Child Custody Battle

The sculptor who created the “Fearless Girl” statue is being sued by the investment firm that commissioned the piece, in a legal battle that hinges on the question of what it means to own a work of art.

“Fearless Girl” was unveiled in Lower Manhattan in March, 2017, as a form of corporate agitprop, by State Street Global Advisors, a Boston-based asset-management firm that is the world’s third largest, which wanted to make a statement for International Women’s Day. (The firm as resolved to raise awareness about the relative dearth of female leadership at large corporations, especially as measure in board seats.)

The bronze casting of “Fearless Girl” was created by sculptor Kristen Visbal, who was commissioned by the McCann New York advertising agency, on behalf of State Street.

The statue quickly went viral, attracting worldwide attention and drawing thousands of tourists to what had originally been intended as its temporary home at the foot of Broadway — in front of “Charging Bull,” the famous Arturo Di Modica sculpture that has been snarling and pawing the ground just north of Bowling Green since 1989.

But keeping “Fearless Girl” became a cause célèbre, and elected officials quickly moved to triple the statue’s one-week residency, and then extended it by months, eventually keeping it in place for almost two years.

In December, the piece was moved to a new, permanent home at Broad and Wall Street, where it stares defiantly at the New York Stock Exchange.

As “Fearless Girl” was transformed from a meme into a movement, however, Ms. Visbal found herself deluged with requests for replicas of her most famous work. In at least half a dozen cases, she obliged, creating duplicates bronzes that were two feet tall, rather than the four-foot height of the original. These were sold to collectors for as much as $6,500 each.

In papers filed last week with the New York State Supreme Court, State Street charges that, “Visbal is weakening and adulterating the ‘Fearless Girl’ message by selling unauthorized copies of the ‘Fearless Girl’ statue for profit in material breach of several agreements she entered into with SSGA. Her unauthorized buyers misuse the ‘Fearless Girl’ image and SSGA’s ‘Fearless Girl’ trademark to promote their own companies and for their own corporate purposes.” The firm also alleges that, “the delivery of Visbal’s replica into the hands of unauthorized buyers will cause substantial and irreparable harm to ‘Fearless Girl’ and her message, as well as SSGA, its reputation, and its rights.” The same papers argue that the corporation, “has poured its ‘heart and soul’ into ‘Fearless Girl’ and the important ideals she represents.”

Interestingly, the complaint filed by State Street does not cite specific contractual language that would bar Ms. Visbal from engaging in the transactions that the firm describes. Rather, the brief says that, “under New York law, implicit in every contract is a covenant of good faith and fair dealing. This implied covenant prohibits contracting parties from frustrating the purpose of the contract, even if the contract does not specifically prohibit the conduct.” Elsewhere in the same pleading, State Street argues that, Visbal’s conduct equates to bad faith, such that she broke the spirit of the contracts.”

Whether Ms. Visbal retains any rights to the work she created, or “Fearless Girl” is owned (in every iteration) by the corporation that commissioned the work will likely be determined by the courts. And that decision may come down to the question of whether the statue is actual art, or merely a form of advertising. If it is deemed to be the latter, State Street will likely prevail, for the legal system has long held that intellectual property related to marketing  belongs to the business entity that paid for it — assigning few rights to the creative minds that conceive it.

If “Fearless Girl” is judged to be a work of fine art, however, it may fall under the jurisdiction of the Visual Artists Rights Act (VARA), a 1990 federal law that granted artists a new form of interest in their work. Under this legal theory, an artist retains “moral rights” in a piece he or she created, regardless of who holds the copyright, or has physical ownership of the piece.