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No. 08-8701 & 08-3712 yesneeD INTHE AR 45 ‘2oi\ RNS United States Court of Appeal, g,Agyer® 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 PETITION FOR REHEARING EN BANC Micah E. Marcus Diana Torres KIRKLAND & ELLIS LLP Khaldoun Shobaki 300 North LaSalle Street Gunnar B, Gundersen Chicago, IL 60654 (applications pending) (312) 862-2000 KIRKLAND & ELLIS LLP 333 South Hope Street Los Angeles, CA 90071 (218) 680-8400 Counsel for Appellant /Cross-Appellee Chapman Kelley March 15, 2011 DISCLOSURE STATEMENT. Appellate Court No: 08-3701 & 08-3712 Short Caption: Chapman Kelley v. Chicago Park District ‘To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1, The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be included in front of the table of contents of the party's main brief, Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if this form is used. (1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure information required by Fed. R. App. P. 26.1 by completing item #3): Chapman Kelley 2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court: Kirkland & Ellis LLP Law Office of Frank P. Hernandez Law Office of Susan Hays PC Law Office of Richard C, Balough (8) If the party or amicus is a corporation: i) Identify all its parent corporations, if any; and NA list any publicly held company that owns 10% or more of the party's or amicus’ stock: NA Attorney's Signature: Date: March 15, 2011 Attorney's Printed Name: Micah E. Marcus Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(4). Yes _X_ No. Address: 300 North LaSalle Chicago, IL 60654 Phone Number: (312) 862-2000 Fax Number: (312) 862-2200 E-Mail Address: micah.marcus@kirkland.com CIRCUIT RULE 261 DISCLOSURE STATEMENT Appellate Court No: 08-3701 Short Caption; Chapman Kelley v Chicago Park District Tene ges dati wheter res sto roi an ao ano vrata po ais curt, or pte atmey rpresenting government pary, mus fumush a dtstrcsacmet providing he {slowing infomation in conplence wih Cie ue 2ol and Fed. App. Pea ‘The Court prefers tat the disclosure statement be filed immediately following docketing; but, the disclosure statement must be filed within 21 days of docketing or upon the filing of motion, response, petition, or answer inthis court, whichever occurs fics, Attomeys are required to file an amended statement to reflect ey material changes in the required information, The text ‘of the statement must also be included in front of the table of conteats of the partys main brief. Counsel is required to complete the entire statement and to use N/A for any information that is not applicable If this form fs used. {| PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED AND INDICATE WHICH INFORMATION IS NEW OR REVISED. (1) ‘The full mame of every party that the attorney represents inthe case ifthe party isa corporation, you must provide the corporate disclosure ion required by Fed. R. App. P26.1 by completing item #3): (Chapman Kelley (@) The anmes of al law frms whose partners or associates have appeared for the party inthe case (including. proceedings inthe district cout or before an administrative agency) or are expected fo appear forte pasty i his court Kiedand and Elis, LLP; Law Office of Richard ©. Balough: Law-Offce of Frank P. Hernandez; Law Office of Susan Hays, PC USGA. 7 Cie (G) IE the party or amicus is a corporation: RECA EY Gisuie 8) Adoni ali ons, if aay; and ance ec f any; AUS 2 + ama wfA t GING J, AGHELcG ii) lst any publicty held company that owns 10% or more of the party's or amicus” stock: C1. Pa MA soney sone Up a: 08/19/2009 ‘Altos Piated Name: Micah Marcus, Plein ify ae Counsel of Record fr the above listed patie prsattoCucitnaie3(9. Yer [] we LX]. ‘Adirear island and Ells LLP, 300 North LaSalle, Chicago, IL 60654 p 3128622165 ex tnber, 912-862-2200 ei, micah marcus@kirKand.com rev. 01/08 AK, CIRCUIT RULE 26.1. DISCLOSURE STATEMENT Appellate Court No: 08-3712 Short Caption: Chapman Kelley v. Chicago Park Distict ‘To enable the judges to determine whether recusal is necessary or appropriate, an attomey for a noo-governmeatal party or eatin, vate atomey reprtetng a goverment par, must fish a dcloniresaemest proving te following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1 ‘The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement rust be filed within21 days of docketing or upon the filing of motion, response, petition, or answer in this court whichever oocurs first, Attoreys are required to file an amended statement to reflect any material changes in the required information, The text of the statement must also be included in front of the table of contents of the partys main brief. Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if tis form is used, {1 PLBASE CHECK HERE IF ANY INFORMATION ON THIS FORM JS NEW OR REVISED AND INDICATE WHICH INFORMATION IS NEW OR REVISED. (1) The full name of every party thatthe attorney represents in the case (if the party is a corporation, you must provide the ‘corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3 (Chapman Kelley (@) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings inthe district court or before an administrative agency) or are expected to appear forthe party in this cour: ‘irdand and Els, LLP; Law Office of Richard C. Balough; Law Office of Frank P. Hemandez; Law Office of ‘Susan Hays, PC (9) Ifthe pay or amicus is corporation: 4) Identity al its pareat corporations, if any and WA i list any publicly held company that owns 10% or more of the party's or amicus stock: MA AtornysSigatue Molo —~ Dee awe009 ‘Atom Pinted Name: Micah Marous Plas int you te Cosel of Record for the above lise pare punto Coeur Rle3(@, Yer L—_] wo DX) ‘Adires: Kirkland and Elis LLP, 300 North LaSalle, Chicago I 60854 one Number, 312-852-2165 ‘Fax Nunben 912-062-2200 E-Mail Adcess; THAh-marcus@kirkland.com rev. 0108 AK RULE 35(b) STATEMENT. 1. The Panel's decision conflicts with the Supreme Court’s decision in Feist Publins, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 845 (1991); this Court’s decision in Roulo v. Russ Berrie & Co., 886 F.2d 931, 939 (7th Cir. 1989); and the plain language of 17 U.S.C. § 101 et seq. Accordingly, consideration by the full Court is necessary to secure and maintain uniformity of the Court's decisions. 2. ‘This proceeding involves two questions of exceptional importance with respect to the uniform enforcement of copyright law: () — Is.an “original” work of art “unauthored” if the piece incorporates elements created by nature? Gi) Ifa work of art is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration” doos the mere inclusion of living material as part of the work render it not “fixed” for purposes of copyright? iii TABLE OF CONTENTS DISCLOSURE STATEMENT RULE 35(b) STATEMENT... TABLE OF CONTENTS... TABLE OF AUTHORITIES... i THE PANEL ERRED IN FINDING THAT CHAPMAN KELLEY DID NOT AUTHOR WILDFLOWER WORKS.. I. THE PANEL'S RULING THAT WILDFLOWER WORKS WAS NOT “FIXED” AS REQUIRED BY 17 U.S.C. § 101 CONTRAVENES WELL-ESTABLISHED PRECEDENT IN THIS CIRCUIT AND ELSEWHERE. CONCLUSION iv TABLE OF AUTHORITIES Cases Berkla v. Corel Corp., 66 F. Supp. 2d 1129 (E.D. Cal. 1999). Bruce v. Weekly World News, Inc., 810 F.3d 25 (Ist Cir. 2002). Carrel v. Shubert Organization, Inc., 104 F. Supp. 2d 236 (S.D.N.Y. 2000)... Feist Publ’ns., Inc. v. Rural Tel. Service Co.; Inc., 499 US. 340 (1991) . MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993) .. M. Kramer Mfg. Co., Inc. v. Andrews, 783 F.2d 421 (4th Cir. 1986). Mass. Museum of Contemporary Art Foundation v. Biichel, 593 F.3d 38 (Ist Cir. 2010). NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231 (7th Cir. 1995) Psihoyos v. Nat'l Geographic Soc’y, 409 F. Supp. 2d 268 (S.D.N. = 2008) Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992) Ruolo v. Russ Berrie & Co., 886 F.2d 931 (7th Cir. 1989) SimplexGrinnel LP v. Integrated Sys. & Power, Inc., 642 F. Supp. 2d 206 (S.D.N.Y. 2009) Stenograph L.L.C. v. Bossard Associates, Inc., 144 F.8d 96 (D.C. Cir. 1998) Stern Electronics, Inc. v. Kaufman, 669 F.2d 852 (2nd Cir. 1982)... Time Inc. v. Bernard Geis Assocs., 298 F. Supp. 130 (S.D.N.Y. 1968) Toney v. L'Oreal USA, Inc., 406 F.3d 905 (7th Cir. 2008)... Urantia Foundation v. Maaherra, 114 F.8d 955 (9th Cir. 1997)... Williams Elecs., Inc. v. Artic Int'l, Inc. 685 F.2d 870 (3d Cir. 1982) Statutes 17US.C. § 101. ii, 1, 10, 14 3 17 U.S.C. § 1024). Rules Tth Cir. R. 40¢).. ‘Treatises 2 Patry on Copyright § 3:19... INTRODUCTION On February 15, 2011, a three-judge panel of this Court issued an opinion holding that Chicago's “Wildflower Works,” a world-famous sculpture and painting created by award-winning artist Chapman Kelley from native flowers, gravel and steel, and maintained by Mr. Kelley for nearly two decades, is not copyrightable. In