Category: Culture

Can “Charging Bull” Artist Have “Fearless Girl” Removed?

When the story first broke about the “Fearless Girl” statue, I didn’t pay it much more attention than I had ever given to the “Charging Bull” that the girl now faces in her defiant, wind-blown pose.  I always assumed the bull simply represents the financial industry the same way I assume “The Garment Worker” statue on Seventh Avenue represents the fashion industry.  Then, when “Fearless Girl” arrived, I figured somebody was making a dual statement—one about women in business, the other about voracious capitalism—and my reaction was somewhere between ambivalence and supportive amusement. I liked the spirit of “Fearless Girl” on first impression but had little interest in all the discussion about it.

Of course, one of the most intriguing aspects of art—and perhaps this is even more pronounced with public art—is that context changes everything.  Appropriation art is usually meaningless without context, and there is an extent to which “Fearless Girl” is an appropriation. Credit for making me think about this goes to author/photographer Greg Fallis, who wrote a blog post after getting some social-media flack for saying that “Charging Bull” sculptor Arturo DiModica “has a point” in requesting that “Fearless Girl” be removed from its installation.

This is of course the outer layer of context:  once a work is in the public eye and has been imbued with a particular significance (in this case feminism tinged with anti-corporatism), then any complaint or comment about the work is apt to be distorted by that lens. And woe to the critic as a result.  Mayor DeBlasio’s office, in response to DiModica’s request to remove the new statue, tweeted “Men who don’t like women taking up space are exactly why we need the Fearless Girl.” On this point, I agree with Fallis that the Mayor’s statement is both true and perhaps entirely beside the point with regard to the nature of DiModica’s complaint.  You may not be surprised that it has something to do with copyright. (And spoiler alert:  I don’t think he has a case.)

I didn’t know until reading Fallis’s blog that Arturo DiModica owns “Charging Bull” and that he produced and initially installed the work at his own expense of roughly $350,000.  An Italian immigrant, inspired by the kind of patriotism unique to immigrants, DiModica began working on the bull in response to the malaise that followed a major financial markets crash in 1986.

The bronze, three-and-a-half-ton work took more than two years to produce; and in the early morning of December 15, 1989, DiModica and his friends “dropped” the bull on Broad Street in front of the New York Stock Exchange—a gift to the city that was, as Fallis eloquently writes, “…maybe the only significant work of guerrilla capitalist art in existence.” The NYSE did not appreciate the gift and had the bull removed; but citizens, the Parks Commissioner, Mayor Koch, and the Bowling Green Association worked to place the “Charging Bull” where it has stood ever since, at the northern end of Bowling Green.

For DiModica, “Charging Bull” was not so much a statement about the swaggering bronze balls of capitalism but was meant, according to the artist’s website, as a “gift of encouragement to New York and the world.”  As symbols go, one might consider that the southern tip of Manhattan—originally colonized by the Dutch—is the birthplace of America’s more entrepreneurial, culturally diverse, and free-spirited nature.  So, the bull charging northward out of this part of the city can certainly be considered in a broader context, but let’s face it:  an eighteen-foot bronze bull standing in the heart of the Financial District can no more escape its capitalist connotations than it can run to the Upper West Side to shop at Zabar’s.

Enter “Fearless Girl,” which was made under very different circumstances.  In short, she is an advertisement for a socially-conscious investment product called SHE, offered by State Street Global Advisors with over $2.4 trillion in assets under management.  The girl standing up to the bull was commissioned by this Wall Street firm, conceived by advertising giant McCann, and purposely “dropped” in front of the bull the night before International Women’s Day.  So, it’s guerrilla art-ish—if corporate backing, ad-agency planning, and city permits count as guerrilla.

What Are DiModica’s Rights?

The commercial nature of “Fearless Girl” may or may not sully her relevance in the eyes of the public, but it is central to DiModica’s complaint and desire to have her removed.  Placed in defiance of the bull, DiModica contends, that the girl changes the meaning and intent of his work from something positive to something negative. In this regard, “Fearless Girl” is appropriating “Charging Bull” by changing the context of the original work; but because this appropriation has been done to promote a product sold by SSGA, attorneys for DiModica are considering whether or not to file suit under a law known as the Visual Artists Rights Act (VARA).

