The back story
Twenty-nine years ago, in the early hours of December 15, 1989, Arturo Di Modica loaded a three-tonne bronze bull onto a truck and deposited it on Wall Street. He had spent two years sculpting the bull in his Manhattan studio. His guerrilla art was his tribute to US resilience and spirit in the aftermath of the 1986 Wall Street crash. New York Stock Exchange officials were not impressed. They called the police, who seized the sculpture. But after a public outcry, city administrators decided to install it close by in Bowling Green, where it has become a tourist attraction for those visiting downtown Manhattan.
The story fast-forwards to 2017, when asset management company State Street Global Advisors commissioned artist Kristen Visbal to sculpt the 110-kilogram Fearless Girl statue. Echoing Raging Bull’s own clandestine arrival, the sculpture was sited just before International Women’s Day in a publicity stunt to promote a State Street fund consisting of companies that have a higher-than-average number of women on their boards. The sculpture was striking. But what made it more so was the juxtaposition of the girl – hands on hips, chin raised – with Raging Bull.
Arturo Di Modica was upset. He called his lawyers and together they held a press conference declaring that Fearless Girl was an “advertising trick” that impugned the integrity of his work. He demanded the sculpture be removed. But the fact that Fearless Girl is still in place reveals plenty about the US approach to what are known as moral rights in copyright.
Divergent approaches to moral rights
Moral, as opposed to economic, rights in copyright (see box) originated as a concept in France and Germany and were protected by law in many civil law jurisdictions. Common law countries were slower to follow. That is partly because of their instinctual preference for letting parties make private agreements and partly, in the case of the United States, because of the political clout wielded by copyright owners in the booming US entertainment industries.
People who create lucrative copyright works seldom own full economic rights in them: authors assign their rights to a publishing house in return for royalties, musicians to a record company and directors to a movie studio. But in many jurisdictions people in certain creative fields can claim moral rights in their works, protecting their non-economic interests. Moral rights take different forms and include the...