Custody Battle Looms Over Fearless Girl

State Street Global Advisors Trust Co. (SSGA) , the investment firm behind the “Fearless Girl” statue placed near the New York Stock Exchange, is pursuing legal action against Kristen Visbal, the sculpture’s creator for alleged breach of contract and trademark infringement.

SSGA commissioned Visbal to create Fearless Girl allegedly to promote gender fairness and female empowerment in investment and to highlight its gender equality fund. Detractors said it was to wash SSGA’s image after SSGA agreed to pay $5 Million in 2017 in a settlement to more than 300 women and 15 Black employees in senior positions who received allegedly substantially less pay than their white male colleagues.

Kristen Visbal’s or SSGA’s “Fearless Girl” (photo by Anthony Quintano/Flickr)

Whatever the purpose, the statue was a viral sensation and has become a symbol of female empowerment. It garnered over 1 billion views in just the first 12 hours of its unveiling on International Women’s Day. Visbal began selling reproductions of the statue for $6,500 each in a limited run of 1,000 miniatures. According to Visbal’s website advertising these copies, Visbal has already sold at least 137 editions of the statue. She also sells signed copies of the original photo of the statue by the famous Wall Street statue of a charging bull for $5,000.00 (unsigned go for a mere $500). While this is pricey, its not everyday a sculpture attracts this much praise and notice. So who can blame an artist for trying to profit off one of their works that has so touched the mainstream? SSGA can.

SSGA originally filed suit in NY Supreme Court but Visbal’s lawyers removed it to Federal Court, specifically, the Southern District of New York. It claims that under its contract with Visbal, the company and not her owns the copyright in the statue. They also claim it has become a trademark of the company. According to the complaint, the design was based on guidelines and input given to Visbal by SSGA. They point out that when Visbal wanted to use a replica at the Women’s March in Los Angeles she sought their permission to do so. They claim in their suit that they refused to give her permission but she used a replica anyway.

Photo of the $6,500 mini version from fearlessgirlus.com/reproductions

That’s certainly pretty strong evidence that at least at one point Visbal believed she need permission to use a replica of the statue. In the end the contract between the parties is what will control. While it seems illogical that an artist would be unable to use their own work, if it was created as a “work for hire” a legal term that provides an exception to the rule that whomever created the work owns copyright in the work. Work for hire does not apply to sculptures unless created by an employee of the company which Visbal is not. In its suit, SSGA is instead relying on its contract with Visbal which expressly set forth the rights each other has in the statue. The contract, which SSGA claims is confidential, is not attached to the lawsuit so I cannot comment on its specific terms.

From the complaint however, it appears that the contract provides a license for the copyright and trademark in the statue but with limited use. SSGA claims that the statue must be used only to promote female leadership and empowerment in the financial world. That is why they were upset when they learned that the replica was commissioned by Maurice Blackburn a large Australian law firm whose specialties include personal injury, class actions, superannuation, insurance, and financial services. Maurice Blackburn’s website touts that it is “Australia’s #1 [plaintiff] law firm.”

Just from reading the complaint, it appears SSGA has a strong claim against Visbal as if the contract is clear there should be no question as to what she is allowed to do with the statue and its design. Visbal may herself have been fearless, but her conduct may not have been legal. The case is in the discovery stage so I will keep you posted how this shapes out.

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2 Comments

  1. I don’t follow SSGA claiming copyright in the sculpture. That seems cut and dried as she isn’t an employee and standalone sculptures can not be WFH. Is this just because litigators like to throw all kinds of BS claims into their complaints ?

    • It could be that but its likely the agreement said that they own the copyright. She could have assigned it to them by contract. Problem is the complaint does not track contract language and they have asked the judge to make it confidential so its not available for the public to see on PACER. So we don’t know its terms but I see no other way for them to have a claim.

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