Controversia en Materia de Derechos de Autor en Wallstreet
It’s an iconic image for our generation: a fearless girl staring down a charging bull – a symbol of America’s capitalist renewal. But does it affect the rights of the man who sculpted the bull? That question shines a spotlight on the issue of moral rights.
The back story
The upset surrounding the positioning of Kristen Visbal’s 110-kilogram Fearless Girl Statue in front of Arturo Di Modica’s three-tonne bronze bull near New York’s Wall Street, shines a light on the issue of moral rights in copyright.
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 following:
the right to attribution – the right to be recognized as the author of a work;
the right to object to false attribution – the right not to be named as the author of a work that you did not create;
the right to object to derogatory treatment of a work – in some countries copyright owners can object to any addition, deletion, alteration to or adaptation of a work that would distort or mutilate the work, or that negatively affects the honor or reputation of the author;
the right to decide whether he work should be published and in what form.
Two moral rights, however, had been included in Article 6bis of the multilateral Berne Convention for the Protection of Literary and Artistic Works. As countries signed up to the Berne Convention, they were obliged to include provisions on the right of attribution and the right of integrity in their domestic law. But how they do so, and the degree of protection offered, varies from country to country. For example, countries adopt different tests for determining whether a work has been distorted in such a way that it is prejudicial to the author’s honor or reputation. In some it is a subjective determination based on the view of the author, while in others it is an objective determination.
“Technology has given questions relating to moral rights an urgency and relevance,” says Sundaran Rajan, visiting scholar at Stanford
Even within the European Union, where copyright rules have been harmonized to a large extent, some countries allow creators to waive their moral rights by contract but in others, such private deals are unenforceable. Some member states grant employees moral rights in works they created in the course of their work; in others, these rights are enjoyed by the employer. In others, “work-for-hire” attracts no moral rights.
When the United States finally acceded to the Berne Convention in 1988, it relied on various provisions of state and federal law rather than enacting a specific moral rights statute in its Copyright Act. The Visual Artists Rights Act (VARA), passed by Congress two years later, expressly provides moral rights for works of visual arts, but the category of works of visual arts accorded those rights is narrow, says June Besek, Executive Director of the Kernochan Center for Law, Media and the Arts at Columbia Law School. VARA only protects paintings, drawings, prints, sculptures and still photographic images produced for exhibition in limited editions of up to 200 copies that are signed and numbered by the artist.
June Besek says there is general agreement that VARA would not protect the Charging Bull sculpture from having its Fearless Girl rival placed nearby. Nor is the spat likely to lead to a groundswell of support for enhancing moral rights in the United States. “I suspect [the public’s] sense of whose rights should be protected, and how, was influenced by the symbolic significance of Fearless Girl,” she explains.
Time for reform?
Even if Arturo Di Modica’s moral rights claims did not elicit widespread sympathy, is there a case for extending moral rights in the United States? Many believe there is. In addition to the rights of creators, Mira T. Sundara Rajan, a visiting scholar at Stanford Law School, argues that it is ultimately a public interest issue, given that so many important copyright works make it into the public domain. “People can’t enjoy a work of art if it is damaged or if they don’t know the real identity of the author,” she says.
But others are wary. “I believe that moral rights are important – but as the scope of copyright law has expanded dramatically, it is important to note that not all works of art are of equal value,” says Irene Calboli, visiting professor of law at Singapore Management University, citing software products, consumer packaging and warranties as examples of work protected by copyright. “The US idea of limiting moral rights to visual art has some merit. Perhaps it should be expanded to films and books as well, but not to architectural work, which is functional as well as potentially being a work of art.” She says that in countries such as Germany, which grants moral rights to the architects of buildings that meet a certain aesthetic standard, the courts have been forced to try to balance the practical needs of building owners against the moral rights of architects.
June Besek believes that cultural differences and commercial realities explain some of the historical differences in approach between the United States and Europe when it comes to moral rights. When the United States was considering adhering to the Berne Convention, certain copyright-intensive industries were very concerned about the possibly disruptive effect of granting creators a right of integrity, she says, especially if the law did not allow parties to waive their rights or the ability to waive was significantly limited. “While European scholars argued that their copyright industries flourished with moral rights, there is no question that the US is much more litigious than most other countries.”
But there are signs that the United States is considering its position on moral rights.
In 2016, the Center for the Protection of Intellectual Property at George Mason University co-sponsored a symposium on Authors, Attribution, and Integrity: Examining Moral Rights in the United States with the US Copyright Office, which at the time was led by Maria Pallante. Her interest in the subject saw her recommend further study of moral rights during testimony before Congress in 2014.
“The fact that the US has decided to look at it at all is nothing short of a miracle, especially because there is not much lobby power behind it,” says Sundara Rajan, who organized a conference on moral rights in Glasgow, UK, last year, attended by officials from the US Copyright Office. Even so, she doubts that change will happen in the United States anytime soon.
The digital impact
One potential driver of reform of moral rights more generally is the changing way we make things. “The number of people who create things is very large now thanks to technology: it allows people to create in a way that they couldn’t do before,” says Sundara Rajan. “The focus of moral rights is ensuring that someone’s work is not edited or adapted in a way that was not intended. The online environment makes it very easy to do that and so technology has given questions relating to moral rights an urgency and relevance.”
The arrival of blogs, video-sharing platforms and social media means that everyone can be a published author, performer or photographer whose work can be seen and shared by millions of people. The same digital tools also enable anyone to make music mashups for public consumption or upload literary homages or derivative artworks. But the digital revolution has also seen the development of technology likely to make it easier to attach an author’s name to a digital work in a way in which it cannot easily be removed.
June Besek says that these technological changes make it important to consider how best to protect moral rights in the 21st century. She warns that while technology is advancing so rapidly, now may not be the best time to harmonize, despite wishing to see a stronger right to attribution in the United States. “Even those authors who aren’t looking for a financial reward for others’ use of their works often do want recognition,” she says.
Berne, TRIPS and moral rights
Article 6bis of the Berne Convention for the Protection of Literary and Artistic Works requires signatories to grant authors two moral rights: (i) the right to claim authorship of a work (often known as the right of attribution); and (ii) the right to object to any distortion or modification of a work, or other derogatory action in relation to a work, which would be prejudicial to the author’s honor or reputation (sometimes called the right of integrity).
The Berne Convention requires these moral rights to be independent of authors’ economic rights and in many countries they remain with the authors even after they have transferred their economic rights.
When member states of the World Trade Organization (WTO) began work on a multilateral agreement on intellectual property in the 1980s (what became the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS)), they recognized that the Berne Convention provides, for the most part, adequate basic standards of copyright protection. They decided that WTO member states must comply with the substantive provisions of the 1971 Berne Convention. However, such was the degree of divergence on the issue of moral rights, member states agreed that they need not be bound by Article 6bis of that Convention.