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Fighting Over the Fearless Girl
Marks Gray Dec 9, 2021 in Intellectual Property
When an artist creates a piece of work on commission, who owns the intellectual property rights of that piece? If the piece becomes a public work of art, does that change anything about the ownership? What if it goes viral?
The answer to all these questions… It depends on the contract.
The Creation of the Fearless Girl
This is exactly what's in dispute surrounding the Fearless Girl statue, who has held her stance outside the New York Stock Exchange since 2018. The statue was commissioned by State Street Global Advisors (SSGA), a global financial firm, in 2016. The intention was to draw attention to their gender-progressive investment portfolios. Kristen Visbal created the bronze statue, and it was installed in 2017 – initially without any further explicit contract.
In April 2017, Visbal and SSGA signed a contract divvying up intellectual property rights – the Master Agreement. According to this, Visbal owns the copyright to the sculpture Fearless Girl, which give her the exclusive right to reproduction, distribution, modification and public display of the sculpture. SSGA is the sole trademark proprietor of the Fearless Girl as a brand. The trademark registration for FEARLESS GIRL is registered in Class 35 for promoting public interest in and awareness of gender and diversity issues and issues pertaining to the governance of corporations and other institutions and in Class 6 for funds investment; financial management services; financial investment advisory services; financial administration of donor advised funds for charitable purposes; accepting and administering monetary charitable contributions; financial information.
Additionally, SSGA gets royalty-free licensing of Fearless Girl copies – two-dimensional or three-dimensional – in connection with either of these conditions:
Gender diversity issues in corporate leadership or the financial sector
SSGA products, services, or messaging
It is this Master Agreement that hangs in the balance at this time, because Visbal has contested the parameters of her licensing restrictions in court. This comes after suits and countersuits between Visbal and SSGA over the sale of artwork replicas.
A Sea of Replicas Causes Problems
After installation, Fearless Girl drew a flurry of attention from the media and general public. While some criticized her creation as a corporate stunt, many others lined up to take photos with her at Bowling Green and, later, in front of the NYSE. It appears that the ability to cash in on the viral possibilities are too enticing for either party to let things be.
Visbal has created and sold several versions of Fearless Girl since her Wall Street inception:
In 2018, she sold a replica to the owner of the Grand Hotel in Oslo, Norway.
Visbal brought a resin replica of the statue to the Los Angeles Women's March in January 2019.
Also in 2019, she sold a replica to Maurice Blackburn, a social justice group known for suits against financial institutions.
Until halted by lawsuits, Visbal accepted online orders for mini-statuettes.
All of which are protected under the copyright registration but SSGA cited these instances as trademark violations. They believe that Visbal is weakening and diluting Fearless Girl's message in that:
The buyers she has accepted pertain to gender diversity issues and the financial sector.
She doesn't screen online statuette buyers at all, meaning that the replicas could be put to use by someone in either of the above categories.
In SSGA's view, Visbal is producing copies of the statue, in blatant disregard of their licensing and trademark agreement, to take advantage of the viral window of profit opportunity.
An Artist Spreading Her Message?
From Visbal's point of view, she wants to spread the gender equality message of Fearless Girl. She does not see her worldwide replicas to be in conflict with SSGA's trademark brand. Visbal doesn't believe that SSGA can own the issue of gender diversity.
How has Visbal defended herself against SSGA's lawsuits? Initially, she claimed fraudulent inducement. That is, she argued that SSGA misrepresented the terms of the contract and convinced her to sign the contract.
She cited that SSGA conveyed itself as "genuinely committed to gender diversity and women's equality." She may be focusing on the $5 million lawsuit SSGA settled over its own gender pay gap.
But the courts struck down Visbal's fraud defense. Nothing seemed to be factually amiss or misleading in SSGA's contract.
Now, Visbal asserts two claims to nullify her contractual obligations:
Two versions of the Master Agreement exist – SSGA filed one with the city and kept a separate one with different licensing restriction terms.
The Department of Transportation and State Street negotiated the agreement's terms outside of Visbal's knowledge.
SSGA has answered that the DOT and intellectual property agreements are two separate contracts.
Are Visbal's intentions as idealistic as she says?
In light of its viral popularity, selling copies of the statue has certainly provided her a financial boost which is allowed under her copyright registration. From her website fearlessgirl.us, she sold over a hundred statuettes for about $6000 each. (SSGA also claims that this domain violates the trademark.) Her larger replicas have garnered around $250,000 per piece. While awaiting lawsuit resolution, she has continued work on NFTs based on Fearless Girl as a legally viable way to sell the image.
SSGA brought up how Visbal has ignored a formal breach notice as well as any attempts to communicate about the trademark violations. In their complaint against her, they cited how she accepted $28,000 from the Coast Guard for a commissioned statue that was never delivered.
In light of this portrait, is Visbal actually concerned with spreading the message of gender equality, or is she trying to turn a maximum profit from unexpected viral success? Are these aims exclusive? Is SSGA any different?
More importantly, should Visbal be judged even if she is playing the game? Isn't the moral of the statue, after all, that women can play the same financial games as men?
If this is the case, Visbal still needs to learn the #1 rule of the art business: make sure you completely understand what you are giving up when you sign a contract involving your intellectual property assets. You never know when your creative work may go viral and become extremely lucrative.
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