Rare US moral rights ruling by Seventh Circuit: no protection for Chicago garden

Author: Jeff John Roberts

Chapman Kelley v Chicago Park District, United States Court of Appeals for the Seventh Circuit, Nos 08-3701 & 08-3712, 15 February 2011

Journal of Intellectual Property Law & Practice (2011), doi: 10.1093/jiplp/jpr082, first published online 1 June 2011

The Seventh Circuit ruled that ‘living art’ in the form of a massive public garden was not entitled to moral rights protection because the work lacked both fixation and an author.

Legal context

Sections 602 and 603 of The Visual Artists Right Act of 1990 provide that ‘the author of a work of visual art’ has the right:
(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and 
It further explains that:
A ‘work of visual art’ is –
(1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer […]

For years, artist Chapman Kelley delighted the denizens of Chicago with ‘Wildflower Works’, a garden situated in Grant Park, the city's signature public space on the shores of Lake Michigan. The garden was in the form of two enormous ovals bursting with plants and flowers that were planted and tended to by hundreds of volunteers. City officials hailed Kelley's work as a ‘new form of “living” art’ and the press and the public praised the display which changed colours throughout the season and increased in brightness in the ovals' centres.

‘Wildflower Works was a hit’, said the Court.

But nothing lasts forever and one day the Chicago Parks Department sought out new delights. Wildflower Works would have to make way for the new Millennium Park. Over Kelley's objections, the city reduced the garden to less than half its original size and transformed its oval borders to rectangular ones.

The indignant artist argued that his work was both a painting and a sculpture protected from ‘distortion, mutilation or other modification’ under the Visual Artists Rights Act (known in America as ‘VARA’). Feeling civic no longer, he sued for $25 million in damages.


The District Court agreed with Kelley that Wildflower Works was indeed a painting and a sculpture for the purposes of VARA.

The judge added, however, that Kelley's creation lacked sufficient originality to qualify for protection. The work was not original, he said, because the artist was not ‘the first person to ever conceive of and express an arrangement of growing wildflowers in ellipse-shaped’ enclosures.

The judge also found that Wildflower Works in any case fell under an exception in the VARA statute that excluded from protection works that were ‘site specific’.

On appeal, Kelley challenged the originality and site-specific findings.

The Seventh Circuit affirmed the ruling but for very different reasons and, in doing so, upbraided the district judge for bungling basic principles of copyright and misunderstanding the relation between VARA and the overall Copyright Act.

The Court noted that VARA contained no blanket ‘site-specific’ exception, and that the categorical exclusion was only for works incorporated into buildings. More seriously, the unanimous Appeals Court took exception to the originality finding, noting that the threshold for what is original is ‘minimal’. Kelley may indeed not have been the first to conceive of such a garden but using this as a reason to deny protection is wrong because it ‘mistakenly equates originality with novelty’.

These remarks, though, amount to obiter dicta because the Appeals Court found a more fundamental problem with Kelley's copyright claim:
The Park District has not challenged the District Court's conclusion that Wildflower Works is a painting and a sculpture. This is an astonishing omission… 
The real impediment to copyright here is not that Wildflower Works fails the test for originality (understood as ‘not copied’ and ‘possessing some creativity’) but that a living garden lacks the kind of authorship and stable fixation normally required to support copyright… 
Simply put, gardens are planted and cultivated, not authored. A garden's constituent elements are alive and inherently changeable, not fixed.
This is a garden, not a work of art
The lack of fixation in Wildflower Works was fatal to Kelley's copyright claim but, the Court noted, not necessarily to all topiary endeavours. It cited a 43-foot flowering work known as ‘Puppy’ by artist (and frequent copyright litigant) Jeff Koons. The Court noted that ‘Puppy’ is not analogous because it is assembled by a huge metal frame with an irrigation system.
Wildflower Works is different. It is quintessentially a garden; ‘Puppy’ is not.
(The Court said it was not pronouncing on whether ‘Puppy’ was eligible for copyright, but will never have to determine the question—the work is conveniently located in Spain.)

Practical significance

The Seventh Circuit's ruling on fixation would seem to be the right one with the lower Court's originality analysis amounting to a glaring error.

The Appeal Court's ruling can be summed up in brief as a reminder that, before an artist can claim VARA protection, she must first surmount the basic requirements of copyright.

The judgment is lucid and entertaining for its copyright analysis but also, and in equal measure, as an exposition on the on-going distrust of the moral rights doctrine in America.

The Appeals Court, in rejecting the claim, took pains to explain that the range of works protected under VARA was significantly narrower than what can be protected by copyright in general.

This is evidenced, it said, by the fact that VARA refers to the specific nouns ‘painting’ and ‘sculpture’ rather than broader adjectives. A work
cannot just be ‘pictorial’ or ‘sculptural’ in some aspect or effect, it must actually be a ‘painting’ or a ‘sculpture.’ Not metaphorically or by analogy, but really.
At other points in the decision, the Court takes pains to emphasize that VARA is narrow and a special form of ‘extra’ protection.

This is a work of aet,
not a garden
Whatever one's position on the merits of moral rights, the Seventh Circuit's ruling is refreshing for its candid discussion of how awkwardly the civil law doctrine fits into American jurisprudence.

At the outset of the decision, the Court acknowledges that the US Congress had to virtually hold its nose to implement VARA, doing so only to comply very belatedly with Berne Convention obligations.

The result, said the Seventh Circuit, is that ‘VARA introduced a limited version of this European doctrine into American law, but it is not an easy fit.’

Based on this history and on the tone of the Seventh Circuit's ruling, moral rights advocates may have to wait a long time before the doctrine gains any traction in US jurisprudence.

In March, Kelley filed an appeal, asking for a full panel of the Seventh Circuit to hear the case.

1 comment:

  1. John Viramontes - Council for Artists' Rights7 June 2011 at 05:38

    Much thanks Jeff John Roberts for the article. Regarding the appellate court pettion to rehear the case 'en banc' which Kelley filed, it was DENIED because, "no judge in active service has requested a vote on the petition for rehearing en banc and all of the judges [3]on the original panel have voted to deny rehearing." Also, an amicus curiae brief filed by the Volunteer Lawyers for the Arts (New York City) in support of Kelley's petition for rehearing 'en banc' was DENIED by the appeals court. Kelley is in the process of filing a petition this year with the Supreme Court of the United States. More about Kelley's case at his website, artists' rights advocacy tab, http://www.chapmankelley.com/2/Asset.asp?AssetID=37996&AKey=jlbdk6w2 John Viramontes - Council for Artists Rights