U.S.C.i..

'lth Ckcuit
RECEIVED LMf3
.111M 1 2 ")009

No. 08-3701 & 08-3712
GiNO J. At?NELLO
IN

THE

CLE~K

lIniteò ~tateg (lourt of Appealg
FOR THE SEVENTH CIRCUIT
Chapman Kelley,

Plaintiff - Appellant, Cross-Appellee,
v.

Chicago Park District,
Defendant - Appellee, Cross-Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
NO. 04-CV-07715

THE HONORABLE DAVID H. COAR

RESPONSE AND REPLY BRIEF OF PLAINTIFF-APPELLANT, CROSS-APPELLEE CHAPMAN KELLEY
Alex L. Karan Micah E. Marcus
Hector Bove KIRKLND & ELLIS LLP

300 North LaSalle Street
Chicago, IL 60654 (312) 862-2000

Counsel for Appellant Chapman Kelley
DATED: June 12, 2009

STATEMENT REGARDING ORAL ARGUMENT
Appellant, Chapman Kelley, respectfully requests oral argument pursuant to

Circuit Rule 34(f). The arguments of counsel at oral argument would advance the

decisional process of determining whether the District Court erred in not extending
copyright and VARA protection to Wildflower Works.

i

TABLE OF CONTENTS

Page
STATEMENT REGARDING ORAL ARGUMENT.................................................. i
TABLE OF CONTENTS............................................................................................. ii

TABLE OF AUTHORITIES...................................................................................... iv
SUMMARY OF THE ARGUMENT............................................................................1
ARGUMENT .................................................................................................................5

I. WILDFLOWER WORKS IS PROTECTED BYVARA.................................5
A. Vara Protects Site-Specific Art from Mutilation and Distortion............5

B. Wildflower Works Satisfies Both the Originality and Fixation
Requirements of Copyright Law ..............................................................8
1. Wildflower Works Is Subject to Copyright Protection As

an Original Work Of Authorship ...................................................9
2. Wildflower Works Is Fixed in a Tangible Medium and

Can Be Perceived, Reproduced and Otherwise Communicated..............................................................................11
3. Kelley Seeks Protection of His Artistic Expression, Not

the System Supporting It.............................................................15
C. 17 U.S.C. § 113(d)(1) Is Inapplicable to Wildflower Works...................

17

1. Wildflower Works Is Neither Incorporated in Nor Made

Part of the Monroe Street Parking Garage................................. 18 2. Wildflower Works Was Removable from Its Location ................ 19
3. Kelley Did Not Consent to the Incorporation of Wildflower

Works into the Monroe Street Parking Garage ..........................21

D. Chapman Kelley Did Not Waive His VARA Rights for Wildflower Works Through His Permit with the Chicago Park
District................................................................................. ....................21

11

II. THE DISTRICT COURT ERRED IN FAILING TO CALCULATE DAMAGES BASED ON UNDISPUTED EVIDENCE ................................23
III. THE PLAIN LANGUAGE OF THE CHICAGO PARK DISTRICT ACT GRANTS CORPORATE AUTHORITY TO THE INDIVIDUAL COMMISSIONERS, NOT THE COMMISSION, OF THE CHICAGO PARK DISTRICT...............................................................26

CONCLUSION............................................................................................................28

CERTIFICATE OF COMPLIANCE ........................................................................30
CIRCUIT RULE 30(D) STATEMENT.....................................................................31

CIRCUIT RULE 31(E) CERTIFICATION .............................................................32
CERTIFICATE OF SERVICE..................................................................................33

ii

TABLE OF AUTHORITIES

Page
CASES

Advanced Computer Servs. of Michigan, Inc. v. MA Sys. Corp., 845 F.Supp. 356 (E.D. Va. 1994) ...........................................................12, 13, 15
Amcast Indus. Corp. v. Detrex Corp.,

2 F.3d 746 (7th Cir. 1993) ...................................................................................6 Baltimore Orioles, Inc. v. Major League Baseball Players Ass'n, 805 F.2d 663 (7th Cir. 1986) .......................................................................12, 15
Board of Managers of Soho Intl Arts Condo. v. City of New York,

No. 01 Civ. 1226, 2003 WL 21403333 (S.D.N.Y. June 17, 2003) ...............18, 20
Carter v. Helmsley-Spear, Inc.,

71 F.3d 77 (2d Cir. 1995) ...................................................................................18
Collins & Aikman Corp. v. Carpostan Indus., Inc.,

905 F.2d 1529 (4th Cir. 1990) ...........................................................................12
English v. BFC & R E. 11th St. LLC, No. 97 Civ. 7446, 1997 WL 746444 (S.D.N.Y. Dec. 3, 1997) ............................18
Feist Publ'ns, Inc. v. Rural Tel. Servo Co.,

499 U.S. 340 (1991)........................................................................................2, 10
JCW Invs., Inc. v. Novelty, Inc.,

482 F.3d 910 (7th Cir. 2007) .............................................................................10
Kelley V. Chi. Park Dist.,

No. 04 C 07715, 2008 WL 4449886 (N.D. ILL. Sept. 29, 2008) ..............13, 24, 26
Letter Edged in Black Press, Inc. V. Pub. Bldg. Comm 'n of Chi., 320 F. Supp. 1303 (N.D. IlL. 1970).....................................................................11

Lott V. Levitt,

556 F.3d 564 (7th Cir. 2009) ...............................................................................8
Martin V. City of Indianapolis, 192 F.3d 608 (7th Cir. 1999) .............................................................................23

iv

Mazer v. Stein, 347 U.S. 201 (1954)............................................................................................ 16
Midway Mfg. Co. v. Artic Int'l, Inc.,
547 F.Supp. 999 (N.D. IlL. 1982) .......................................................................11

Midway Mfg. Co. v. Artic Int'l, Inc., 704 F.2d 1009 (7th Cir. 1983) .....................................................................12, 15

Neidert v. Reiger, 200 F.3d 522 (7th Cir. 1999) ...........................................................................6, 7

Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128 (1st Cir. 2006) ................................................................................ 7
Pioneer Bank & Trust Co. v. Seiko Sporting Goods, Co., 540 N.E.2d 808 (IlL. App. Ct. 1989) ...................................................................25

Pivot Point Int'l, Inc. v. Charlene Prods., Inc., 372 F.3d 913 (7th Cir. 2004) .............................................................................10
Republic Tobacco Co. v. N. Atl. Trading Co., 481 F.3d 442 (7th Cir. 2007) ...............................................................................6

SHL Imaging, Inc. v. Artisan House, Inc.,
117 F. Supp. 2d 301 (S.D.N.Y. 2000) ................................................................13

Singleton v. Wulff,

428 U.S. 106 (1976).........................................,....................................................6
Taylor v. Chi. Park Dist., No. 91 C 2380,1991 WL 111154, (N.D. IlL. June 17, 1991) .............................22

Thomason v. Aetna Life Ins. Co., 9 F.3d 645 (7th Cir. 1993) .................................................................................22
Twisdale v. Snow, 325 F.3d 950 (7th Cir. 2003) ...............................................................................6
U.S. v. Berkowitz, 927 F.2d 1376 (7th Cir. 1991) ...........................................................................10
U.S. v. Windom,

