Fearless Girl meets Australian Intellectual Property Law
Fearless Girl is the name of a bronze statue of a strong and confident girl created by Kristen Visbal and installed in New York City in 2017. The statue was funded by financial company State Street US and its unveiling was timed to coincide with a marketing campaign by State Street US that sought to improve gender diversity in senior business leadership. In 2019 the artist entered an agreement with Maurice Blackburn Lawyers (MBL), an Australian law firm, to supply a replica of the Fearless Girl statue for installation in Melbourne as part of MBL’s campaign for gender equality and equal pay. MBL secured the sponsorship of two superannuation funds, HESTA and Cbus, for its campaign. Here is a copy of an invitation to the launch event unveiling the statue in Melbourne: State Street US was not happy about this and, together with its Australian subsidiary State Street Australia, sued MBL, HESTA and Cbus, making a wide range of claims, almost all of which failed. The Federal Court judgment can be found here. The judgment is lengthy, and I will just comment on a few points of interest relating to intellectual property. Contracts and copyright State Street US claimed that the Australian companies had infringed copyright by reproducing and communicating to the public 2D copies of the Fearless Girl (in promotional material such as the invitation above). This was because it had an exclusive copyright licence from the artist. An exclusive licence of copyright gives the licensee the right to sue for copyright infringement. The difficulty for State Street US was that its licence was narrowly limited to:
- two-dimensional copies of the artwork in connection with gender diversity issues in corporate governance and in the financial services sector; and
- in connection with State Street US and its products and services.