the public eye.
In the absence of the bull, what would the little girl be doing on lower Broadway: Standing up to her parents in a classic adolescent pose or possibly directing pedestrian traffic? Without the bull, she certainly wouldn't be doing anything related to rebuking male domination of corporate America. The bull provides the necessary context to shape her message.
Modica's lawyers could also argue that "Fearless Girl" is nothing more than a commercial device designed to advance the interests of its hedge fund owners (State Street Global) by infringing on Modica's artistic creation. If "Fearless Girl" is being used this way, she may forfeit her right to a "fair use" defense under Section 107 of the Copyright Law.
"Charging Bull's" sculptor suggested the proof of commercial purpose could be found in the wording of an inscription on the plaque initially placed beside her, which stated, "Know the power of women in leadership. SHE makes a difference." The "SHE" refers to a product that State Street Global Advisors, "Fearless Girl's" owners, allegedly offered to its customers. State Street contests the claim of commercial purpose and subsequently has removed the plaque.

Does 'Fearless Girl' have First Amendment rights?

"Fearless Girl's" lawyers would dispute this charge, arguing the law does not apply to her because she doesn't touch or mutilate the bull and is therefore an entirely independent work. Furthermore, since the plaque has been removed, the statute serves no commercial purpose.
Ironically, any legal battle between the bull and the girl is likely to increase the value of both sculptures, but only if they are displayed together. The girl has relatively little meaning on her own, and the bull had lost its appeal as a top tourist attraction. But a lawsuit would draw new attention to both and could drive tourism and replica sales.
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So even though "Fearless Girl" might lose the legal battle, she could win the war and profit by partnering up with the bull. In short, standing up to the bull and forcing a deal could be viewed as the victory of female ingenuity over the male use of brute strength.
In true Wall Street fashion, until the bull negotiates a sensible deal or wins in a court of law, he will have to deal with all those proud little girls ignoring him and taking selfies with "Fearless Girl," their symbol of female strength and prosperity.