Weeks ago, as the long-term future of the “Fearless Girl” statue was debated by the Landmarks Preservation Commission, one commissioner questioned whether its use as advertising by the State Street Global Advisors corporation should affect how it is regulated as public art. The commission’s legal counsel Mark Silberman intervened and suggested philosophically that all art has elements of advertising, since creators seek to “talk about themselves.”
While Andy Warhol would have appreciated the observation, there are serious precedents in this case that should concern creative workers, no matter their opinion of the statue’s merits or meaning. The basic position of the outgoing de Blasio administration — that corporate control of public art poses no significant dilemma — allowed New York to rewrite its boilerplate art agreement to favor State Street and facilitate additional advertisements placed on and around the sculpture. The negative consequences extend beyond the repurposing of public space for private gain, into New York City enabling the abuse of the artist Kristen Visbal and her copyright.
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By failing to consider the artist’s interests or opinions, the city is setting extraordinary precedents with “Fearless Girl” that blow up custom and fair practice. Without consulting the artist, the city allowed State Street to place a sign that declares that the work is about gender diversity on corporate boards, rather than equality more generally. During the statue’s unprecedented five years as a temporary installation, no one ever contacted the artist about authorizing new advertising in the form of banners and supplemental installations, about the status of permits, or about decisions to move the work.
Despite Visbal being legally vindicated in establishing her copyright, State Street initiated a lawsuit asserting not that she violated her agreement by selling copies, as many improperly assume, but that some of her customers had alleged tangential links to finance, somehow damaging their trademark. State Street made these claims even though they have now placed the work where the NYSE installs logos of hundreds of other companies to be photographed with “Fearless Girl.” In practice, the lawsuit means that State Street is using its almost infinite resources to make it indefinitely impossible for the artist to make any sales at all. It is a bullying tactic, and it should motivate city government to defend the arts and sever relations with State Street. Visbal sees her circumstance as a warning to all artists and creative workers about how corporations can use legal actions related to trademark to overwhelm copyright.
The most important recognition here is that State Street Global Advisors never commissioned “Fearless Girl” as a “work for hire,” as many journalists mistakenly assume. Ironically, by suing the artist, the company has allowed the true story of the work’s creation to emerge from court filings.
With the election of Donald Trump in 2016, women’s anger and resistance were at the center of the national political discussion, and advertising agency McCann realized they could take advantage of the zeitgeist. They solicited Microsoft, as well as State Street and other clients. According to legal documents, in late 2016, a separate firm acting through McCann contacted Delaware-based sculptor Kristen Visbal and told her that they would need a statue of a defiant young girl “taking a stand” for a “rogue,” temporary installation facing the “Charging Bull” sculpture on International Women’s Day.
Visbal claims that McCann’s affiliates refused to sign a formal agreement, stating that they had no sponsor and no budget to pay her more than her minimal expenses. Since she was intrigued with the lofty purpose and the highly visible location, she agreed despite the unusual conditions. According to the lawsuit filings, just days before the clay model was completed, she was told that a large financial firm, State Street Global Advisors, would be involved in some form.
After its unveiling, due to the image alone, “Fearless Girl” became a viral sensation as intended. Immediately a petition and campaign to keep the sculpture longer appeared. And, on March 26, Mayor Bill de Blasio announced a year-long permit would be granted by the Department of Transportation (DOT).
Visbal, who still had never signed any agreement with State Street, fought off a blitz from several entities to rip away her copyright. She asserts in court filings that the original sculptural mold was even withheld from her, and she was not given access to the statue to make a preservation scan. Under those circumstances, she claims she was pressured on a fraudulent basis into signing an agreement that granted a limited trademark and let State Street assume the New York casting. Only weeks after this agreement was signed did the Department of Transportation finally allow her access to make a preservation scan.
Meanwhile, before her agreement with State Street was finalized, she had no idea that the company and the city worked together to rewrite the boilerplate art agreement to diminish her rights. Remarkably, it now appears that lawyers agreed to deviations from the standard text after long-time DOT public art administrator Wendy Feuer had already signed. Since the final agreement retains Ms. Feuer’s earlier signature, it is still unclear whether she consented to the changes (DOT has declined to clarify).
The standard boilerplate language centers artist rights. It ensures that artists make the key decisions about their work, and that public art is not used for advertising. Once a relationship between the city and an artist is established, the boilerplate language ensures that public interest remains the overriding concern.
If New York City truly supported creative workers, State Street’s decision to sue would be a stigma, a sign that the company seeks to treat the statue as an advertisement rather than as a public artwork. The city can accept the artist’s offer of an artist’s proof casting of the sculpture, freeing it to become part of the city’s collection and letting future decisions be made with democratic input. This would finally end the statue’s use as corporate advertising and get businessmen and bureaucrats out of the game of defining the work’s meaning.