Amie Johnson

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A girl stands boldly—fearlessly—in front of Wall Street’s famous “Charging Bull.”[1] On the eve of International Women’s Day, State Street Global Advisors commissioned Kristen Visbal’s installment of the diminutive, yet defiant, statue of a girl facing down a bull.[2] State Street Global Advisors intended the “Fearless Girl” to be a celebration of the power of women leaders.[3] However, Arturo Di Modica—the “Charging Bull” sculptor—is arguing that the juxtaposition of the two statues subverts the message of his statue, casting the bull as a villain.[4] He contends that the “Fearless Girl” infringes upon his moral rights.[5]

For years, there has been debate in the legal community about whether to expand protections for artists’ moral rights.[6] This debate centers around the only piece of federal legislation that seeks to protect moral rights: The Visual Artists Rights Act of 1990 (VARA).[7] Legislators enacted VARA primarily to bring the United States into compliance with the Berne Convention for the Protection of Literary and Artistic Works,[8] the oldest international copyright treaty.[9] VARA prohibits unauthorized, intentional modifications to visual artists’ works that would tarnish their reputations.[10] Additionally, it protects visual artists’ rights of attribution.[11] However, VARA’s scope is limited, as it only applies to visual art such as paintings, drawings, prints, and sculptures.[12] VARA also fails to protect reproductions of works.[13] Furthermore, VARA does not provide artists with a remedy when their works are used in an objectionable or distasteful manner.[14]

As imperfect as VARA may be, it is still an important and groundbreaking piece of legislation. Moreover, it is a necessary starting point for creating stronger, more effective statutes to protect moral rights.[15] Part I of this Note will provide a brief overview of the history of moral rights, both domestically and abroad. Additionally, Part I will outline the United States’ current legal framework with VARA. Part II will examine Arturo Di Modica’s claim that the “Fearless Girl” installment on Wall Street distorts the message of his “Charging Bull” statue.[16] Moreover, Part II will introduce the idea that moral rights—although indispensable to artists—should also protect the interests of the beholders, or connoisseurs, of art. Finally, Part III will consider “the existing provisions in VARA, the constitutional issues concerning enhanced protection, and the practicalities of successfully implementing stronger protection.”[17] Ultimately, Part III will propose changes to moral rights legislation. These changes will protect connoisseurs of art as well as artists and ensure fair results in Di Modica’s controversy and similar circumstances.

[1] Fearless Girl Sends Powerful Message, State Street Global Advisors, https://www.ssga.com/global/en/our-insights/viewpoints/enhancing-gender-diversity-on-boards-emea.html (last visited Nov. 30, 2017).

[2] Colin Dwyer, Sculptor of Wall Street Bull Says “Fearless Girl” Horns in on His Work, NPR (April 12, 2017), http://www.npr.org/sections/thetwo-way/2017/04/12/523592057/sculptor-of-wall-street-bull-says-fearless-girl-horns-in-on-his-work.

[3] State Street Global Advisors, supra note 1.

[4] Dwyer, supra note 2.

[5] Id.

[6] See Elizabeth Plaster, When Stuff Becomes Art: The Protection of Contemporary Art Through the Elimination of VARA’s Public-Presentation Exception, 66 Duke L.J. 1113, 1115 (2017) (defining moral rights as “personal and noneconomic rights that vest in the creator of a work and survive transfer of the ownership of the work”).

[7] 17 U.S.C.A § 106A (2016).

[8] Roberta Rosenthal Kwall, The Soul of Creativity: Forging a Moral Rights Law for the United States, 28 (2010).

[9] Plaster, supra note 6, at 1119.

[10] Kwall, supra note 8, at 28.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id. at 147

[16] Dwyer, supra note 2.

[17] Kwall, supra note 8, at 147.