A Landmark Case?

Can the integrity of publicly sited sculpture be damaged by siting another object close to it? Think of landmark works such as Antony Gormley’s Angel of the North, 1988, or Andy Scott’s Kelpies, 2013: would their integrity be affected if the owners of the works and land on which they are installed allowed further sculptures to be sited nearby; would the nature and intent of such site-specific works be distorted, and would this damage the professional integrity and reputation of the artists? Would the artists have any rights to prevent such activity?

One artist believes he has such rights, and has recently threatened legal action to exercise them. Readers may recall the now landmark work by US artist Arturo Di Modica, who made a huge three-ton bronze sculpture, Charging Bull, at his own expense of around $360,000. Di Modica says the work was created in response to the New York Stock Market crash of 1987 ‘as a symbol of the strength and power of the American people’. On 15 December 1989 he installed the work – clandestinely and without authority – outside the New York Stock Exchange as ‘a Christmas gift to the people of New York’. The work was quickly removed by the authorities but, in response to substantial public calls for its reinstatement, re-sited on 21 December 1989 at the end of Broadway in Bowling Green Park, where it remains today. Often referred to as ‘The Wall Street Bull’ or ‘Bowling Green Bull’, the work has become one of New York City’s most popular tourist photo-opportunities, and the media also regularly uses images of it when reporting financial news.

Despite his ‘gift’ statement, Di Modica still owns the work. In 2004 he said that he would consider offers for its purchase, as long as the work was not taken away from its current site, where it has been permitted to remain by indefinite licence of the New York City Department of Parks and Recreation. Nearly three decades later, most people now view the work as a permanent landmark feature of Lower Manhattan.

On 7 March 2017 another bronze sculpture was installed on the site: a young girl with hands on hips and chin up, defiantly facing the Charging Bull. A plaque names the work Fearless Girl and states ‘Know the power of women in leadership. SHE makes a difference’.

‘SHE’ is the ‘ticker symbol’ on the NASDAQ Stock Exchange of the company that commissioned and installed the new work, State Street Global Advisers (SSgA). Fearless Girl stands 4ft tall and weighs 250lbs, and was commissioned from US sculptor Kristen Visbal to spearhead SSgA’s advertising campaign celebrating the first anniversary of its ‘gender diversity index’ fund that ‘invests in US large-capitalisation companies that rank among the highest in their sector in achieving gender diversity across senior leadership’. SSgA’s commission agreement with the artist specified the creation of a defiant pose by a young girl. Fearless Girl was permitted to be installed on the site initially for a month by New York City Hall, which has recently licensed it to remain until February 2018.

Di Modica is aggrieved by the installation of Fearless Girl: he claims the new bronze’s proximity to his own violates his legal rights. His lawyer has written to SSgA and New York City Mayor Bill de Blasio demanding Fearless Girl’s removal on the basis that ‘State Street Global Advisors exploited the Charging Bull for commercial gains as part of an advertising campaign undertaken without the consent of Mr Di Modica. We request that the Fearless Girl statue be removed and placed somewhere else and that damages be awarded to Mr Di Modica for the violation of his legal, statutory rights [because] Fearless Girl is not only contingent on Charging Bull for its meaning, but actively changes the meaning of Di Modica’s sculpture, thereby violating the Visual Artists Rights Act. The statue of the young girl becomes the Fearless Girl only because of the Charging Bull: the work is incomplete without Mr Di Modica’s Charging Bull [that] no longer carries a positive, optimistic message. Rather, it has been transformed into a negative force and a threat … The inescapable implication is that the Charging Bull is the source of that fear and power and a force against doing what’s right. Plainly, the presence of the statue of the young girl has tarnished and modified the Charging Bull.’

Although powerfully argued, Di Modica’s lawyer currently asserts that he wants to ‘amicably resolve these violations’, but later added the threat: ‘We never dismiss the possibility of litigation.’ An initial response was tweeted by Mayor de Blasio: ‘Men who don’t like women taking up space are exactly why we need the Fearless Girl’, and in a subsequent press conference the Mayor stated: ‘None of us here are in any way not proponents of gender equality.’ In his most recent weekly radio broadcast de Blasio said he would fight any lawsuit to remove Fearless Girl, adding ‘Let’s be blunt. Charging Bull is a celebration of unfettered capitalism, and I don’t think for lot of people that says it all … You can say it is about the spirit of optimism, sure, but it is a symbol of Wall Street, and Wall Street to say the least is a double-edge sword.’

So the scene is set for a humdinger of an art law battle. What are the strengths and weaknesses of each side, is a case likely to go to trial, and who is likely to win? A complex point lies at the heart of the matter: does an artist’s statutory moral right of integrity include protection against adding another work in close proximity to it? US and UK legislation giving artists an automatic integrity right is almost identical: each law protects artists against treatment of their works that are or would be prejudicial to their honour or reputation. But US and UK legislation differ in defining prejudicial treatment: US law specifies ‘intentional distortion, mutilation, or other modification of that work’; whereas UK law specifies ‘any addition to, deletion from or alteration to or adaptation of the work’. Note that US law protects against intentional mistreatment, while UK law does not; and that UK law protects mistreated works only from being exhibited in public, while US law does not.

In the case of Charging Bull, it is evident that Fearless Girl’s addition to the site was intended by the commissioner SSgA, and City Hall. But whether that intentional addition amounts to mistreatment remains to be decided. Does naming the smaller sculpture Fearless Girl have any relevance – if the statue was simply named ‘she’ or ‘girl’ or ‘female’, would its presence and effect in the eyes and minds of spectators still have changed their view of the bull standing alone? Does ‘other modification of the work’ include adding the smaller statue, or does the phrase only mean modifications to the physical object of the bull and not to its site?

Returning to initial analogous thoughts about UK landmark works such as Angel of the North and Kelpies brings this interesting and complex issue into sharp focus: what are the real issues about siting, interpretation and protection of public artworks, now and in the future?

 

© Henry Lydiate 2017

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.