Fearless Girl Meets Charging Bull: Copyright and the Regulation of Intertextuality

Abstract

This article approaches the Fearless Girl/Charging Bull controversy as a case study in how copyright law regulates conditions of interaction between existing artistic works and new ones, in order to protect the value and integrity of the former without diminishing production of the latter. To assess the merits of sculptor Arturo DiModica’s legal claims in light of the policies underlying copyright law, I turn to the theory of intertextuality and the work of two narrative theorists — M.M. Bakhtin and Gerard Genette. Bakhtin’s concept of dialogism and Genette’s concept of hypertextuality are especially useful for understanding how the intertextual relationship between Fearless Girl and Charging Bull fits within the range of work-to-work and author-to-author relationships with which literary theory and copyright law are mutually concerned.

Analyzing the Fearless Girl controversy through the concepts of dialogism and hypertextuality surfaces a clash between DiModica’s Continental view of copyright as a guarantor of authorial supremacy and the utilitarian orientation of U.S. copyright law, which gives authors less control over “second-degree” texts than DiModica would like. My principal argument is that U.S. copyright law is hospitable to intertextuality by design — much more so than Continental author’s rights law, which encodes what Bakhtin would characterize as a monologic aesthetics centered on the work as an extension of authorial personality. By giving narrow scope to moral rights and broad scope to fair use, in particular to critical and transformative secondary uses, U.S. copyright law limits the ability of artists like DiModica to control the public’s perception of their works by dictating the terms on which other artists interact with them.

Keywords: copyright, moral rights, derivative work, narrative theory, art law, VARA, fair use