so holding, the Panel effectively created two new tests under the Copyright Act. The Panel's holding is inconsistent with the Copyright Act as interpreted by the Supreme Court, this Court and every other circuit court in the country. “The sine qua non of copyright is originality.” Feist Publ'ns., Inc. v. Rural Tel, Service Co, Inc., 499 U.S. 840, 845 (1991). To qualify for protection, a work must be “original to the author,” the person who contributed the original ideas or creativity. Jd. A work must also be sufficiently fixed in a tangible medium such that it can be perceived by a viewer. See 17 U.S.C. § 101. “The Supreme Court repeatedly construed [originality, authorship and fixation] in relation to one another or perhaps has collapsed them into a single concept; therefore writings are what authors create, but for one to be an author, the writing has to be original.” Opinion at 30. Authorship and fixation are subsumed into the test for originality. Nonetheless, although the parties did not dispute that Wildflower Works was both a sculpture and a painting—and despite the Panel's holding that Wildflower Works was original under the Copyright Act—the Panel held that Mr. Kelley's work was “not the kind of authorship required for copyright.” Opinion at 30. Moreover, the Panel reasoned that Wildflower Works was not sufficiontly “fixed” to meet the Copyright Act's fixation requirement, even though it had been seen and photographed by millions and met the standard for fixation applicable in this Circuit. The Panel's Opinion on the authorship and fixation of Wildflower Works is wrong in two critical ways: First, that Chapman Kelley authored Wildflower Works is beyond legitimate dispute. The Panel unambiguously ruled that Wildflower Works was an original work of postmodern art authored by Mr. Kelley. Opinion at 26-29. Accordingly, by definition under the Supreme Court’s holding in Feist Publ’ns., Inc. v. Rural Tel. Service Co., Inc., 499 U.S. 340, 345 (1991), Mr. Kelley “authored” Wildflower Works. ‘That Mr. Kelley did not “author” the native flowers he used to create his original artwork does not render his artwork beyond the scope of copyright protection. Indeed, most, if not all, art is created through an artist's use of material created by others or occurring in nature. The Panol’s new “wrong kind of authorship” standard: (j) is contrary to the Supreme Court’s ruling in Feist; (i) is inconsistent with this Court's ruling in Ruolo v. Russ Berrie & Co., 886 F.2d 981 (7th Cir. 1989); and (ii) would dramatically alter the scope of copyright protection as it exists today. Second, Wildflowor Works was “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” The Panel itself admits this fact, Opinion at 33, and, indeed, even includes a picture of Wildflower Works, Opinion at 6, thus leaving no doubt that the work is sufficiently permanent to be perceived for more than a transitory duration, Wildflower Works was thus “fixed” for purposes of copyright protection. Nonetheless, the Panel found against Mr. Kelley because Wildflower Works, though “fixed” as defined by 17 U.S.C. § 102(a), was constantly changing along with the life cycles of the flowers included in the work. Opinion at 32-35. The Panel's articulated “stable fixation” test has no basis in law, is contrazy to all existing authorities on this point and should not be allowed to stand.t WHAT WAS WILDFLOWER WORKS? Wildflower Works was a painting and sculpture,? made up of “two large-scale elliptical flower beds" covering approximately 1.6 acres in Chicago's Grant Park. Opinion at 5. Bold ellipse-shaped outlines featuring portraits of landscapes and flowers are a hallmark of Mr. Kelley's work. The ellipses were bordered with gravel and steel and were planted with “between 48 and 60 species of self-sustaining [native] wildflowers” selected by Mr. Kelley, who “designed the initial placement of the wildflowers so they would blossom sequentially, changing colors throughout the growing season and increasing in brightness towards the center of each ellipse.” Id. at 5-6. The flowers were arranged in concentric rings, and organized to bloom sequentially so that the exhibit would vary with the seasons. Wildflower Works was installed in 1984 and maintained by Mr. Kelley and a group of volunteers for the next 20 years. Id, at 6-8. Wildflower Works was widely lauded, and marketed to tourists by the Chicago Park District as “living landscape art.” Opinion at 6. It + Despite implementing a significant departure from existing law on the issues of authorship and fixation, the Opinion was not circulated among the active members of the Court for en banc consideration prior to publication. See 7th Cir. R. 40(e). 