A story has been brewing over the past few weeks involving the famed Charging Bull sculpture that sits in the middle of Bowling Green in Lower Manhattan. The sculpture was made by Arturo di Modica and installed without permission near Wall St as a Christmas gift from the artist to New Yorkers in December 1989. The sculpture was eventually moved to its current location a few blocks away, and was allowed by the city to remain there permanently.

On the eve of International Women’s Day this year, 8 March, another sculpture was put up a few feet away from Charging Bull. This was Fearless Girl, a much smaller work by Kristen Visbal, that appears to be staring down the enormous 3,200 kg bull. The second work has become a hit with visitors to the city who have in the past six weeks made Fearless Girl (or rather, the interplay between Fearless Girl and Charging Bull) something of an internet sensation.

The sculptor of the bull, di Modica, is not happy by the recent appearance of a new work so close to his own. First of all, while Fearless Girl may give the appearance of a small but courageous girl staring down a seemingly overpowering foe, it was in fact commissioned and placed by a subsidiary of the world’s third largest asset management company, State Street Corporation. And more important is the claim that Fearless Girl affects the integrity of his original piece, that it ‘distorts’ di Modica’s original artistic intention.

Now for those of you concerned with the protection of artists’ moral rights in their works (meaning their personality rights as expressed through their works), this matter should be of interest. Does an artist have a right to object to the mere placement of another work near his or her creation? Instinct might say no, that it would be unfairly onerous on the owner of the piece, or a museum or gallery, or a city for that matter, if the artist could at all times forbid them from displaying the work in a particular way. And it may in fact be the case that under US law, namely the Copyright Act (at s 106A, incorporating the Visual Artists Rights Act of 1990), the moral right to the ‘integrity’ of a work – which does, as a matter of law, exist – would not extend as far as allowing an artist the ability to veto the placement of the work vis-à-vis other works.

But is this right? It’s hard to know for sure. There could be cases where the placement of a work in an exhibition could in fact be ‘derogatory’ to the artist’s honour or reputation (one of the key elements in proving a violation of the moral right of integrity). Imagine a religiously-inspired painting placed at the centre of an exhibition of pornographic material. Or the work of a self-respecting professional artist next to handprints by toddlers. Needless to say, it will always be difficult to draw the line.

The Berne Convention for the Protection of Literary and Artistic Works does require signatory countries, all 173 of them, including the US, to protect the moral rights of artists. But the text of the Convention is unclear as to how far this protection should extend. It offers artists (and other authors) the right to object to any distortion, mutilation or modification – ‘or other derogatory action’ – that would be prejudicial (i.e. would injure) the particular artist’s honour or reputation (see Art 6bis of the Convention). Notice the ‘other derogatory action’ bit. It’s not clear how far this can extend, so it’s generally left to the countries themselves to see how far they will take it.

Interestingly, while US law seems to offer a narrower implementation of the right (only extending to distortion, mutilation or modification), other countries have chosen to go further. Australia, for one, specifically gives artists the right to object, in the context of an exhibition, to the ‘manner or place’ in which the exhibition occurs (see s 195AK of the Australian Copyright Act). Canada offers artists the right to object if their work is used in association with a ‘product, service, cause or institution’ (see s 28.2(1)(b) of the Canadian Copyright Act), though doesn’t protect the mere change in location of a work. So it comes down to a question of national choice.

Whether US law can be interpreted as including the ‘derogatory placement’ of a work within the context of another work remains to be seen. But the forecast, at least initially, appears unlikely.

In the meantime, we will be covering moral rights (from a global perspective) in June for our Diploma course in Intellectual Property and Collections, running in London. For more information see here.