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You Call that Art?

Flower Display Doesn’t Make the Cut for Copyright

Protection

The Visual Artists Rights Act of 1990 (VARA) amended the Copyright Act to give artists certain rights of attribution and integrity in paintings, draw- ings, prints, sculptures and exhibition photographs. In Kelley v. Chicago Park District, the U.S. Court of Appeals for the Seventh Circuit clarified the scope of VARA to an extent. Although attorneys may welcome this clarification, certain artists probably won’t.

The roots of the case

In 1984, Chapman Kelley, a nationally recognized artist known for his rep- resentational paint- ings of landscapes and flowers, received permission from the Chicago Park District (CPD) to install an ambitious wildflower display in downtown Chicago’s Grant Park. Wildflower Works comprised two elliptical flower beds, each nearly as big as a football field, featuring a variety of native wild- flowers and edged with borders of gravel and steel.

By 2004, the display had deteriorated, and the CPD dramatically modified it by:

- Substantially reducing the garden’s size,

-Reconfiguring the oval flower beds into rect- angles, and

-Changing some of the planting material.

Kelley then sued the CPD under VARA for violating his “moral rights” — the right of artists to prevent, during their lifetimes, any distortion or modification of their work that would be “prejudicial to [their] … honor or reputation.”

The district court rejected Kelley’s moral-rights claim. Although the court found that Wildflower Works could be classified as both a painting and a sculpture — and, therefore, a work of visual art under VARA — it found the display lacked sufficient originality to be eligible for copyright protection under VARA.

Court plants its foot

The Seventh Circuit agreed that the garden display wasn’t eligible for copyright and, therefore, was not protected under VARA. But it came to this conclusion based on grounds different from those used by the district court.

For the appellate court, the problem wasn’t a lack of originality but the lack of authorship and fixation. “Gardens are planted and cultivated, not authored,” wrote the court, and the various elements of a gar- den are alive and inherently changeable.

Although the Seventh Circuit conceded that a human determines the initial arrangement of plants, it found that this isn’t the kind of authorship required for copyright. Seeds and seedlings might be considered a medium of expression, but they originate in nature, and natural forces determine their form, growth and appearance — not an “author.” Moreover, a garden is simply too changeable to satisfy the primary pur- pose of fixation: supplying a baseline for determining questions of copyright creation and infringement.

Dig at the district court

Although the CPD didn’t challenge it, the Seventh Cir- cuit also questioned the district court’s finding that Wildflower Works was both a painting and a sculpture entitled to VARA protection as a work of visual art.

The Seventh Circuit explained that, “to qualify for moral-rights protection under VARA, Wildflower Works cannot just be ‘pictorial’ or ‘sculptural’ in some aspect or effect; it must actually be a ‘painting’ or a ‘sculp- ture.’ Not metaphorically or by analogy, but really.”