A few weeks ago, as the long-term future of the “Fearless Girl” statue was debated by the Landmarks Preservation Commission, a commissioner questioned whether its use as an advertisement by State Street Global Advisors should. affect how it is regulated as public art. The commission’s legal advisor, Mark Silberman, stepped in and philosophically suggested that all art has elements of publicity, as creators seek to “speak for themselves.”
While Andy Warhol would have appreciated the observation, there are serious precedents in this case that should concern the creators, regardless of their opinion on the merits or significance of the statue. Blasio’s outgoing administration’s core position – that corporate control over public art poses no significant dilemmas – allowed New York City to rewrite its boilerplate art deal to favor State Street and facilitate additional advertisements placed on and around the sculpture. The negative consequences extend beyond the reallocation of public space for private use, in New York City allowing the abuse of artist Kristen Visbal and her copyright.
By disregarding the artist’s interests or opinions, the city is setting extraordinary precedents with “Fearless Girl” exploding fair customs and practices. Without consulting the artist, the city allowed State Street to place a sign declaring that the work is about gender diversity on boards of directors, rather than equality in general. During the statue’s unprecedented five years as a temporary installation, no one has ever contacted the artist to authorize new advertisements in the form of additional banners and installations, on the status of permits or on decisions by move the work.
Although Visbal was legally justified in establishing its copyright, State Street filed a lawsuit claiming not that she violated her deal by selling copies, as many mistakenly assume, but that some of her clients allegedly had tangential connections to finance, somehow damaging their brand. State Street made these claims even though they have now placed the job where the NYSE installs the logos of hundreds of other companies to photograph with “Fearless Girl.” In practice, the lawsuit means State Street is using its nearly infinite resources to indefinitely prevent the artist from making sales. It’s a bullying tactic, and it should motivate the city government to stand up for the arts and sever relations with State Street. Visbal sees his situation as a warning to all artists and creative workers about how companies can use trademark lawsuits to crush copyright.
The most important recognition here is that State Street Global Advisors never commissioned “Fearless Girl” as “work for hire,” as many reporters mistakenly assume. Ironically, by suing the artist, the company allowed the true story of the work’s creation to emerge from the court records.
With the election of Donald Trump in 2016, women’s anger and resistance were at the center of the national political debate, and the McCann advertising agency realized that they could take advantage of the times. They approached Microsoft, as well as State Street and other customers. According to legal documents, in late 2016, a separate company acting through McCann contacted Delaware-based sculptor Kristen Visbal and told her that she would need a statue of a provocative young girl “taking position ”for a“ thug ”, temporary installation facing the sculpture“ Charging Bull ”on the occasion of International Women’s Day.
Visbal claims McCann’s affiliates refused to sign a formal agreement, saying they had no sponsor or budget to pay him more than his minimum expenses. As she was intrigued by the noble purpose and the highly visible location, she agreed despite the unusual conditions. According to court documents, just days before the clay model was completed, he was told that a major financial firm, State Street Global Advisors, would be involved in one form or another.
After her unveiling, due to the image alone, “Fearless Girl” went viral as expected. Immediately, a petition and a campaign to keep the sculpture longer arose. And, on March 26, Mayor Bill de Blasio announced that a one-year permit would be granted by the Department of Transportation (DOT).
Visbal, who had never yet signed a deal with State Street, fought off a multi-entity blitz to wrest his copyright. She claims in court records that she was even refused the original sculptural mold and that she was not given access to the statue to perform a conservation scan. Under these circumstances, she claims that she was fraudulently pressured into signing a deal that grants a limited mark and lets State Street take over the New York casting. Only a few weeks after signing this agreement, the Ministry of Transport finally allowed him to perform a preservation analysis.
Meanwhile, before her State Street deal was finalized, she had no idea the company and the city had worked together to rewrite the masterpiece art deal to diminish her rights. Remarkably, it now appears that lawyers accepted deviations from the standard text after longtime DOT public art administrator Wendy Feuer already signed on. Since the final deal retains Ms Feuer’s earlier signature, it is still unclear whether she consented to the changes (DOT declined to clarify).
Standard boilerplate language centers the rights of artists. It ensures that artists make key decisions about their work and that public art is not used for advertising purposes. Once a relationship between the city and an artist is established, catch-all language ensures that the public interest remains the primary concern.
If New York City was truly supportive of creative workers, State Street’s decision to sue would be a stigma, a sign the company is seeking to treat the statue as an advertisement rather than a public work of art. The city may accept the artist’s offer of an artist proof cast of the sculpture, freeing it to form part of the city’s collection and leaving future decisions to be made with democratic input. . This would finally end the use of the statue as a corporate advertisement and take businessmen and bureaucrats out of the game of defining the meaning of the work.
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