19 F.3d 1190 (7th Cir. 1994) .............................................................................10
Washington Courte Condo. Assoc.-Four v. Washington-Golf Corp.,

643 N.E.2d 199 (IlL. App. Ct. 1994) ...................................................................25
v

STATUTES

17 U.S.C. § 101 .......................................................................................................11,14
17 U.S.C. § 102(a) ...........................................................................................................9

17 U.S.C. § 106(A)(e)(1)..........................................................................................22,23
17 U.S.C. § 106(A)(e)(1)(a) ....................,........................................................................3

17 U.S.C. § 106A...........................................................................................................22

17 U.S.C. § 113(d)(1) ............................................................................................passim
17 U.S.C. § 113(d)(1) (B) ..............................................................................................21
17 U.S.C. 113(d)(2)(B) ..................................................................................................20

70 ILCS 1505/17 ... ...... ........ ................................... ................ .......... ............ ... ...... ........27

70 ILCS 1505/19........... ...... ............................ ........................ ................. ...... ...............27
70 ILCS 1505/23.... ........... .................. ................... ................. .... .... .................. ............27
70 ILCS 1505/4....... .................. ...... .... ................... .......................................................27

70 ILCS 1505/7 ....... ................................................................................ ..................... .28

70 ILCS 1505/7.01 ..............................................................................................4, 27, 28
70 ILCS 1505/7.04..... ..... .................................................... ..........................................28
OTHER AUTHORITIES

The Visual Artists Rights Act of 1990: American Artists Burned Again, 17 Cardozo L. Rev. 373 (1995)...........................................................................22

vi

SUMMARY OF THE ARGUMENT
)

There are three central issues of dispute before the Court. Two are raised by

Kelley: (i) whether the Chicago Park District violated VARA when it mutilated

Wildflower Works; and (ii) whether the District Court erred by failing to award

damages though finding the Chicago Park District liable for breach of contract. The

third, raised by the Chicago Park District, is whether the District Court erred in
finding a breach of contract. Kelley respectfully submits that the pleadings

presented to the Court establish that he has prevailed on all these issues.

The Chicago Park District's Mutilation of Wildflower Works Violated
VARA

The District Court's reliance on Phillips in denying Kelley relief from the
Chicago Park District's destruction of

Wildflower Works was in error. In his opening

brief, Kelley demonstrated beyond contention that V ARA protects site-specific art

from the type of mutilation at issue in this case by proving that the First Circuit
erred in its cursory conclusion that VARA left site-specific art with no protection.

The Chicago Park District, in its response, does not dispute Kelley's conclusion and

does not provide any substantive response to Kelley's analysis of Phillips. Instead,

the Chicago Park District resorts to unfounded pleas of waiver, arguments that turn
well established copyright law on its head, and a completely inapposite invocation of
VARA's "Building Waiver Exception." Each of

these arguments lacks merit and

should be rejected by this Court.

1

First, the Chicago Park District's argument-that this Court cannot consider
the purely legal issue of

whether VARA protects site-specific art from mutilation

because Kelley failed to challenge the First Circuit's Phillips Decision before the

District Court-lacks merit. This Court has absolute discretion to resolve this
important issue oflaw. And, under the present facts, where Kelley has not engaged
in any form of gamesmanship or gained some tactical advantage by bringing this
argument at this stage, this Court should unquestionably exercise its discretion to
do so.

Second, the contention that Wildflower Works is not entitled to protection
under VARA because it is not subject to copyright protection is

equally unavailing.

The Chicago Park District raises three arguments in this regard, contending that:

(i) Wildflower Works is not original; (ii) Wildflower Works is not fixed; and
(iii) systems are not copyrightable. Each of these arguments is erroneous. Kelley's
world-renowned work of

visual art, Wildflower Works, is fixed in a tangible medium

of expression and easily meets the low threshold for originality set by the Supreme
Court in Feist Publ'ns, Inc. v. Rural Tel. Servo Co., 499 U.S. 340, 345 (1991).

Moreover, that the underlying vegetative management system supporting

Wildflower Works is not entitled to copyright protection is simply irrelevant,

because Wildflower Works is clearly copyrightable.
Third, the Chicago Park District's invocation ofVARA's Building Waiver

Exception, 17 U.S.C. § 113(d)(1), is similarly without merit. The Building Waiver
Exception only applies to works of art that have been physically incorporated or

2

built into a building and where the removal of such art would result in the art's
destruction. Undisputed evidence proved that Wildflower Works is not incorporated
into any building and that Wildflower Works could have been removed without
suffering destruction. Simply, the fact that Wildflower Works was situated in dirt

that happened to be several feet above an underground structure does not strip
Wildflower Works of

protection under VARA.

Finally, the Chicago Park District completely fails in its attempt to show
that Kelley intentionally waived his VARA rights pursuant to 17 U.S.C.
§ 106(A)(e)(1)(a) as a result of an expired permit issued by the Chicago Park

District in 1988. Kelley did no such thing. Kelley's VARA rights did not come into

existence until 1990, when VARA was passed. As a matter of law, Kelley could not

have expressly waived his rights before even knowing of their existence. Nor is
there any other basis for finding that Kelley waived his V ARA rights. He did not.

The District Court Erred In Failing To Award Damages For Breach
Of

Contract
The District Court correctly found that the Chicago Park District breached its

contract with Kelley. Kelley was entitled to ninety days written notice to provide

him a reasonable opportunity to remove Wildflower Works from Grant Park. The
Chicago Park District proceeded to destroy his life's greatest work without giving

him any formal notice, and only a week after informally letting him know that the
mutilation of his work was contemplated.

3

However, after finding a clear breach of Kelley's contractual rights, the

District Court erroneously refused to award any damages. The District Court
premised its decision in this regard on a mistaken legal notion concerning which
party bore the burden of

proving what damages the plaintiff could have mitigated.

That burden lay on the Chicago Park District, not Chapman Kelley. Indeed, Kelley

provided unrebutted evidence demonstrating damages of at least $825,000. And in
that regard, the Chicago Park District's failure to present any evidence of Kelley's

alleged saved costs by virtue of destruction of the flowers should be held against the
Chicago Park District, not Kelley.

The District Court Did Not Err In Finding That The City Breached Its
Contract
The sole basis of the Chicago Park District's appeal of the District Court's
finding of a breach of contract is that Chicago Park District Commissioner Margaret

Burroughs did not have the authority to bind the Chicago Park District because she
lacked authority under the relevant municipal code. However, the District Court

correctly determined that Margaret Burroughs had the requisite authority. A plain
and straightforward reading of 70 ILCS 1505/7.01 reveals that Mrs. Burroughs, in

her position as Chicago Park District Commissioner, had the authority to bind the
Chicago Park District and did so.

