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Chapman Kelly v Chicago Park District

Chapman Kelly v Chicago Park District

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Published by Ray Dowd
Seventh Circuit court of appeals decides an interesting case on the copyrightability of a garden created by a fine artist. Copyright law and moral rights are implicated.
Seventh Circuit court of appeals decides an interesting case on the copyrightability of a garden created by a fine artist. Copyright law and moral rights are implicated.

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Published by: Ray Dowd on Feb 16, 2011
Copyright:Attribution Non-commercial

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11/15/2011

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In the
United States Court of Appeals
 For the Seventh Circuit
 
Nos. 08-3701 & 08-3712C
HAPMAN
K
ELLEY
 ,
Plaintiff-Appellant/Cross-Appellee,v.
C
HICAGO
P
ARK
D
ISTRICT
 ,
Defendant-Appellee/Cross-Appellant.
 
Appeals from the United States District Courtfor the Northern District of Illinois, Eastern Division.No. 1:04-cv-07715
 — 
David H. Coar
 ,
 Judge
.
 
A
RGUED
S
EPTEMBER
10,
 
2009
 — 
D
ECIDED
F
EBRUARY
15,
 
2011
 Before M
ANION
 ,
 
S
YKES
 ,
 
and
 
T
INDER
 ,
Circuit Judges
.S
YKES
 ,
Circuit Judge
. Chapman Kelley is a nationallyrecognized artist known for his representationalpaintings of landscapes and flowers
 — 
in particular, ro-mantic floral and woodland interpretations set withinellipses. In 1984 he received permission from the
 
2Nos. 08-3701 & 08-3712Chicago Park District to install an ambitious wildflowerdisplay at the north end of Grant Park, a prominentpublic space in the heart of downtown Chicago. “Wild-flower Works” was thereafter planted: two enormouselliptical flower beds, each nearly as big as a footballfield, featuring a variety of native wildflowers andedged with borders of gravel and steel.Promoted as “living art,” Wildflower Works receivedcritical and popular acclaim, and for a while Kelley anda group of volunteers tended the vast garden, pruningand replanting as needed. But by 2004 WildflowerWorks had deteriorated, and the City’s goals for GrantPark had changed. So the Park District dramaticallymodified the garden, substantially reducing its size,reconfiguring the oval flower beds into rectangles, andchanging some of the planting material.Kelley sued the Park District for violating his “right ofintegrity” under the Visual Artists Rights Act of 1990(“VARA”), 17 U.S.C. § 106A, and also for breach of con-tract. The contract claim is insubstantial; the main eventhere is the VARA claim, which is novel and tests the boundaries of copyright law. Congress enacted thisstatute to comply with the nation’s obligations underthe Berne Convention for the Protection of Literary andArtistic Works. VARA amended the Copyright Act,importing a limited version of the civil-law conceptof the “moral rights of the artist” into our intellectual-property law. In brief, for certain types of visual art
 — 
paintings, drawings, prints, sculptures, and exhibi-tion photographs
 — 
VARA confers upon the artist certain
 
Nos. 08-3701 & 08-37123rights of attribution and integrity. The latter include theright of the artist to prevent, during his lifetime, anydistortion or modification of his work that would be“prejudicial to his . . . honor or reputation,” and torecover for any such intentional distortion or modifica-tion undertaken without his consent.
See
17 U.S.C.§ 106A(a)(3)(A).The district court held a bench trial and entered asplit judgment. The court rejected Kelley’s moral-rightsclaim for two reasons. First, the judge held thatalthough Wildflower Works could be classified as botha painting and a sculpture and therefore a work of visualart under VARA, it lacked sufficient originality to beeligible for copyright, a foundational requirement inthe statute. Second, following the First Circuit’s deci-sion in
Phillips v. Pembroke Real Estate, Inc.
 ,
 
459 F.3d 128(1st Cir. 2006), the court concluded that site-specific artlike Wildflower Works is categorically excluded fromprotection under VARA. The court then held for Kelleyon the contract claim, but found his evidence of damagesuncertain and entered a nominal award of $1. Bothsides appealed.We affirm in part and reverse in part. There is reasonto doubt several of the district court’s conclusions: thatWildflower Works is a painting or sculpture; that itflunks the test for originality; and that
all
site-specific artis excluded from VARA. But the court was right toreject this claim; for reasons relating to copyright’s re-quirements of expressive authorship and fixation, aliving garden like Wildflower Works is not copy-rightable. The district court’s treatment of the contract

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