… had subverted the bull’s meaning, which Mr. Di Modica defined as “freedom in the world, peace, strength, power and love.” Because of “Fearless Girl,” Mr. Siegel said, “‘Charging Bull’ no longer carries a positive, optimistic message,” adding that Mr. Di Modica’s work “has been transformed into a negative force and a threat.” …The lawyers accused State Street Global of commissioning “Fearless Girl” as a site-specific work that was conceived with “Charging Bull” in mind. They said that they had improperly commercialized Mr. Di Modica’s statue in violation of its copyright. They asserted that the city had violated his legal rights by issuing permits allowing the four-foot-tall “Fearless Girl” to stand across from the 11-foot bronze bull without Mr. Di Modica’s permission. [Italics added]
*** Incidentally, the Times story notes that Di Modica “created the sculpture ‘Charging Bull’ nearly 30 years ago [and] copyrighted and trademarked [it].” Ouch. This is one of my pet peeves: It is improper to use copyright as a verb in this way (as in “He copyrighted the sculpture,” or “You should copyright that song,” or the like), and it sows much confusion about how copyrights (and trademarks, too — though that’s the subject for another day) actually work to use the word that way.It used to make sense to talk about “copyrighting” a work of art; prior to the enactment of the 1976 Copyright Act, you had no copyright rights in a work that you created until you did something, namely (a) “publishing” the work, and (b) registering it with the Copyright Office. To “copyright” a work, then, meant doing these things, at which point your work was “copyrighted” (i.e., protected by copyright).But that all changed in the 1976 Act; works are “copyrighted” (i.e., protected by copyright) the moment they are created. You don’t have to do anything to get that protection; it’s inherent, the law now says, in the work itself, and the copyright rights exist from the moment of the work’s creation. It is thus nonsensical to say that Di Modica created the sculpture and “copyrighted” it; it’s already “copyrighted,” as soon as it had been created. Using copyright as a verb obscures that very fundamental copyright principle, making people think that there’s something you have to do, steps you have to take, in order to obtain copyright, when in fact there are none.
Alert copyright nerds might be wondering whether Di Modica can obtain any remedy from the Visual Artists Rights Act of 1990 (VARA), which gave certain “works of visual art” additional rights of “attribution and integrity” over and above the ordinary protections against reproduction, distribution and display. The short answer here, too, is almost certainly no. To begin with, Di Modica’s work, which was created in 1989, only obtains protection under the 1990 provisions if he had not transferred title to the sculpture itself prior to 1990 — as he may well have done. But more to the point, the statute protects only against “any intentional distortion, mutilation, or other modification of the work” (and only if the distortion, mutilation or modification “would be prejudicial to [the artist’s] honor or reputation”), and it would seem impossible to argue that Visbal distorted or mutilated or modified the work in any way.