4

ARGUMENT

I. WILDFLOWER WORKS is PROTECTED BY VARA
Wildflower Works is a work of

visual art subject to protection by VARA. The

Chicago Park District's responsive pleading provides no basis to defeat this

conclusion. As an initial matter, the Chicago Park District does not contest the
District Court's finding that Wildflower Works is a work of

visual art for purposes of

VARA, thus conceding the point. Moreover, the Chicago Park District does not

actually dispute that VARA protects site-specific art from the type of mutilation at
issue in this case. Rather, in attempting to explain why Wildflower Works is not

entitled to protection under VARA, the Chicago Park District poses four flawed

arguments: (1) Kelley has waived his right to challenge the District Court's
statutory interpretation ofVARA; (2) Wildflower Works, though a work of

visual

art, is a "system" that is neither original nor sufficiently fixed to be subject to
copyright protection; (3) the location of Wildflower Works, above the Monroe Street

garage, renders it unprotected; and (4) a permit issued prior to the existence of
VARA constituted a waiver of Kelley's rights. None of these arguments comes close

to refuting what Chapman Kelley has clearly shown: that the Chicago Park District
violated Chapman Kelley's VARA rights when it mutilated the most important work

of art of his career.

A. Vara Protects Site-Specific Art from Mutilation and Distortion
Chicago Park District's argument, that Kelley has "forfeited" his statutory
interpretation argument regarding the application of V ARA to site-specific art

5

(Opposition Br. of Chicago Park District at 13) is ill-founded. The Chicago Park
District cannot dispute that "(t)he matter of

what questions may be taken up and

resolved for the first time on appeal is one left primarily to the discretion of the
courts of appeals, to be exercised on the facts of individual cases." Neidert v. Reiger,

200 F.3d 522, 527 (7th Cir. 1999) (citing Singleton v. Wulff, 428 U.S. 106, 121
(1976)). Indeed, where the question is one of

pure law, and the parties have had the

opportunity to brief the question and thus wil not be surprised if it is resolved, this
Circuit has exercised discretion in favor of resolving the question.I Republic Tobacco
Co. v. N. Atl. Trading Co., 481 F.3d 442, 447 n.3 (7th Cir. 2007) (resolving question

of statutory interpretation); Neidert, 200 F.3d at 527-28; Amcast Indus. Corp. v.
Detrex Corp., 2 F.3d 746,749-50 (7th Cir. 1993) (resolving question of statutory
interpretation); cf. Twisdale V. Snow, 325 F.3d 950, 952 (7th Cir. 2003) (resolving
legal issue that was alternative ground for upholding district court judgment, even

though the issue was not briefed by either party).
Kelley's VARA statutory interpretation question is consistent with this

precedent, and the Court should resolve a legal question that is important not only
to Chapman Kelley, but also to artists all across the United States. Indeed, "(t)here
wil be no better time to resolve the issue than now." Amcast Indus. Corp., 2 F.3d at
750. It is beyond question that Chapman Kelley's argument that VARA rights exist

1 Resolving this issue on appeal does not implicate concerns for judicial economy. "It is

unrealistic to think that if (appellant) had made the argument to the district court and prevailed, there would have been no appeaL. The appeal would just have been filed by
(appellee) rather than (appellant)." Amcast Indus. Corp.v. Detrex Corp., 2 F.3d 746,750
(7th Cir. 1993).

6

for the author of a site-specific artwork is a purely legal argument of statutory
interpretation. (Opening Br. of Appellant at 16-23.) It is therefore true that "(t)he

district judge's view, while it would no doubt be interesting, could have no effect on

(this Court's) review, which is plenary on matters oflaw." Neidert, 200 F.3d at 528.
Moreover, the Chicago Park District cannot claim surprise when this Court resolves
the VARA interpretation question.

Chicago Park District's own brief states that the

District Court "repeatedly raised" the Phillips v. Pembroke Real Estate, Inc., 459
F.3d 128, 139 (1st Cir. 2006), VARA statutory interpretation argument, including in
both a motion to dismiss and post-trial briefing. (Opposition Br. of Appellee at 12.)

The Chicago Park District also had the opportunity to fully brief the issue on appeal

in its response to Kelley's brief. Indeed, it is telling, but not surprising, that the
Chicago Park District chose not to address the substance of any of

the arguments

raised by Chapman Kelley regarding the application of V ARA to site-specific art:2

2 The Chicago Park District did, however, assert that Chapman Kelley's "claim may well

be the worst case scenario of the concern voiced by the Phillips court" because a
conclusion that VARA protects the Wildflower Works "could dramatically affect real property interests and laws." (Opp'n Br. of Chicago Park District at 13-14.) This argument, however, addresses a notion of V ARA that Chapman Kelley does not advance. As Chapman Kelley made clear in his opening brief, Chapman Kelley does not argue that the relocation or removal of site-specific art (and resulting conceptual destruction) violates V ARA. While that may be an interesting legal issue, it is not one relevant to the Chicago Park District's conduct in this case. The issue in this case is

not "conceptual damage" resulting from the relocation of a site-specific work of art. The Chicago Park District did not decide to remove the Wildflower Works from its location after giving Chapman Kelley adequate notice and an opportunity to either advocate for a change of the Chicago Park District plans for removal or to remove the Wildflower
Works himself. Instead, the Chicago Park District chose to mutilate the Wildfower

Works in the very location where it had existed for more than 20 years without giving Chapman Kelley anything resembling adequate notice. What the Chicago Park District
actually did has nothing to do with whether the Wildflower Works is site-specific.
7

that VARA protects site-specific art from the kind of mutilation that is at issue in

this case is essentially beyond question.
The Chicago Park District's reliance on Lott v. Levitt, 556 F.3d 564, 568 (7th
Cir. 2009) is entirely misplaced. (Opp'n Br. of Chicago Park District at 13.) Lott
involved a party attempting to advance two alternative and inconsistent legal

arguments. The appellant explicitly relied on Illinois law at triaL. ¡d. After losing at
trial, the appellant argued on appeal that Virginia law should be applied. ¡d. This

Court found that such gamesmanship should not be countenanced.
This case involves no such "gamesmanship." (Opp'n Br. of Chicago Park

District at 13.) Kelley's arguments that Wildflower Works is not site-specific art as
contemplated by Phillips, and that V ARA protects site-specific art, are not

inconsistent. To the contrary, Kelley has consistently argued that Phillips does not
preclude him from relief under V ARA and Kelley derived no advantage from relying only on the 'Wildflower Works is not site-specific' argument at triaL.

In sum, the question oflaw before this Court, whether VARA was intended to

protect all forms of visual art, including site-specific art, is an important question

with widespread ramifications for the art world that should be resolved by this
Court. The Chicago Park District's ill-founded waiver argument should be rejected
and the Court should rule on the merits of the action before it.