Passed in 1990, the VARA is part of the Copyright Act, §106(A), and it primarily concerns the right of an artist to protect his/her reputation by preventing the misuse of his/her name.  Rights pertaining to reputation of the artist rather than those solely focused on the works are referred to as “moral rights,” and they are a particular subset of intellectual property.   The part of the VARA statute that would theoretically pertain to DiModica’s complaint would be the artist’s right to the following:

(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right.

According an article by Isaac Kaplan about this possible legal case, attorneys for DiModica will look at both the commercial aspect of “Fearless Girl” and at the fact that the city apparently allowed for an extension of the cobblestone foundation to accommodate the new statue.

If the cobblestone base can be considered part of the original work, this would potentially implicate the VARA statute prohibiting “modification,” but that modification has to be “prejudicial to [the artist’s] honor or reputation,” which sounds unlikely to prevail to this layman’s ear.  Moreover, the original circumstances pertaining to the installation of “Charging Bull” in 1989 appear to indicate that only the bull itself belongs to DiModica but not any vision of placing it on a cobblestone base at the tip of Bowling Green.

I suspect the commercial nature of “Fearless Girl” would also be unlikely to persuade a court that the work infringes DiModica’s rights under VARA, though this argument certainly gets into an area that could theoretically harm an artist’s reputation.  In this case, DiModica’s attorneys would presumably have to demonstrate that the appropriation negatively alters the original “meaning” of the work to the extent that it reflects negatively on the artist himself.

On the one hand, it seems like a difficult argument to make that VARA can protect any artist’s originally-intended meaning in any work; and this seems especially tricky with “Charging Bull.” Once a work is placed into public view, the artist no longer gets to decide how it is perceived; and as indicated above, I think any reasonable person who first encounters “Charging Bull” will make the same assumption I always have—that it is very much a celebration of unbridled capitalism.

If this were not the case, “Fearless Girl” would probably never have been conceived as either “pure” art or advertisement.  SSGA, artist Kristen Visbal, and McCann are all clearly relying on a general interpretation of “Charging Bull” as a symbol of aggressive capitalism in order to provide a context for “Fearless Girl” to be saying anything at all. And it seems clear from public response that this is the context in which “Fearless Girl” has been interpreted.

On the other hand, DiModica’s reputation is linked to how people perceive “Charging Bull,” and it would be tough to argue that “Fearless Girl” is not at least a bit of a fuck-you as well as an ad for a corporation.  But, commercial or not, is the work truly a gesture at the meaning DiModica originally intended, or is it a gesture contemporaneous with evolving feelings about capitalism and the role of women in the market?  I would argue that it’s the latter and that any artist who puts a sculpture into a public space cannot hope to control how that sculpture may be viewed against the backdrop of history.

Still, if another corporation were to make a more outlandish alteration of the bull for commercial purposes—like a steakhouse chain paints the classic cuts of meat outlines on the bull’s bronze skin and photographs it—that would certainly seem to be actionable under both traditional copyright infringement and VARA statutes. Not to mention city ordinances prohibiting vandalism.

As Fallis points out, DiModica could take his bull and go home; it is his physical property as well as his intellectual property.  This would leave “Fearless Girl” standing up to the southern tip of Manhattan for no apparent reason, although the fun part of that hypothetical scenario is that viewers would begin to apply new and various meanings to the work as a stand-alone piece.  So, in this regard, “Fearless Girl” is not purely a work of appropriation.

For all the fuss, there is at least a whiff of (yep) bullshit about the fact that “Fearless Girl” is defiantly marketing a product for a giant investment firm. Of course, advertising can be art and vice versa, especially in America; and one could make an argument that, for better or worse, this blend of culture and commerce is part of the same spirit DiModica was tapping into with “Charging Bull.” I can certainly sympathize with the artist’s feelings even while I am dubious about his legal standing under VARA.  Moreover, it turns out that I had a lot to say about a story that didn’t initially grab my attention.  Context changes everything.

Copyright is Not About Defending Old Models

old models

Pretty much since Napster (1999), tech pundits have been presumptuously lecturing pro-copyright creators about economist Joseph Schumpeter’s principle of “creative destruction.”  This is the observation that the market will naturally produce innovations which will displace existing products or services, often rendering the older models obsolete.  Take Schumpeter, add hubris and piles of money, and you get the “disrupt everything” culture of Silicon Valley—one that is so arrogant that it treats anyone who won’t join the disrupt rodeo as a Luddite and a fool.

