Seventh Circuit Denies Moral Rights Protection to Chicago Garden
By Albert Wang – Edited by Matthew Gelfand
Kelley v. Chicago Park District, Nos. 08-3701 and 08-3712 (7th Cir. Feb. 15, 2011)
The Court of Appeals for the Seventh Circuit affirmed the Northern District of Illinois’ judgment in favor of the Chicago Park District on Chapman Kelley’s Visual Artists Rights Act (VARA) claim, while reversing the court’s judgment in favor of Kelley on his claim of implied contract.
The Seventh Circuit, while affirming on the VARA claim, rejected the district court’s finding that Kelley’s garden was unoriginal and that VARA categorically excluded site-specific art. The court held that the garden was ineligible for copyright not for want of originality, but of authorship and fixation. As a work not subject to copyright, the garden was not covered by VARA’s grant of moral rights. In addition, the court attacked the district court’s finding that the garden constituted a painting and sculpture for VARA purposes. In reversing on the contract claim, the circuit court held that the commissioner lacked the power to bind the city through her representations.
The Visual Artists Rights Act, or VARA, provides artists with a limited set of moral rights over certain types of art. Importantly, VARA supplements the copyright statute; it only applies to works that are subject to copyright in the first instance.
Chapman Kelley, a painter and gardener, attempted to assert VARA rights over Chicago Wildflower Works, a planned garden that he had installed in Chicago’s Grant Park in 1984. The display was designed for immediate aesthetic appeal, as well as dynamism as the flowers changed with the seasons. Kelley’s permit from the Park District Board of Commissioners expired in 1994, but in 2004 Park District Commissioner Margaret Burroughs told Kelley that no new permit would be needed.
Later that year, the city reconfigured Wildflower Works, excising part of the display and changing the basic shape of the flowerbed, over Kelley’s objections. Kelley then sued under VARA for infringement of his right of integrity, a right against modification that would be “prejudicial to [Kelley’s] honor or reputation,” 17 U.S.C. § 106(a) (2006). He also brought a contract claim, asserting that Burroughs’s statement had created a contract by implication.
The district court held that Wildflower Works was not original and thus did not qualify for copyright, including protection under VARA. On the contract claim, it awarded Kelley nominal damages of one dollar. The Seventh Circuit conceded that Wildflower Works probably passed the relatively low bar that copyright sets for originality, but assailed Kelley’s copyright on the threshold matters of authorship and fixation.
Although authorship and fixation are also relatively low barriers in the copyright law, the court held that “the law must have some limits; not all conceptual art may be copyrighted.” Slip op. at 31. In this case, the court held that natural forces had more of a role than any human “author” in determining the form of a planned garden. As a collection of living, “inherently changeable” organisms, the garden strained even an expansive definition of authorship. Furthermore, the court applied a narrow reading of the terms “painting” and “sculpture” in VARA’s scope, attacking sua sponte the idea that a garden could receive VARA protection through analogy to traditional art media.
On the contract claim, the court held that Commissioner Margaret Burroughs was acting outside her authority in giving Kelley her verbal approval, and was barred by the Illinois Park District Code from binding the Board in contract. 70 Ill. Comp. Stat. 1205/4-6 (2005).
This case helps to clarify the scope of VARA and define the limits of what courts will credit as ‘art’ for copyright purposes. Though the court stopped short of setting a bright-line rule, the decision indicates that copyright’s definition of creative expression is not necessarily coextensive with that of the art community.
Albert Wang is a 2L at the Harvard Law School.