B. Wildflower Works Satisfies Both the Originality and Fixation
Requirements of Copyright Law
The Chicago Park District's copyright-based arguments are likewise
unavailing. Wildflower Works is a clear embodiment of

"an original work of
8

authorship fixed in a tangible medium of expression" and is therefore copyrightable
as a painting or sculpture under the Copyright Act. 17 U.S.C. § 102(a). The Chicago

Park District attempts to briefly propose three arguments explaining why
Wildflower Works is uncopyrightable: (i) Wildflower Works is not "original"; (ii)
Wildflower Works is not "fixed"; and (iii) vegetative management systems are not

copyrightable. The Chicago Park District's arguments, however, are wholly

unsupported by the evidence at trial and completely misconstrue the requirements
imposed by the Copyright Act.
First, there was clear and ample evidence provided at trial concerning the
original and creative aspects of Wildflower Works. Indeed, the threshold

set by the

Supreme Court regarding originality is very low. Second, in its entirety, Wildflower
Works is fixed and can be perceived, reproduced, and otherwise communicated.

Finally, the Chicago Park District's "system" argument strains credulity. Kelley
does not argue, nor does he need to, that the vegetative management system
supporting Wildflower Works is copyrightable. He does not seek protection of the
system, but the work of

visual art it supports-his Wildflower Works creation. The

Chicago Park District's vegetative system copyright argument is simply beside the
point and fully deserves to be summarily rejected.
1. Wildflower Works Is Subject to Copyright Protection As

an Original Work Of Authorship
As demonstrated in Kelley's Opening Brief, the District Court erred in
concluding that there was nothing "inherently original about Wildflower Works."

The Supreme Court established an "extremely low" threshold of originality required
9

by the Copyright Act. Feist Publ'ns, Inc., 499 U.S. at 345 (holding threshold for
creativity is "extremely low" and hence "(t)he vast majority of

works make the grade

quite easily, as they possess some creative spark."); see also JeW Inus., Inc. v.

Novelty, Inc., 482 F.3d 910, 914 (7th Cir. 2007) (holding that copyright protection
simply requires only a minimal degree of creativity); Piuot Point Int'l, Inc. v.

Charlene Prods., Inc., 372 F.3d 913, 929 (7th Cir. 2004) ("To merit protection from
copying, a work need not be particularly novel or unusuaL.")

The evidence and testimony at trial make clear that Chapman Kelley's level

of design, planning, control and execution in Wildflower Works clearly ilustrates a

significant amount of intellectual labor and artistic expression that extends far
beyond the low level of creativity required by the Supreme Court under Feist. (See
Opening Br. of Appellant at Part 1.) The Chicago Park District does nothing to

counter the trial testimony and evidence other than reiterate the District Court's

mistaken conclusion. Simply, the Chicago Park District's conclusory allegations are

not sufficient to support the District Court's error with respect to the appropriate
bar of "originality" imposed by the Supreme Court.3

3 Likewise, the Chicago Park District's reliance on Windom and Berkowitz, arguing that

"perfunctory and undeveloped arguments" are waived, is misplaced. U.S. u. Windom, 19 F.3d 1190, 1198 (7th Cir. 1994) (quoting U.S. u. Berkowitz, 927 F.2d 1376, 1384 (7th Cir.

1991)). In both cases, the reference to "perfunctory and undeveloped arguments" refers to inadequate and incomplete arguments presented in the appellate briefs. Id.
Chapman Kelley's opening brief clearly states the standard for originality, provides

pertinent authority, and provides specific examples from the trial testimony and
evidence showing how Wildflower Works is original and creative under the Copyright Act. (See Opening Br. of Appellant at Part 1.)
10

2. Wildflower Works Is Fixed in a Tangible Medium and Can

Be Perceived, Reproduced and Otherwise Communicated

Although the District Court never reached the argument, the Chicago Park
District argues that simply because the floral component of

Wildflower Works

changes color, grows, and dies it is not "fixed in a tangible medium of expression,"

and thus not entitled to copyright protection. See 17 U.S.C. § 101 (emphasis added).

The Chicago Park District, however, misconstrues the fixation requirement of the
Copyright Act to mean that artwork can never change over time if it is to be
afforded copyright protection. Not so.
The Copyright Act defines the fixation requirement to mean that "(aJ work is
'fixed' in a tangible medium of expression when its embodiment in a copy. . . is

sufficiently permanent or stable to permit it to be perceived, reproduced, or

otherwise communicated for a period of more than a transitory duration." Id.
Furthermore, the Act defines copies as "material objects. . . in which a work is fixed

by any method now known or later developed." Id. (emphasis added). The fixation

requirement of the Copyright Act, thus, does not require that a work of art is
eternally unchanging. Instead, it merely entails some sort of physical embodiment
so that the author's idea can be perceived. See Midway Mfg. Co. v. Artic Intl, Inc.,
547 F.Supp. 999, 1007 (N,D. IlL. 1982) (a copy "may be made in any medium

whatsoever, so long as the work can be perceived from it") ; Letter Edged in Black
Press, Inc. v. Pub. Bldg. Comm'n of Chi., 320 F. Supp. 1303, 1310 (N.D. IlL. 1970)

("It is settled that a copyright can exist only in a perceptible, tangiblework."); see
also Collins & Aikman Corp. v. Carpostan Indus., Inc., 905 F.2d 1529 (4th Cir.
11

1990) (unpublished table decision) (fixation is synonymous with physical

embodiment).

Indeed, numerous courts have provided copyright protection for works that

are constantly changing and don't feature a static image, such as computer and
video games and telecasts of sporting events and performances. See, e.g., Midway

Mfg. Co. v. Artic Intl, Inc., 704 F.2d 1009, 1013-14 (7th Cir. 1983) (audiovisual

images of arcade games satisfy fixation requirement); Baltimore Orioles, Inc. v.
Major League Baseball Players Ass'n, 805 F.2d 663,675 (7th Cir. 1986) (telecasts of

major league baseball games satisfy the fixation requirement when recorded since
the players' performances are embodied in the recording); Advanced Computer

Servs. of Michigan, Inc. v. MA Sys. Corp., 845 F.Supp. 356, 363 (E.D. Va. 1994)
("(T)he Act does not require absolute permanence for the creation of a copy.")

The court's analysis in Advanced Computer Services is particularly
instructive to the proper understanding of an object being "fixed". In Advanced
Computer Services, the Court analyzed whether the nature of random access

memory ("RA") was "inherently so ephemeral, so transitory" that it could not be
fixed and therefore could not be considered a copy of a copyrighted program. Id, at
362. In particular, the plaintiffs argued that the RA is ephemeral and transitory

because once a computer is turned off, the information is immediately cleared from

the RAM and incapable of perception. Id. at 363. The court held that because
representations of the information stored in the RAM could be displayed, even if for

12

only a few minutes, or printed, it was stable enough to be perceived, and thus
"fixed" for purposes of the copyright act. Id.