2 ‘The Park District did not appeal the District Court's finding that Wildflower Works was both a painting and a sculpture and the Panel did not reverse that finding. Opinion at 22, 26. Paintings and sculptures are codified as works of “authorship” under the Copyright Act. 17 U.S.C. § 102(a)(5). has been recognized as a significant work of art by numerous institutions, including the Graduate School of Design at Harvard University, the Boston Museum of Fine Arts, the Schools of Art and Architecture at Yale University, the Pennsylvania Academy of Fine Arts, and the School of the Art Institute of Chicago. ARGUMENT I THE PANEL ERRED IN FINDING THAT CHAPMAN KELLEY DID NOT AUTHOR WILDFLOWER WORKS Wildflower Works was authored by Chapman Kelley. As the Panel found, Wildflower Works was Mr. Kelley's original work of art. Opinion at 26-28. Though the individual flowers incorporated into the work would not be copyrightable themselves, the Panel found that Mr. Kelley applied the necessary creative spark in his detailed artistic expression to establish the “originality” of Wildflower Works, as that term was defined by the Supreme Court in Feist Publ'ns., Inc., 499 U.S. at 345, Opinion at 28, ‘To be original means “that the work was independently created by the author . .. and that it possesses at least some minimal degree of creativity.” Id. (emphasis added). Simply, by finding that Wildflower Works was an “original” work by Mr. Kelley, the Panel implicitly admitted that Mr. Kelley had, in fact, authored the piece. See Opinion at 27 (holding originality “requires ‘only that the work was independently created by the author ....”). In sum, Wildflower Works was plainly original under the Copyright Act, and that should be the end of the analysis of whether it was a work protected by the law. But the Panel did not stop there. Apparently troubled by the medium of expression, the Panel held that Mr. Kelley's creation and authorship of Wildflower Works “is not the kind of authorship required for copyright” because the work incorporated living elements. Opinion at 32 (emphasis added). In other words, the Panel decided that there was a “right kind of authorship" and a “wrong kind of authorship” under the Copyright Act. While the Panel asserts that it is not holding “that artists who incorporate natural or living elements in their work can never claim copyright,” Opinion at 33, it never explains what “kind of authorship” involving living elements would meet its new standard for authorship. And despite holding that Wildflower Works “plainly possesses more than a little creative spark,” Opinion at 28, the Panel nonetheless held that Mr. Kelley's numerous creative decisions in the creation of Wildflower Works did not make him the “right kind of author” for purposes of copyright protection, Respectfully, the Panel's “wrong kind of authorship” rule has no boundaries, and is inconsistent with the law. An example of the inconsistency in the authorship holding is contained within the Opinion itself. The Panel concedes that a designer's “plan for a garden . . . in writing” is subject to copyright protection. Opinion at 33. ‘Thus, a blueprint for Wildflower Works—embodying all of Mr. Kelley's original decisions about shape, design, flower selection and placement on paper—is the * Tothe extent the Panel's opinion suggests that Wildflower Works is not authored by a human because the flowers are subject to an infinite variety of permutations, it is also erroneous. See Berkla v. Corel Corp., 66 F. Supp. 2d 1129, 1141 (B.D. Cal. 1999). “[PJlant ‘components themselves are relatively unchangeable, e.g., aside from the rare exception, clovers have three petals, and will not have shapes that significantly vary. Their color, although potentially multi-hued, is relatively constant within the specific species. Unlike higher forms of life, the plants and flowers, as seen in nature, do not have a multitude of common expressions.” In other words, the flowers selected by Mr. Kelley, once planted, would follow a predictable and constant trajectory of growth, flowering and dormancy. Indeod, it was the very regularity upon which Mr. Kelley relied when he chose and placed flowers in different locations to create patterns in Wildflower Works, 5 “kind of authorship” that the Panel recognizes.