Typically, anti-copyright pundits like to repeat the buggy whip cliché, claiming that the individuals and institutions who defend copyright are “clinging to the buggy whip industry while automobiles wiz by them on the highway.”  It’s an effective talking point if nobody’s paying much attention.  And since the internet itself hasn’t exactly helped in the paying attention department, the buggy whip analogy became an even easier pitch with the arrival of social media and the 140-character debate.

It’s a message that even many creators and artists bought up to a point; but the misdirection in the analogy distracts many observers from noticing the false comparison being made.  Because if we stick with the metaphor, then it is accurate to say that copyright advocates do not argue the cause of buggy whips in a world of automobiles; they merely assert that transportation is still in demand, regardless of how people and goods are to be conveyed.

The hidden truth in this faux-Schumpeter exercise is the fact that nothing has actually displaced consumer desire for creative works. We still want movies, books, TV shows, music, etc.  What has changed—and only for a segment of the market—is the means of conveyance for these products. The copyright proponent doesn’t really care whether the CD or vinyl album remains relevant—only that music itself is still in demand.  The principle of creative destruction doesn’t even belong in this conversation (though one could argue that a destructive form of creative thinking is at play.)

Apropos of my recent post When Copyright Criticism is Something Else, it is easy to confuse the subject of intellectual property rights with the efforts of an industry or business to “cling” to market share tied to a fading product. That some record labels sought to squeeze every dollar out of CD sales before their obsolescence is to be expected, but this has little to do with the principle that copyright should continue to protect the makers of music—and should be revised wherever it is failing to do so.  Even the mistakes made by the recording industry, through its stumbling adaptation to the internet, should be viewed as separate from a broad defense of copyright’s purpose.

The buggy whip analogy, in this context, is a lie.  And what’s most galling about this particular lie is that it is still aggressively evangelized by the one industry best suited to exacerbate the non-competitive trends that have shaped (or mutated) the American economy since at least the 1980s. The internet industry promises Schumpeter-like results—a vow to repeal and replace, if you will—for authors of creative works, if they are willing to abandon traditional notions of a property interest in their work. Not only has this proven to be a con in the world of creative arts, but the industry’s influence, even among tech entrepreneurs, hardly makes a compelling case for fostering competition and innovation.

A recent article in The Economist reports on a summit held at the University of Chicago, where academics have begun to rethink the state of competition in the American market resulting from the trend away from regulatory influence that began nearly 50 years ago. “Those that make a high return on capital can sustain their returns for longer, suggesting that less creative destruction is taking place. The number of new, tiny firms being born is at its lowest level since the 1970s,” the article states.  A little later, the article says the following about Big Tech:

“An analysis by The Economist in 2016 suggested that about half the pool of abnormally high profits is being earned by tech firms. The big five platform companies—Alphabet, Amazon, Apple, Facebook and Microsoft—earned $93bn last year and have high market shares, for instance in search and advertising. They are innovative but sometimes behave badly. They have bought 519 firms, often embryonic rivals, in the past decade, and may stifle them. The data they gather can lock customers into their products. They may also allow firms to exert their market power “vertically” up and down the supply chain—think of Amazon using information on what consumers buy to dominate the logistics business. Investors’ sky-high valuations for the platform firms suggest they will, in aggregate, roughly triple in size.” [Emphasis added]

The internet industry presents its products and services—and frankly its ideology—as the antidote to decades of competition-killing in the market; and a big bullet point in this message is that a legal framework like copyright is an obsolete barrier stifling your potential. It’s an economic fairy tale meant to imply that if it weren’t for copyright being wielded by big corporations, you would have an easier time becoming the next YouTube star or killer-app developer. If that sounds like an exaggeration, I’ll remind readers of the time Julie Samuels of the EFF said in context to the “future of copyright” (2013) that “We want a thousand more YouTubes.”  I’m not repeating this silly declaration to pick on Samuels per se, but to highlight the fact that copyright advocates are frequently accused of standing in the way of absurd projections dressed up as legitimate market potential.