Another example of copyright being extended to a changing work can be
found very near to Wildflower Works. In Grant Park there is another sculpture,

Crown Fountain, that features constantly changing facial images on its sides every
18 seconds. Jaume Plensa, the artist behind Crown Fountain, owns the sculpture's
copyright, U.S. Copyright No. 000544065 (March 22, 2003),

Yet another example, ironically, is Jeff Koons' Puppy sculpture, referenced by

the District Court in support of his holding that an arrangement of living plants can
be considered a work of

visual art. Kelley v. Chi. Park Dist., No. 04 C 07715, 2008
flowers,

WL 4449886, at *4 (N.D, ILL. Sept. 29, 2008). Puppy is a 43 foot sculpture of

steel, and an internal irrigation system in the shape of a puppy. Despite the use of

flowers in the arrangement that must be maintained and that change over time,
Puppy is copyrightable. See SHL Imaging, Inc. v. Artisan House, Inc., 117 F. Supp.
2d 301, 306 (S.D.N.Y. 2000) (referencing Jeff Koons' Puppy sculpture to ilustrate a

point about copyright infringement).

In fact, all artwork, particularly outdoor art, changes over time -- paints fade,

metal rusts, dirt accumulates. Just because art changes over time does not mean it
is not copyrightable per the fixation requirement. At trial Kelley and his expert

Jane Jacobs both testified repeatedly that all artwork is constantly changing. (See
A0098-99, A0159-60, A0167-69.) At various points Kelley provides examples of

how

art changes:

13

Q. Did you ever make -- is it fair to say that once you have placed traditional paint on canvas, the item, the paint has
become fixed to the canvass in a more or less stable way?

A. Oil paint on canvas doesn't even oxidize until about 50 years, and depending on how thick it is, it may actually physically move on the canvas.

Q. Okay in other words, it's an art that's constantly

changing.

A. Yes, like all art.
Q. It's --

A. All art is constantly changing.

Q. Is it fair to say that your work of art, as you've described it could only be maintained with your artistic vision if there was some type of constant maintenance over time?
A. Yes. That's true of all works of art. The Bean has to be polished probably every year. The one with the faces on it in Milennium Park has to have the algae cleaned off the glass three times a year. Most works of art, particularly if
they're out in public, out of doors, do require maintenance. Those that are painted have to be repainted.

In the present case we are not dealing with a work that changes within
seconds or even minutes, rather the changes in Wildflower Works happen over the
course of months as summer gives way to fall, and fall segues into winter, and so
forth. (A0168.) Indeed, Wildflower Works is both permanent and stable so that it

"can be perceived, reproduced, or otherwise communicated." 17 U.S.C. § 101; see

14

also Midway Mfg. Co., 704 F.2d at 1013-14; Baltimore Orioles, Inc., 805 F.2d at 675;

Advanced Computer Servs. of Michigan, Inc., 845 F.Supp. at 363. Wildflower Works
lasted in Kelley's original form for 20 years until the Chicago Park District
suddenly decided to mutilate it. In fact, millions of

visitors have had an opportunity

to see Chapman Kelley's work; it has been photographed and painted countless
times. Just because the composition of the work changes as the flowers grow, bloom,

die, and are reborn does not prevent Wildflower Works from being perceived. The
changing nature of

the composition does not mean that Wildflower Works exists in

one instant and the next second, minute, day, week, month, or year it ceases to
exist.

Additionally, Wildflower Works clearly meets the physical embodiment
aspect of the fixation requirement since Kelley's conception of wildflowers as art is

fixed/embodied in the tangible display. His vision of an environmentally friendly but

aesthetically pleasing work was embodied in the two large ellipses created by the
metal and gravel edging surrounding carefully selected native wildflowers known as

Wildflower Works. Wildflower Works is a copy of Chapman Kelley's artistic vision.
3. Kelley Seeks Protection of His Artistic Expression, Not

the System Supporting It
The Chicago Park District's final copyright argument, that systems are not

entitled to copyright protection, completely misses the point. Kelley does not seek
protection of

the vegetative management system that supports Wildflower Works,

he seeks protection for his artistic expression supported by that vegetative
management system.
15

Simply, while an idea or a system for creating art may not be copyrightable,
the art resulting from the idea or system certainly can be. Mazer v. Stein, 347 U.S.

201, 217 (1954) (ilustrating the principle with an example of two men with similar
ideas of making a map of a particular territory -- while the idea of making the map
is clearly not copyrightable, each map is copyrightable). In the same vein, every

work of art is the product of a system or an idea that cannot be copyrightable:

paintings are usually the product of a system for creating images of paint on canvas
and sculptures are usually the product of and incorporate a system of creating

shapes out of clay or steel or other solid medium. Indeed, all art is the product of
one system or idea or another. And, of course, while the systems and ideas
themselves are not subject to copyright protection, the art created therewith that

embodies such systems or ideas can be copyrighted.

In the present case, Chapman Kelley does not argue that the vegetative
management system used to create Wildflower Works is subject to copyright.

Indeed, Chapman Kelley is first and foremost an artist known for his depictions of
wildflowers enclosed in elliptical bands. (A0012-14.) In creating Wildflower Works,

Kelley wanted to create a new form of art that incorporated living and non-living

elements into a beautiful 3-dimensional exhibit that was also environmentally
friendly and sustainable. (A0026-27.) While that artwork was supported by a

vegetative management system, which was defined at trial to mean "a system of
growing flowers...for any...purpose that would be sustainable when water is not
available" (A0219), that does not render the artwork itself, the visual aesthetics of

16

Wildflower Works, incapable of copyright protection. The Chicago Park District's

argument to the contrary is plainly without merit and should accordingly be
summarily rejected by this Court,
C. 17 U.S.C. § 113(d)(1) Is Inapplicable to Wildflower Works

VARA's Building Waiver Exception does not preclude Kelley from relief.
VARA's Building Waiver Exception, 17 U.S.C. § 113(d)(1), states that when a work

of visual art has been "incorporated in or made part or a building" prior to VARA's

effective date and it cannot be removed without "destruction, distortion, mutilation, .
or other modification" VARA is inapplicable. Id. Three requirements are needed for
the Building Waiver Exception to apply: (1) the work of

visual art has to be built

into a building; (2) the removal of the work must cause the destruction, distortion,
mutilation or other modification of

the work; and (3) the artist must have consented

to the installation of the work in the building. Id.

The Chicago Park District attempts to use 17 U.S.C. § 113(d)(1) to argue that
Wildflower Works is not protected under VARA because it was built prior to VARA's
effective date and was incorporated in the structure beneath the plaza. However,

none of the statute's requirements are established in the present case. Chapman
Kelley's Wildflower Works resides in Daley Bicentennial Plaza in Grant Park and

was never built into or incorporated into any building, including, but not limited to

the Monroe Street Parking Garage. As such, the Chicago Park District's strained
Building Waiver Exception argument must faiL.

17

1. Wildflower Works Is Neither Incorporated in Nor Made
Part of

the Monroe Street Parking Garage

The language of the Building Waiver Exception specifically requires that a
work of

visual art must be "incorporated in or made part of a building" for the

section to apply. 17 U.S.C. § 113(d)(1). Here, Wildflower Works has neither been

incorporated in the building nor made a part of the building. To the contrary, it is

planted in dirt, which itself is not incorporated into the building, that has the
happenstance of sitting atop of the garage of the Monroe Street Parking Garage.
This mere juxtaposition does not satisfy the first element of the Building Waiver
Exception.

