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.
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
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