* The only difference between the blueprint and the work of art in Grant Park, however, is the building of the ellipses and planting of the flowers. ‘The Panel's reliance on Toney v. L'Oreal USA, Inc., 406 F.3d 905, 910 (7th Cir. 2005), suggests a source of the Panel's error. Toney stands for the proposition that a model's likeness or person (e.g., her face) is not authored or fixed. Toney would apply here only if Mr. Kelley claimed that the flowers themselves were the subject of his copyright. But he does not; he makes no claim to have authored or to have a copyright in any of the specific flowers in Wildflower Works. Rather, his claim is that the work as a whole is subject to protection as embodying a series of creative and artistic decisions in a unique painting or sculptural work. The choice of medium, whether it be paper or a patch of earth surrounded by gravel and steel and planted with seeds does nothing to reduce Mr. Kelley’s authorship of the work. The uncertain nature of the Panel's “wrong kind of authorship” rule is also evident in its discussion of artist Jeff Koons’ work of art, “Puppy.” Opinion at 34 36. Puppy consists of a “huge metal frame in the shape of a puppy... covered... with thousands of blooming flowers sustained by an irrigation system within the frame.” Id, The Panel claims that though Puppy might be entitled to copyright protection, “Wildflower Works is quite different. It is essentially a garden; ‘Puppy’ is not.” Id, at 35. The Panel does not explain how one of these works involves ‘ Related to this holding, a detailed blueprint of Wildflower Works does exist and was ‘used in connection with Mr. Kelley's first discussions with the City prior to Wildflower Works’ installation in 1984. authorship while the other does not—because it cannot. Jeff Koons did not create the blooming flowers that predominate his work any more than Mr. Kelley created the flowers in his work. Puppy and Wildflower Works, works of art incorporating flowers within large metal frames supported by irrigation systems, are not subject to legitimate distinction regarding authorship outside of the Panel's own subjective view of art. Nor is there any basis for a “wrong kind of authorship” rule based on whether and to what degree natural components predominate in a work. On this point, the Panel's reliance on leading copyright treatise, Patry on Copyright, is unavailing. ‘The sections of Patry relied upon by the Panel stand for the unexceptional position that “[mJaterials produced solely by nature, by plants, or by animals are not copyrightable.” 2 Patry on Copyright § 3:19 n.1 (online ed.) (emphasis added). Patry does not say that authorship requires every single element of a work to have been created by the author (and not by nature), because that is not the law. See, e.g., Feist, 499 U.S. at 348 (noting that a copyright on a work does not mean that every element of that work is protected by the copyright). For example, “Scenes a faire are unprotectible elements that follow naturally from a work’s theme rather than from an author's creativity.” MyWebGrocer, LLC v. Hometown Info, Inc., 375 F.3d 190, 194 (2d Cir. 2004). However, even works that include scenes a faire, like “the familiar figure of the Irish cop,” are subject to copyright protection to the extent 5 A holding that some gardens are sufficiently original to be copyrighted would not, as the Panel seemed to fear, open a Pandora's Box—since, as the Panel already concedes, blueprints and plans for gardens and landscape designs are already subject to copyright. Opinion at 33. that they embody original choices by the author. Id. Simply, as explained by this Court in Ruolo, while single elements of a copyrighted work may not be “individually capable of protection, just as individual words do not desérve copyright protection, it is the unique combination of these common elements which form the copyrighted material.” 