Indeed, the few cases finding application of the Building Waiver Exception

are cases in which the visual art has clearly been constructed into or actually made
part of

the building at issue. See e.g. Carter v. Helmsley-Spear, Inc., 71 F.3d 77 (2d

Cir. 1995) (dealing with metal sculptures bolted and screwed into the walls and

ceilings of the lobby of a commercial building and also a glass mosaic embedded into
the floor of the lobby); Board of Managers of Soho Intl Arts Condo. v. City of New

York, No. 01 Civ. 1226,2003 WL 21403333, at *9 (S.D.N.Y. June 17,2003) (artist

bolted his sculpture into a city wall and subsequently painted both the sculpture
and braces on the wall as part of the larger exhibition); English v. BFC & R E. 11th
St. LLC, No. 97 Civ. 7446, 1997 WL 746444, at *1 (S.D.N.Y. Dec. 3, 1997) (artists

painted their murals directly on the walls of the building in question). These cases
are easily distinguishable from Wildflower Works, In each of

these cases, the works

could not be distinguished from the buildings, Without the buildings, the works
18

could not exist. In other words, these cases teach that for the Building Waiver
Exception to apply in the present case, Wildflower Works must have been united or

worked into the parking garage so that the two could not be distinguished from one

another.
That is not the case here. To the contrary, Wildflower Works is wholly

distinguishable and separate from the parking garage. While the parking garage
may be located under the Daley Bicentennial Plaza, Wildflower Works is separated
from the garage by a layer of earth. (A0108, A0446) The only visible part of

the

garage while standing in the Plaza are the air vents that the exhibit is built around
not into. (AOl19.)4

Simply, Wildflower Works could obviously exist without the presence of the

Monroe Street Parking Garage. Accordingly, the Chicago Park District cannot
establish the first element of

the Building Waiver Exception, and its argument must

be rejected. 2. Wildflower Works Was Removable from Its Location

In writing the Building Waiver Exception "Congress meant to separate works
fitting the definition of § 113(d) into two different categories, namely removable and
non-removable works of

visual art." Board of Managers of Soho IntZ Arts Condo.,

4 If one was to follow the Chicago Park District's logic then everything in or near Grant

Park would be considered as being built into or incorporated into the parking garages that lie underneath. Similarly, any structures built along the underground section of Chicago's Red Line would be considered as being made part of or incorporated into the subway line. Obviously, the fact that a structure is built on top of another structure does not mean that the two have been incorporated or made into one structure, particularly when the two structures are separated by earth.
19

2003 WL 21403333; at *8-9. Specifically, the Building Waiver Exception does not
apply to works of visual art that can be removed from their location without causing

"destruction, distortion, mutilation or other modifications" to the work. 17 U.S.C.
§ 113(d)(1). In cases of removable works of

visual art, the property owner is under

an obligation to notify the artist in writing of the imminent removal and provide 90
days for the artist to remove his artwork or pay for its removaL. 17 U.S.C.
§ 113(d)(2)(B). If

this notification is not provided, then the artist retains his VARA
when the art was installed. Id.

rights regardless of

The undisputed evidence in this case proves that Wildflower Works could be

removed while maintaining its integrity. Kelley and his expert witness testified
multiple times that Wildflower Works was removable. Chapman Kelley testified at

trial that Wildflower Works could have been removed in its entirety without
destruction, distortion, mutilation, or other modifications. (A0221 ("They have giant

machines that take up turf grass, roll it up and sell it and you move it, and put it
somewhere else."); see also A0181 ("You couldn't pick it up and move it, but it could

be transported. Just like they do sections of grass, they have big machines that
come and lift it up and roll it up or whatever and then move it elsewhere.").)
The Chicago Park District never disputes Kelley's unambiguous testimony on
this point. Accordingly, even if this Court were to find that Wildflower Works was
incorporated into and made a part of the Monroe Street Parking Garage (which it is
not), it cannot establish the second requirement of the Building Waiver Exception.

20

3. Kelley Did Not Consent to the Incorporation of

Wildflower Works into the Monroe Street Parking Garage
The third requirement of the Building Waiver Exception requires Chapman
Kelley's consent to the installation of

Wildflower Works in the Monroe Street

Parking Garage. 17 U.S.C. § 113(d)(1) (B). Specifically, VARA requires that "the

author consented to the installation of the work in the building." Id. (emphasis
added).

Here, there was never any consent by Chapman Kelley to install Wildflower

Works in the Monroe Street Parking Garage. The original permit signed by both the Chicago Park District and Kelley explicitly states that "permission is hereby
granted to Atelier Chapman Kelley to provide a permanent Wild Flower Floral
Display at Daley Bicentennial Plaza in Grant Park." (A0029 (emphasis

added).) Chapman Kelley consented to install Wildflower Works in the plaza and
not in the garage. The permit does mention that there is a garage underground and

that care should be taken to avoid damage to the garage, but the permit expressly
requires that Wildflower Works is to be installed in the plaza, not the garage.
Because Kelley only consented to the installation of

Wildflower Works at

Daley Bicentennial Plaza and not the Monroe Street Parking Garage, the Chicago
Park District cannot satisfy the final requirement of the Building Waiver Exception.

D. Chapman Kelley Did Not Waive His VARA Rights for
Wildflower Works Through His Permit with the Chicago Park

District
The Chicago Park District alternatively asserts that Chapman Kelley waived
his V ARA rights following the expiration of the 1988 Permit. The waiver argument
21

fails for a variety of reasons. First, V ARA rights may be waived by the artist, but

only "if the author expressly agrees to such waiver in a written instrument signed
by the author." 17 U.s.C. § 106(A)(e)(1). The waiver must "specifically identify the
work, and uses of

that work, to which the waiver applies." Id. VARA was enacted in

1990; prior to its enactment, the rights created by the Act did not exist. 17 U.S.C.
§ 106A. See also Thomason v. Aetna Life Ins. Co., 9 F.3d 645,647 (7th Cir. 1993)

(defining waiver as the "voluntary and intentional relinquishment or abandonment
of a known existing right or privilege, which, except for such waiver, would have

been enjoyed" (citation omitted) (emphasis added)). No such written waiver exists
with regard to Wildflower Works.

In lieu of the explicit, written waiver required by VARA, the Chicago Park
District points to the 1988 Permit as evidence of waiver of V ARA rights. Far from

demonstrating that Chapman Kelley waived his VARA rights, however, the 1988

Permit instead belies the fact that neither Chapman Kelley nor the Chicago Park
District could have even contemplated waiver of V ARA rights in executing the

Permit. Such rights did not yet exist, and thus, Chapman Kelley could not have

"expressly agreed" to their waiver.5 17 U,S.C. § 106A; Thomason, 9 F.3d at 647; see

also Note, The Visual Artists Rights Act of 1990: American Artists Burned Again, 17
Cardozo L. Rev. 373, 417 (1995) ("(Section 106A(e)) subjects the validity of a waiver,

by an author of his or her VARA rights, to an exacting procedure and is designed so
5 The authority cited by the Chicago Park District, Taylor v. Chicago Park Dist., No. 91 C 2380, 1991 WL 111154, at *1 (N.D. IlL. June 17, 1991), is inapposite to the question of

V AR rights and waiver thereof. The gun club at issue did not claim to be protected by
V ARA and the Act is not referenced in the opinion. Id.
22

that any such waiver is granted knowingly and voluntarily. Any ambiguities that
may crop up in actual use of the waiver provisions are solidly decided in favor of the

author.")