It is a political tactic—not a serious economic discussion—to predict an impossible outcome and then blame a group or a particular legal regime for preventing that outcome.  And I am intrigued by the extent to which so-called progressives fall for this narrative given how similar it is to the false argument that “all regulation is a barrier to jobs and prosperity.”  There seems to be a blind spot to the reality that the industry, which insists that copyrights are stifling opportunity in the digital age, comprises the companies with some of the worst track records for fostering any innovation they do not own.

It would be wrong not to include global media conglomerates (i.e. major copyright holders) in the universe of entrenched corporations that have benefitted from this trend of consolidation.  No question they have–even to the extent of self-parody as when Tina Fey’s series 30 Rock (2006-2012) consistently lampooned the relationship between product giant GE, its network NBC, and the late-night comedy show Fey’s character writes. But the deregulatory policies, dating back at least a half-century, which have resulted in some of the ill-effects of mega-mergers and massive consolidation, cannot be blamed on copyright law, even if copyright plays a small role in that larger narrative.

For individuals—especially artists and creators—to abdicate copyright in response to  corporate domination is as irrational as giving up the right of free speech because we don’t like the SCOTUS ruling in Citizens United.  Copyright is one of many policy areas in which we must decide either to continue tweaking the system or to abandon the underlying principles altogether.  By inappropriately invoking Schumpeter in this debate, the internet industry seeks to disguise the fact that it has roughly the same attitude toward copyright’s protection of creators as the extraction industries have to environmental law’s protection of the biosphere.  Perhaps it’s time for copyright skeptics to recognize that the most outdated aspect of this whole conversation is their stupid buggy whip analogy.

Photo by DelmasLehman

Online Harassment & The Internet Experiment

In last weekend’s New York Times Magazine, staff writer Jenna Wortham asks Why Can’t Silicon Valley Fix Online Harassment? Citing some alarming statistics from a 2104 Pew Research study, she writes …

“… 40 percent of adult internet users have dealt with online harassment. And those numbers go up among young adults (especially women) and nonwhite users. Women are significantly more likely than men to report being stalked or sexually harassed on the internet, and 51 percent of African-Americans and 54 percent of Hispanics said they had experienced harassment, compared with 34 percent of whites.”

Online harassment is no joke. At scale, it can be emotionally devastating and legitimately terrifying for victims. It has been known to cause economic and social harm and to catalyze both physical assault and suicides. While we extoll the virtues of connectedness fostered by an “open” internet, harassment is the mutant howling in the basement nobody wants to talk about. And Wortham rightly observes that the monster is a byproduct of Silicon Valley’s unique blend of new-money libertarianism built on a foundation of faded, hippie idealism—incongruous doctrines that were, for many, synthesized in the manifesto A Declaration of the Independence of Cyberspace, delivered by John Perry Barlow at Davos in 1996.

But if online harassment is a disease and the first step to recovery is admitting there’s a problem, then perhaps that first step is to properly contextualize Barlow’s Declaration as the naive and petulant outburst it was. A moment of whimsy rather than the foundation for a sustainable, or even humane, proposal. Nevertheless, the belief that cyberspace remains some magical realm beyond the normal boundaries of society continues to delay rational discourse on any number of problems specifically caused or exacerbated by the technology.

Although harassment will occur on a public forum like Twitter, it often begins by brewing on a site like 4Chan, a “discussion” board populated by mostly males from pre-teen to mid-30s, who, in every sense of the cliché, have too much time on their hands. And although everyone on 4Chan is anonymous—it is in fact the site where the hacktivist group Anonymous began—they might collectively be seen as that mutant creature borne by Barlow’s Declaration. Like most adolescents, the thing they seem to hate most is being told what to do—hence the the harassment-filled shitstorm known as “Gamergate.”

Although I would never condone harassment, I think I understand how at least some of it starts. This blog has very occasionally elicited accusations of racism or sexism because there are people in the world who will filter literally any topic through such lenses, even when there is no rational basis for doing so. If I were an adolescent who spent inordinate time among other adolescents in a forum like 4Chan, the temptation to retaliate against these absurd accusations by weaponizing overt racism or sexism—at least for my own amusement—could be very great. And once it begins, it’s easy enough for a little spark to become a flash fire.

