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123456789 TRANSCRIPT OF CD ENTITLED:10Oral Argument. September 10, 2009.11Chapman Kelley vs. Chicago Park District.1242 min. Disc 1 of 1.13141516171819202122

AUDIOTAPE TRANSCRIPTION2 (Pages 2 to 5)

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1 FEMALE VOICE: Good morning, everyone, and2welcome. Our first case of the morning is3No. 08-3701, Chapman Kelley versus Chicago Park 4District.5 MR. MARCUS: Good morning, your Honors. Thank 6you for your time today. My name is Micah Marcus.7I'm here representing Chapman Kelley on his appeal8from the district court.9 My client's appeal centers around two10major issues. First, whether the district court11erred by finding that my client's work, Wildflower12Works, was not entitled to protection under the13Visual Artists Rights Act because it was not14sufficiently original as to be entitled to15protection under the Copyright Act.16 If it pleases the court, I'll refer to17the Visual Artists Right Act as VARA, as I find18that far easier to say repeatedly.19 The second issue is whether the district20court erred in finding that VARA itself does not21protect site-specific art and, therefore, does not22protect -- did not protect my client's work,

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1Wildflower Works. I would respectfully submit to2this panel that the district court erred in both3cases.4 There is also a counter-appeal in this5issue in which the City of Chicago has taken the6position that the district court erred in finding7that Judge Coar found on behalf of my client for8breach of contract based upon the argument that9Margaret Burroughs, as a commissioner of the Park 10District, was unable to bind the City with respect11to its obligations to Mr. Kelley.12 That's the basis of the case, but that's13not what this case is about. Respectfully to my14client and to this panel, this case extends far15beyond Chapman Kelley and Wildflower Works.16 This case is about artists nationwide17who look to the federal courts for protection of 18their intellectual efforts and their art that19undoubtedly brings value to society at large.20Rights that would be placed in serious jeopardy21were the district court's decision allowed to22stand.

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1 Respectfully, if our society is going to2be understood to value art, the federal courts have3to be ready to protect that art and protect the4statutes which were put in place by Congress to5protect those rights.6 I'll first turn to the issue of the7application of VARA. As I said, the district court8determined that Wildflower Works was not entitled9to VARA protection because it didn't satisfy the10initial element of being able to be protected by11the Copyright Act.12 The court found -- and this has not been13appealed -- that it was a work of visual art, is14either a painting or a sculpture, and would15otherwise be entitled to protection but for this16lack of ability to be copyrighted because it was17not original.18 And in that particular point the court19stated as follows:20 "Is it the elliptical design, the size,21the use of native instead of non-native plants, the22environmentally sustainable gardening system method

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1to which vegetative management systems apparently2refers?3 Kelley leaves this court to assume that4he is the first person to ever conceive of and5express an arrangement of growing wildflowers in an6ellipse shaped enclosed area in the manner in which7he created this exhibit."8 Respectfully, that implies a standard of 9originality that is simply untenable and10unenforceable in our system.11 The concept of original as provided by12the Supreme Court in Feist is a minimal degree of 13creativity, a mere spark of intellectual labor that14separates the work of art as original versus a15copy.16 Now, under this standard I can assure17this panel if they were to look at the copyright18registry and they wanted to look up paintings of a19woman on a canvas, I would assure you there'd be20millions. If they wanted to look up painting of a21fruit bowl, if they wanted to look up sculpture of 22a man or a book.

AUDIOTAPE TRANSCRIPTION3 (Pages 6 to 9)

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1 The mere fact that a form of art has2been performed before does not mean that that type3of art can never be copyrighted after. It is not4the --5 UNIDENTIFIABLE JUDGE 1: What do you mean, it6has to be independently created? It could be --7someone else could have done something else, but as8long as it's original with this artist, is that9enough?10 MR. MARCUS: That is correct. It's not a11standard of novelty or new art. I mean, if that is12the standard, there would be no further copyright13protection in art ever. Unless we come up with a14completely and new utter concept of what art is, we15will no longer have copyright protection moving16forward. And that just simply can't be the right17standard.18 In response to this, the City simply has19no response. They can't justify the court's20position on his view of originality, and instead21simply says it wasn't original. Well, why not?22There was a huge degree of artistic labor put into

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1this.2 This was Mr. Kelley's artistic vision3for the past -- for over 20 years before creating4Wildflower Works. He was known for creating5elliptical shapes surrounding wildflowers on6paintings and other forms.7 JUDGE SYKES: Well, the statute doesn't8require a huge degree of creativity or originality.9It's a very, very low threshold.10 MR. MARCUS: I would agree, your Honor. And11to the extent that this panel would accept it, this12is the minimal amount of creativity required, then13I'll move on to my next subject.14 JUDGE SYKES: The harder question is the15site-specific art question.16 MR. MARCUS: Okay. Well, moving on to the17site-specific art question, I would also suggest18the district court erred in that matter as well.19 The district court simply applied20Phillips, the case of Phillips, without any type of 21analysis or independent thought, other than the22fact that Phillips decided that site-specific art

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1would not be entitled to protection. And the2Phillips case, effectively, was wrongfully decided.3 UNIDENTIFIABLE JUDGE 1: Site specific?4 MR. MARCUS: Site-specific art.5 UNIDENTIFIABLE JUDGE 1: Now, that's not6statutory, is it?7 MR. MARCUS: No, that's not statutory, your8Honor. That was -- that was the definition created9by the first circuit in Phillips. And I would -- I10would state also that I don't believe that the use11of that definition even applies to this case.12 UNIDENTIFIABLE JUDGE 2: But that public13presentation exception is statutory, and that's14pretty broad, isn't it?15 MR. MARCUS: I -- I don't think it's so broad.16And I think while it certainly does apply and it17certainly does allow an owner of land to move18property, it doesn't allow them to destroy it where19it sat for 20 years.20 In particular, the -- I would point that21the existence of the exception actually renders22clear the fact that the statute is intended to

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1recognize site-specific art. The statute -- the2particular exemption you're discussing says that in3the case that an artist claims that the4modification by movement or lighting of his art5causes mutilation or distortion, that won't6consider -- that won't constitute the type of harm7or distortion or mutilation that this act finds8actionable.9 There is one type of artist that would10offer such an argument, an artist who believes that11the site in which his art lays has an impact on the12overall artistic vision. So why would that13exception exist if the statute wasn't otherwise14meant to cover and protect site-specific art?15 In particular, by the mere fact that the16art can be harmed in one way that other art is not17susceptible to does not mean it's not entitled to18all the other protections provided under the act of 19VARA.20 For instance, the right of attribution21has absolutely no relationship to this issue. Did22Mr. Waffla (phonetic) -- I apologize.