In fact, the type of waiver suggested by the Chicago Park District is precisely
the type that V ARA seeks to protect against. The House Subcommittee Report for
VARA notes that "routine waivers of

the (author's) rights will eviscerate the law,"

H.R. Rep. No.101-514, p.16 (1990), and accordingly that "(w)aivers and the

circumstances surrounding them must be narrowly circumscribed. . . . (and waivers

are) valid only if the parties follow the rules set forth in subsection (e)(l)." Id.
Thus, simply, the Act "does not permit blanket waivers," H.R. Rep. NO.101-

514, p.19 (1990), let alone blanket waivers veiled as a mere permit. See Martin v.

City of Indianapolis, 192 F.3d 608, 613-14 (7th Cir. 1999) (finding that project
agreement between city and artist entered into prior to adoption of V ARA did not
constitute waiver of artist's rights under i 7 U.S.C. § 106(A)(e)(1)).6 As such, the

Chicago Park District's alternative permit waiver argument must faiL.

II. THE DISTRICT COURT ERRED IN FAILING TO CALCULATE DAMAGES BASED ON UNDISPUTED EVIDENCE

In its responsive pleading, the Chicago Park District correctly identified
Kelley's burden of proof for damages at trial: proof that damage was suffered, and a

reasonable basis for calculating those damages. (Opp'n Br. of Chicago Park District

6 See also Christopher R. Mathews, VARA's Delicate Balance and the Crucial Role of

the

Waiver Provision: Its Current State and Its Future, 10 UCLA Ent. L. Rev. 139, 143

(2003) (explaining that Congress drafted a "system that allowed for waivers but would
discourage such a practice from becoming routine").
23

at 1 7.)

That being said, there is no dispute that Wildflower Works was badly

damaged; the District Court found that almost 55% of the work was destroyed by
the actions of

the Chicago Park District. Kelley, 2008 WL4449886 at *9.7 Also, as

the Chicago Park District admits, Kelley's expert testified that the value of the
flowers at Wildflower Works was $1.5 milion, a number accepted by the District
Court and not refuted at triaL. (Opp'n Br. of Chicago Park District at 18.)

Using these two numbers, supplied by on-the-record testimony at trial, the
District Court could, and should, have calculated the minimum amount of contract
damages suffered by Kelley: $825,000. While this may not be a calculation that the

Chicago Park District likes, there was the opportunity to present opposing expert
testimony at trial regarding the value of

Wildflower Works. The Chicago Park

District did not do so. While the Chicago Park District, in a response brief, offers all
sorts of

reasons why this calculation might not be accurate, the value of damages

was a question of fact that should have been evaluated at triaL. The Chicago Park

District presented no relevant evidence.
Although only Kelley presented evidence regarding damages, relying on

expert testimony, the court found that Kelley failed to consider certain costs, costs
properly regarded as mitigation. Kelley, 2008 WL 4449886 at *9 (identifying costs of
plant removal). The Chicago Park District raises these same costs on appeaL. (Opp'n

Br. of Chicago Park District at 18 (identifying costs of removal, costs to restore

7 Kelley believes that the actual destruction was more in realm of 90% of the work, but,

for purposes of this appeal, his argument is based upon the factual findings by the

District Court.
24

land).) But, it is black letter law that the burden of proof is on the defendant to show
what damages the plaintiff could mitigate. See, e,g., Washington Courte Condo.
Assoc.-Four v. Washington-Golf Corp., 643 N.E.2d 199, 220 (IlL. App. Ct. 1994)

(holding that "the party asserting non-mitigation of damages bears the burden of
proof as to the extent of non-mitigation") citing Pioneer Bank & Trust Co. v, Seiko
Sporting Goods, Co., 540 N.E.2d 808, 813 (Ill. App. Ct. 1989). And all the unproven

(and unquantified) costs about which the District Court and the Chicago Park
District object are costs that Kelley would have incurred in removing wildflowers to
prevent the wilful destruction by Chicago Park District of

Wildflower Works. Those

are costs of mitigation.

Chicago Park District also raises the merit1ess argument of avoidable

consequences. Chicago Park District suggests that, rather than challenging Chicago
Park District's mutilation of

Wildflower Works, Kelley should have voluntarily

removed the wildflowers. The absurdity of this suggestion is clear; his desire to
remove Wildflower Works before the Chicago Park District's action is exact1y why

Kelley sued for breach of contract. He expected written notice of at least ninety days
to arrange for the removal of his artwork to avoid its destruction-the Chicago
Park District did not provide even a week. He is now before this Court

complaining that he was not provided a reasonable opportunity to remove his life's

work. Kelley would have loved to have avoided all of his damages. He wasn't given
an opportunity and the Chicago Park District's argument in this regard stands logic

on its head.

25

Consequently, because of the failure of the District Court to award damages,

this case must be remanded for further proceedings. The District Court must
properly calculate the breach of contract damages owed to Kelley. Likewise, because
the District Court erroneously determined that Wildflower Works was not entitled
to protection under V ARA, the court did not award V ARA damages. The District

Court must also correct this error, and award VARA damages.

III. THE PLAIN LANGUAGE OF THE CHICAGO PARK DISTRICT ACT GRANTS CORPORATE AUTHORITY TO THE INDIVIDUAL COMMISSIONERS, NOT THE COMMISSION, OF THE CHICAGO

PARK DISTRICT
The Chicago Park District's appeal of the District Court's finding of a breach

of contract is limited to the claim that Chicago Park District Commissioner

Margaret Burroughs did not have the authority to bind the Chicago Park District
under the relevant municipal code.8 The Chicago Park District's claim is untenable.
Indeed, the District Court correctly determined that Margaret Burroughs had the

requisite authority.
The relevant municipal code states that "(t)the commissioners of such district

constitute the corporate authorities thereof. . . and have full power to manage and
8 The Chicago Park District engaged in an extensive discussion of estoppel in the
Opposition Brief. (Opp'n Br. of Chicago Park District at 28.) While the District Court

found Chicago Park District liable for breach of contract, Kelley, 2008 WL 4449886 at
*7 -8, and did not address equitable estoppel, the doctrine of equitable estoppel would be

an alternative ground on which to uphold the finding of Chicago Park District liability. Contrary to Chicago Park District's assertions, there were two affirmative acts that
induced Kelley's reliance. First, Margaret Burroughs told Kelley that Wildflower Works

was permitted to remain at Grant Park. Id. The District Court found this statement affirmative enough to create an implied contract. Id. Second, the Chicago Park District
allowed Kelley to maintain Wildflower Works for 10 years after the last written permit expired. Id. at *2-3.
26

control all the officers and property of the district, and all parks. . . maintained by

such district or committed to its care and custody." 70 ILCS 150517.01 (emphasis

added). There can be no serious dispute that 70 ILCS 150517.01 granted Margaret
Burroughs the authority to bind the Chicago Park District. To be clear, Black's law
dictionary defines commissioner as "a member of a commission." (Black'8 Law
Dictionary, 8th Ed. 2004). The use of

the word "authorities" in the statute indicates,

by plain language, that there is more than one corporate authority. Thus, the

combination of the words "commissioner" and "authority" identifies each

commissioner as a corporate authority.