In all likelihood, the majority of trolls out there are young men who harass for the lulz—an expression derived from the acronym LOL. Think of this class of trolls as easily excitable chimpanzees who will gather around a target of ridicule and pile on, but who are also easily bored and distracted by the next shiny object. So, if the target of their ridicule or cruelty doesn’t respond, this group usually returns to its natural state of online gaming and metaphorically throwing feces at one another.

But if the target of their ridicule does respond, this only increases the opportunity for lulz, which means the chimps remain engaged and incentivized to keep raising the bar of harassment of their target. Hence, the truly hideous invocations of rape and murder—complete with photographic depictions of these acts—that are so commonly employed by harassers of this nature. From this phenomenon comes the common-sense directive Don’t Feed the Troll, which is fine up to a point but can also be a form of victim-blaming as the volume and virulence of the harassment increases.

Wortham notes the apparent futility of “counterspeech,” which she describes as “the practice of bystander intervention that overpowers aggressors in an attempt to deter them.” I’m not at all surprised the EFF endorses this self-governing tactic as a “solution,” seeing as the organization (co-founded by Barlow) remains mesmerized by the fallacy that the internet naturally enables good to triumph over evil as long as pesky rules don’t get in the way.

I’m also not surprised that the two organizations Wortham highlights as designed to deploy “counterspeech” seem to be finding the method ineffective. If the general rule of thumb is Don’t Feed the Troll, then an attempt to surround a victim in a barrier of Twitter-hugs is like dipping her in chocolate and Cheetos. It’s only going to whip the trolls into a feeding frenzy. As stated above, it is important to remember that a large segment of the people who engage in this kind of harassment HAVE NOTHING BETTER TO DO. This is a hobby for many a young male, who really needs to get a life; and it is therefore difficult for people who do have lives to outlast or overwhelm the harassers.

Presumably, there are casual harassers as well—people who don’t spend time seething on 4Chan, but who obey an impulse to add their 140 characters of vitriol when they see a trend piling onto a target they don’t like or who has pissed them off. And I suppose we have to assume at this point that people can be harassed by bot swarm as well. But the fact that a real human being can be remotely and anonymously hounded to the point of being harmed or harming herself is a very real problem we have yet to confront in any substantive way. What is the responsibility of one voice in a million that feeds the proximate cause of a suicide? I don’t know, but it sure as hell belies Barlow’s dreamy assumptions.

Of course the thesis question Wortham asks is this: Can Silicon Valley do anything about online harassment? In theory, why not? As stated in several other posts, the internet companies are telling a half truth at best when they claim to have free speech obligations. They may wish to support free speech, and that’s fine, but the individual platforms are no more bound by the First Amendment than a retail store or restaurant in the physical world. Wortham is right to view the deciding factors as both ideological and financial, and in that order—a story of what happens when hippies become billionaires.

The policy positions and Terms of Service that still flow from Barlow’s Declaration have made the internet into a computer model of a social experiment which—to an extent—places people in philosopher John Locke’s hypothetical state of nature. Like Locke, the model then asks whether or not Man really needs to make a bargain with the State in order to protect his sovereignty as an individual. In 1996, Barlow declared the internet to be a “home of Mind,” a place where the legal conventions of statehood (namely law) have no purpose—an ideal based on the assumption that people are basically good and law is exclusively coercive.

But in 1689, in his Second Treatise of Government, Locke argued that Man in a state of nature (i.e. without government) is more free but also more vulnerable to human predators, who may enslave him, kill him, or take his property. Hence, the bargain one makes with the State is to trade as little freedom as possible in exchange for relative security. Thus, if a woman in a Target store were harassed in Twitter style (i.e. told by a swarm of men that they hope she gets raped and killed), the security and police who will soon arrive on her behalf are a manifestation of that Lockean bargain.

In principle, the major platform owners can take steps to mitigate online harassment, and they will likely discover this ability the moment there is a financial incentive to do so. But in the meantime, we might learn something from the computer model, which reveals exactly what can happen in a stateless and lawless “community.”

Consider the rash of hate crimes and threats following the election—all presumably committed by people who believed Trump’s presidency granted them permission to act upon latent antipathy. But how many Swastikas have been spray-painted by committed Nazis and how many by teenagers doing it for the lulz? Hard to say, but it’s likely that both motivations are present and that this is one way in which real life comes to resemble cyberspace rather than the other way around. And that may prove to be the most dangerous phenomenon of all.