Why Fearless Girl Is at the Center of a Custody Battle Between Sculptor and Client

Fearless Girl's reign as one of the 21st century's top cultural icons seems all but assured, but the legal dispute between the sculptor who designed the statue and the investment firm that sponsored it shows no sign of stopping. In the latest development last month, Judge Gregory H. Woods of the U.S. District Court for the Southern District of New York dealt a victory to the artist, Kristen Visbal, denying a motion for dismissal by investment management firm State Street Global Advisors (SSGA). Visbal claims the firm interfered with her contract, infringed upon her copyright and committed fraud by not giving her proper attribution for the work at all times, amounting to an attempt to "rob her of making a living from her art." These accusations form part of a counterclaim in response to a breach-of-contract lawsuit State Street filed on Valentine's Day 2019 seeking to forbid Visbal from selling Fearless Girl replicas to "unauthorized buyers." The bronze statue of a young girl with her hands on her hips, head tilted defiantly upward against the Charging Bull of Wall Street appeared overnight in New York's Bowling Green park in March 2017. She instantly became an international sensation, a call to action for greater gender equality and female leadership in companies, but also a target for mockery—and a major source of potential revenue for both Visbal and SSGA. [kickout id="1"] "We have a meritorious claim against [SSGA], and the judge’s denial of their motion speaks for itself," Visbal wrote in an email to Adweek. A GoFundMe account called Fearless Girls Won’t Be Bullied has also been set up by “friends of Kristen Visbal” to raise money for her legal fees. State Street noted in its own statement to Adweek that the judge's denial of the company's motion to dismiss only concerns the court's decision to grant Visbal permission to further amend her counterclaim, which she first filed in April. "Our original motion to dismiss Ms. Visbal’s counterclaims was not denied on the merits," an SSGA spokesperson wrote. "It was denied by the court purely on technical and procedural grounds stemming from the fact that Ms. Visbal requested and was given permission by the court to amend her answer and counterclaim. Now that she has filed an amended pleading with the court, we will soon file a renewed motion to dismiss the counterclaims." Who owns Fearless Girl? State Street's primary complaint against Visbal is that she breached "several agreements" by selling copies of the statue to buyers in Australia and Norway, thereby allowing them to "misuse" an image and name owned by SSGA in order to "promote their own companies." The filing also stated that Visbal breached the agreement by bringing a replica to the 2019 Women's March in Los Angeles, and that she did not create the Fearless Girl image on her own but, rather, sculpted a design developed by SSGA, its agents and third-party consultants. In March, the judge issued a restraining order blocking Visbal from selling replicas of the statue to a buyer in Germany and others. SSGA insists it owns the rights to both the Fearless Girl name and the statue itself. Both are associated with its Gender Diversity Index, or SHE Fund, which invests in women-led companies. Visbal does not dispute this fact but states, in her counterclaim, that she "retained ownership of the copyright in Fearless Girl" as well as the right to sell replicas as long as the buyers are not financial institutions or companies that will then use them to "promote diversity in corporate governance." Therein lies the legal dispute, as Visbal argues that making money from identical replicas or smaller reproductions of the statue does not amount to a violation of any agreement—and that SSGA misled her regarding the basis of the agreement before she agreed to its conditions. "The Master Agreement, Copyright License Agreement and Trademark License Agreement should be rescinded because Plaintiff fraudulently induced Visbal to sign the Agreements," according to her filing, claiming that these agreements resulted from "deceit or misrepresentations" on the part of SSGA. The firm, Visbal's counterclaim argues, is now trying to rewrite the original agreement and interfere with her ability to sell likenesses of the work. Visbal also disputes that SSGA helped develop the Fearless Girl concept, stating the statue was originally commissioned by advertising firm McCann New York, whose clients included SSGA. The statue was nearly complete, according to Visbal, when SSGA "saw an opportunity to associate Fearless Girl with its brand and deflect some of the negative publicity" stemming from investigations into claims that SSGA offered lower pay to female and minority employees. The company later paid $5 million to more than 300 staffers as part of that complaint. "Even though SSGA insisted on being recognized as the commissioner of the work, SSGA had nothing to do with the creation or concept of Fearless Girl and only became involved upon completion of the clay model to be cast in bronze," according to Visbal's claim. A McCann spokesperson referred a request for comment to SSGA. According to Visbal's most recent counterclaim, the first contract was drawn up about two months after Fearless Girl's debut, with SSGA stating it would "not hinder" her ability to sell copies or use the statue for not-for-profit initiatives and that shared "Gender Diversity Goals" provided the underpinning of the parties' agreement. The sculptor goes on to accuse SSGA of violating its own agreements by failing to give her proper attribution when moving the statue to its new home in front of the New York Stock Exchange in December 2018, and refusing to grant permission for her to sell copies to activist groups and nonprofit organizations, among other alleged breaches. Her latest filing, embedded in full below, came one day after Judge Woods denied SSGA's attempt, initially filed on July 1, to dismiss all seven of Visbal's counterclaims. These documents followed a series of more than 100 letters, orders and motions to file amended complaints. As noted in the firm's statement above, the next step in the case will most likely be a new motion to dismiss the sculptor's updated counterclaim.