This plain language interpretation is supported by the statutory language
used elsewhere in the statute.9 The word "commission" is used in instances where

the statute grants power to the Chicago Park District commission, rather than to
the commissioners, individually. See, e.g., 70 ILCS 1505/17, 70 ILCS 1505/19, 70

ILCS 1505/23. The phrase "Chicago Park District" is used where the statutory
language defines the powers of the "Chicago Park District" generally, rather than

9 Appellee Chicago Park District's citation to 70 ILCS 1505/4 is irrelevant. That section

describes how the commissioners form the commission by electing an executive officer and supporting administrative officials, and how that commission, once formed, executes official actions. Because corporate authority is granted to the individual commissioners, not the commission, the exercise of corporate authority does not involve any official action of the commission.

Nor does the Code of the Chicago Park District contradict the plain language of the Chicago Park District Act. As a threshold matter, an ordinance of the commission could
not contradict a statutory enactment of the Ilinois legislature. But the Code simply

vests management and control in the commission "as created and established by the
Park Act." Chapter II(A)(1).

27

the power of the commission or the commissioners individually. See, e.g., 70 ILCS
1505/7, 70 ILCS 1505/7.01, 70 ILCS 1505/7.04.

The use of the language "commission" and "Chicago Park District" indicates
that the drafters of this statue were fully aware of, and indeed did use, collective

language where power was granted to a collective body. The clear inference is that

the use of the word "commissioner" is a deliberate reference to the individual
commissioners. If the statute instead granted corporate authority to the collective

commission, the statute should read 'the commission of such district constitutes the
corporate authority thereof.

In sum, the Chicago Park District cannot prove that Margaret Burroughs
lacked the authority to bind the Chicago Park District. She had the authority and

exercised it to create a contractual obligation to Chapman Kelley. The District
Court correctly determined that the Chicago Park District breached that
contractual obligation when it chose to mutilate Chapman Kelley's Wildflower

Works.

CONCLUSION

For the reasons stated above, Chapman Kelley respectfully requests that this
Court reverse the District Court's determinations that (1) the Chicago Park District
did not violate VARA by mutilating Wildflower Works and (2) that Chapman Kelley

did not offer sufficient evidence to establish damages for breach of contract, and
that this Court affirm the District Court's conclusion that the City breached its

contractual obligations to Chapman Kelley by mutilating Wildflower Works without
28

proper and timely notice. Chapman Kelley also respectfully requests that this Court

remand to the District Court for the determination of damages appropriate for
breach of contract and for breach of Chapman Kelley's VARA rights.

Dated: June 12,2009

Respectfully submitted,

Aréx L. Karan (ARDC No. 6272495)
Micah E. Marcus (ARDC No. 6257569)

/~

Hector C. Bove (ARDC No. 6295946) KIRKLAND & ELLIS LLP
300 North LaSalle

Chicago, Illinois 60654
(312) 862-2000 (telephone)

(312) 862-2200 (facsimile)

Counsel for Appellant Chapman Kelley

29

CERTIFICATE OF COMPLIANCE

Pursuant to Circuit Rule 32(a)(7)(B), the undersigned counsel certifies that
this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B)

because this brief contains 8320 words. Counsel further certifies that this brief
complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the typestyle requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared

in a proportionally spaced typeface using Microsoft Word 2000 in Century

Schoolbook type style and 12 point type in the body of the brief and 11 point type in
the footnotes.

Dated: June 12, 2009

Respectfully submitted,

Alex L. Karan (ARDC No. 6272495) Micah E. Marcus (ARDe No. 6257569) Hector C. Bove (ARDC No. 6295946) KIRKLAND & ELLIS LLP
300 North LaSalle

.~..... M~_e~-

Chicago, Illinois 60654
(312) 862-2000 (telephone)

(312) 862-2200 (facsimile)

Counsel for Appellant Chapman Kelley

30

CIRCUIT RULE 30(D) STATEMENT
Pursuant to Circuit Rule 30(d), I hereby certify that all material required by
Circuit Rule 30(a) and (b) is included in the Appendices filed with the Opening Brief
of Appellant. The material required by Circuit Rule 30(a) is included with the

Opening Brief filed by the Appellants. The material required by Circuit Rule 30(b)
is separately filed.

Dated: June 12,2009

Respectfully submitted,

Alex L. Karan (ARDC No. 6272495)

~¿~~~~----

Micah E. Marcus (ARDC No. 6257569)

Hector C. Bove (ARDC No. 6295946) KIRKLAND & ELLIS LLP
300 North LaSalle

Chicago, Illinois 60654
(312) 862-2000 (telephone)

(312) 862-2200 (facsimile)

Counsel for Appellant Chapman Kelley

31

CIRCUIT RULE 3l(E) CERTIFICATION
Pursuant to Circuit Rule 31(e), the undersigned counsel certifies that a
digital version of this brief and all of the appendix items that are available in non-

scanned portable document ("PDF") format have been filed with the Court on CDROM, that the digital version is in PDF format and was generated by printing to
PDF from the original word processing file, and that the CD-ROM containing the

digital version is virus-free.
Dated: June 12,2009

Respectfully submitted,

Alex L. Karan (ARDC No. 6272495)
Micah E. Marcus (ARDC No. 6257569)

.¿~-~

Hector C. Bove (ARDC No. 6295946)

KIRKLND & ELLIS LLP
300 North LaSalle

Chicago, Illinois 60654
(312) 862-2000 (telephone)

(312) 862-2200 (facsimile)

Counsel for Appellant Chapman Kelley

32

CERTIFICATE OF SERVICE
I, Micah Marcus, hereby certify that on June 12, 2009, I did cause a true and
correct copy of the foregoing Response and Reply of Plaintiff-Appellant, Cross-

Appellee Chapman Kelley, as well as a digital version of this brief to be served by
overnight mail upon the following:

Annette M. McGarry McGarry & McGarry, LLC 120 N. LaSalle, #1100 Chicago, IL 60602

David Donnersberger
Nelson A. Brown, Jr.

Chicago Park District Law Department
541, N. Fairbanks Court, 3W Chicago, IL 60611

Alex L. Karan (ARDC No. 627249ñ)
Micah E. Marcus (ARDC No. 6257569)

4v~

Hector C, Bove (ARDC No. 6295946) KIRKLAND & ELLIS LLP
300 North LaSalle

Chicago, Illinois 60654
(312) 862-2000 (telephone)

(312) 862-2200 (facsimile)

Counsel for Appellant Chapman Kelley

33

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