Seventh Circuit Concludes Garden Fails to Satisfy "Authorship" and "Fixation" Requirements for Copyright

Chapman Kelley, a nationally-recognized artist known for his paintings of landscapes and flowers, obtained permission to install a wildflower display in Grant Park in downtown Chicago.  The display, called "Wildflower Works," was promoted as "living art" and included two elliptical flower beds, each of which were nearly as large as a football field, featuring a variety of native wildflowers edged with borders of gravel and steel.

Wildflower Works existed for some 20 years (much more detailed history in the Seventh Circuit's opinion) but in 2004 the Chicago Park District made changes to the display, decreasing it from approximately 66,000 square feet to approximately 30,000 square feet and remaking the elliptical flower beds into rectangles.

Kelley then sued the Park District for, in part, violating his moral rights under the Visual Artists Rights Act of 1990 ("VARA"), specifically, the right "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[.]"

Following a bench trial, the District Court found for the Park District on Kelley's VARA claim, concluding that although Wildflower Works could be classified as both a painting and a sculpture and therefore qualified as a work of visual art under VARA, it was insufficiently original for copyright, a foundational requirement for Kelley's claim.  Alternatively, the District Court concluded that Wildflower Works was site-specific art and that VARA did not apply to such art, following the First Circuit's decision in Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128 (1st Cir. 2006).

The Seventh Circuit affirmed the judgment in favor of the Park District on the VARA claim but for different reasons than those stated by the District Court.

The Seventh Circuit first took issue with the District Court's conclusion that Wildflower Works was both a painting and a sculpture and therefore a work of visual art as defined in VARA.  The court emphasized that the definition in VARA was meant to be limiting with respect to the types of works to which VARA applied:

VARA's definition of "work of visual art" operates to narrow and focus the statute's coverage; only a "painting, drawing, print, or sculpture," or an exhibition photograph will qualify.  These terms are not further defined, but the overall structure of the statutory scheme clearly illuminates the limiting effect of this definition.  Copyright's broad general coverage extends to "original works of authorship," and this includes "pictorial, graphic, and sculptural works."  17 U.S.C. 102(a)(5).  The use of the adjectives "pictorial" and "sculptural" suggests flexibility and breadth in application.  In contrast VARA uses the specific nouns "painting" and "sculpture."  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 "sculpture."  Not metaphorically or by analogy, but really.

Although clearly doubtful of the District Court's conclusion, the Seventh Circuit ultimately did not resolve the question because the Park District had not challenged the conclusion, an omission that the court called "astonishing."

Instead, the Seventh Circuit turned to the question of whether Wildflower Works merited copyright protection in the first instance, ultimately concluding that it did not.  The court disagreed with the District Court's conclusion that Wildflower Works lacked sufficient originality.  Rather, it concluded that the impediment to copyright was "that a living garden lacks the kind of authorship and stable fixation normally required to support copyright."

 A living garden like Wildflower Works is neither authored nor fixed as those terms are understood in copyright law, the Seventh Circuit concluded:

Simply put, gardens are planted and cultivated, not authored.  A garden's constituent elements are alive and inherently changeable, not fixed.  Most of what we see and experience in a garden--the colors, shapes, textures, and scents of the plants--originates in nature, not in the mind of the gardener.  At any given moment in time, a garden owes most of its form and appearance to natural forces, though the gardener who plants and tends it obviously assists.  All this is true of Wildflower Works, even though it was designed and planted by an artist.

Of course, a human "author"--whether an artist, a professional landscape designer, or an amateur backyard gardener--determines the initial arrangement of the plants in a garden.  This is not the kind of authorship required for copyright.  To the extent that seeds or seedlings can be considered a "medium of expression," they originate in nature, and natural forces--not the intellect of the gardener--determine their form, growth, and appearance.  Moreover, a garden is simply too changeable to satisfy the primary purpose of fixation; its appearance is too inherently variable to supply a baseline for determining questions of copyright creation and infringement.

Thus, because Wildflower Works was neither "authored" nor "fixed" for purposes of copyright, it could not qualify for moral-rights protection under VARA.

The Seventh Circuit also took issue with the District Court's adoption of the First Circuit's holding in Phillips that all site-specific art is excluded from VARA, questioning the First Circuit's interpretation of VARA.  Nonetheless, although the court clearly had doubts as to the First Circuit's holding, it ultimately did not decide the question because it resolved Kelley's VARA claim on other grounds.

The case cite is Kelley v. Chicago Park District, Nos. 08-3701 & 08-3712 (7th Cir. Feb. 15, 2011).

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