By Dr Kalyan C. Kankanala
The Wall Street Bull is charging; charging angrily and aggressively. The natural response of an ordinary, prudent person would be to take flight. But that doesn’t hold true for the Fearless Girl, who stands up to the Bull with no sign of fright or alarm on her face. The Fearless Girl is, in fact, a representation of women empowerment and strength, and received the anticipated response when it was placed before the Charging Bull on Wall Street.
To the sculptor Kristen Visbal’s delight, the soft-featured Fearless Girl received an overwhelming response, and women groups requested the New York Mayor to extend its stay beyond the Women’s day. The Mayor agreed and decided to keep the Fearless Girl opposite the Charging Bull until February 2018. This decision, however, did not please the author of the Charging Bull sculpture, Arturo Di Modica, who felt that the Fearless Girl’s positioning depraves his work and derogates his honour and reputation. He vowed to take legal action against the Mayor and the sponsors on copyright and trademark grounds (among others) if the Fearless Girl is not removed. The Mayor denied; this started a debate about the legal rights of Di Modica.
Moral Rights under the Copyright Law
Moral Rights were at the forefront of many discussions and articles with respect to Di Modica’s legal rights. The Berne Convention for the Protection of Literary and Artistic Works, which harmonises the national copyright laws to some extent, contains provisions relating to Moral Rights, but the law on moral rights is not the same in all countries. While countries like France grant very strong moral right protection, countries like the USA grant limited moral rights cover. Countries like India and the UK fall somewhere between the two in the strength of their moral right regimes.
Moral Rights in India
Independent of the economic rights of the author, Section 57 of the Indian Copyright Act provides two moral rights:
Paternity Right: The right to be attributed as an author of the work; and
Integrity Right: The right against distortion, mutilation, modification, and any other act that is prejudicial to the author’s honour or reputation
Some countries include the right of publication and retraction among the moral rights of authors, but the Indian copyright law does not recognise the said rights.
Moral rights are valid until the validity of the copyright term in India. The section is silent about whether an author can waive his moral rights, and many entertainment contracts include moral right waivers generally or under certain circumstances such as digital/online distribution and live performances. In other words, authors of entertainment content such as artists, lyricists, composers, and writers waive their moral rights and agree for the removal of attribution and modification of their works. Questions with respect to impact on honour and reputation can be very subjective, and most entertainment contracts exclude several activities with respect to works from the scope of moral rights enforcement.
The mural ambiguity
In the Amarnath Case (2005), the Delhi High Court decided on infringement of moral rights with respect to a bronze sculpture. In 1957, Government of India commissioned a sculpture from Amarnath Sehgal, a renowned sculptor, for Vigyan Bhavan. Amarnath created a bronze mural sculpture, which was placed on a wall in the lobby of the Bhavan. The sculpture spanned a height of forty feet and a length of one hundred and forty feet. In 1979, the Government removed the mural and placed it in a store room without informing Amarnath.
Aggrieved, Amarnath approached the Delhi High Court alleging that the Government’s act infringes his moral rights. After reviewing the facts of the case, the Court came to the conclusion that Amarnath’s moral rights were violated and ordered the Government to hand over the sculpture languishing in the warehouse to the sculptor. The Court also granted damages of five lakh rupees to Amarnath.
The Court also reviewed the state of the sculpture before arriving at its conclusion. Parts of the bronze mural were missing, and the sculpture was languishing in the warehouse without any maintenance. The said state, as per the Court, amounted to destruction and mutilation of the work. The Court stated that the removal of the sculpture from the body of work of the sculptor prejudiced the author’s honour and reputation, and caused detriment to the integrity of his work. As per the Court, the Government’s act also detrimentally impacted the integrity of India’s cultural heritage.
Di Modica’s Moral Rights Under Indian Copyright Law
Di Modica is the author of the Charging Bull, and he will, therefore, hold copyrights and moral rights under the Indian Copyright Act. The only question will be whether Fearless Girl facing the Charging Bull amounts to distortion, mutilation, modification, or any other act that prejudices Di Modica’s honour or reputation. Moral right infringement analysis has two basic prongs: assessment of whether the work has been distorted, mutilated, modified, or acted upon in any manner, and whether such an act is prejudicial to the author’s honour or reputation.
The distortion, mutilation, modification or any other act with respect to the work may either be tangible or intangible. In Amarnath’s case, there was a tangible distortion and mutilation of the bronze mural sculpture. It was removed from display and placed in a warehouse, where it was not cared for. Furthermore, portions of the sculpture were missing, making its complete revival difficult. By its tangible actions, the Government contributed to the destruction of the sculpture.
The integrity of a work may also be destroyed by intangible means. For example, placing a criminal’s painting next to a painting of Buddha does not result in any tangible damage to Buddha’s painting, but causes intangible destruction by diminishing the value of the painting. The intangible destruction of a work can be the result of a wide array of actions ranging from adding extrinsic elements to the work’s environment to conducting activities around the work that impact the message conveyed by it.
Based on the facts, no tangible damage has been done to Di Modica’s Charging Bull as the bull has not been touched or neglected in any manner. The bronze sculpture continues to be the subject of due physical care and occupies the place it did earlier. However, a new element in the form of Fearless Girl has been introduced into the Bull’s surroundings, raising questions of intangible damage. When seen through the eyes of the author, the introduction of the new element definitely distorts and modifies the Charging Bull in an intangible manner. It reduces the aggression of the bull and dilutes its value by weakening its message.
The said intangible distortion of the sculpture and its message can prejudice Modica’s honour and reputation. With the introduction of the Fearless Girl; the Charging Bull, which originally connotes the message of strength and power of the people assumes the connotation of male domination and chauvinism. The Fearless Girl transforms the positive, inspirational Charging Bull into a negative, oppressive one. The fearless Girl represents women empowerment, but it does so by degrading the Bull. One can argue that social interest and public interest must make way to Di Modica’s moral rights, but is it fair to make an inspirational or positive statement about women by distorting and damaging an author’s work and degrading his reputation?
Whenever they had to decide between public interest and individual interest, most Indian Courts have leant in favour of public interest. This is especially pertinent in intellectual property cases. When economic rights clash with moral rights, most Courts will likely lean towards moral rights. When moral rights clash with the public interest, Courts will likely lean in favour of public interest.
If the facts were tested before an Indian Court today, Di Modica may not walk out of the Court smiling.
Featured Image Credits: Daily Dot
Dr Kalyan C. Kankanala manages the largest new age intellectual property firm, BananaIP Counsels, headquartered at Bangalore, India. In addition to helping clients maximise business value from intellectual assets, Dr Kalyan also consults for United Nations Industrial Development Organization (UNIDO), and teaches at premier institutions such as National Law School of India University, Bangalore, and Indian Institute of Management, Bangalore (IIMB). Dr Kalyan is also a renowned author and novelist.