886 F.2d at 939. Finally, the Copyright Act does not require that the author of a work, or even a human, have created all aspects ofa copyrighted work. The unexceptional fact that a work of authorship can incorporate and be predominated by natural elements is evident in the realm of photography. Photographs of humans, animals and plants are indisputably subject to copyright protection. E.g., Bruce v. Weekly World News, Inc., 310 F.3d 25 (1st Cir. 2002) (photograph of William Clinton); Rogers v. Koons, 960 F.2d 301, 307 (2d Cir. 1992) (photograph of puppies); Time Inc. v. Bernard Geis Assocs., 293 F. Supp. 180, 142-48 (S.D.N.Y. 1968) (Zapruder film). Without doubt, the photographer's “authorship” does not depend on whether the underlying subject of his work is living or even whether or not he had any role in creating or forming that underlying subject (which itself is not subject to copyright protection). See Psihoyos v. Nat'l Geographic Soc’y, 409 F. Supp. 2d 268, 275 (S.D.N.Y. 2005) (‘To © Indeed, a copyright can be authored under the Copyright Act even when the authors believe, and the court assumes, that the source of the content contained in a book is non- human. See Urantia Foundation v. Maaherra, 114 F.3d 956 (9th Cir. 1997). The Urantia court addressed a book that both parties agreed was “authored by non-human spiritual beings.” 114 F.3d at 957 (quotation omitted). ‘The court explained that “because [the human authors] were responsible for the revelations appearing in such a way as to render the work as a whole original,” a copyright existed. Id. at 958 (quotations omitted). Thus, the court acknowledged that even if some portions of a copyrighted work are created by non-human spiritual beings (and thus not “authored” themselves), the original portions of the work created by humans are still authored and thus protected by copyright. 8 the extent a photograph captures the characteristics of an object as it occurs in nature, these characteristics are not protectibl What makes a photographer the author of a photograph of a living subject includes the photographer's selection of the pose of the subject, his choice of lighting and angle, his choice of which of the subject's expressions to capture, his choice of the lens and the camera and almost any other variant involved. See, e.g., Rogers, 960 F.2d at 307 (2d Cir. 1992). There is no real difference between the originality expressed by the author of a photograph of a flower and Mr. Kelley's use of flowers in his art. Indeed, the Copyright Office recognizes that authorship, and hence copyright protection, does not depend on the characteristics of the subject or the medium. A search of the Copyright Office's online records reveals that well-known food retailer Edible Arrangements has been afforded copyright protection for its floral and fruit sculptures such as “Berry bouquet,” Reg. No. VA0001021475; “Blooming daisies,” Reg. No. VA0001021473; “Delicious celebration,” Reg. No. VA0001021474; “Delicious fruit design,” Reg. No. VA0001021472; and “Hearts and berries,” Reg. No. VA0001021476. Similarly, American Sand Art Corporation has been granted numerous copyright registrations for its sand sculptures, such as “Large flamingo,” Reg. No. VA0000603490; “Macaw parrot,” Reg. No. VA0000603407; and “Extra large castle,” Reg. No. VA0000603493. Certainly, if copyright registrations are granted for sculptures made of plucked fruit, flowers or sand, all of which were created solely by nature or plants, then authorship does not turn on human creation of the medium. In sum, the Opinion creates an unprecedented, murky and unbounded “wrong kind of authorship” rule that is contrary to the copyright law as explained by the Supreme Court and every Circuit, including the Seventh. This new test not only improperly deprives Mr. Kelley of copyright protection, but threatens to undermine the viability in this Circuit of any copyrighted work that incorporates otherwise unprotected elements (like flowers) that are not of the author’s personal creation. For that reason alone, this case is worthy of en bane review. Ul. THE PANEL’S RULING THAT WILDFLOWER WORKS WAS NOT “FIXED” AS REQUIRED BY 17 U.S.C. § 101 CONTRAVENES WELL- ESTABLISHED PRECEDENT IN THIS CIRCUIT AND ELSEWHERE ‘A work is “fixed” in a tangible medium of expression “when its embodiment . . - is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” Opinion at 30 (citing 17 U.S.C. § 101). That Wildflower Works meets this standard is clear. Indeed, the Panel itself acknowledged that Wildflower Works was “tangible and [could] be perceived for more than a transitory duration.” Opinion at 33. The question of whether Wildflower Works met the constitutional element of “fixation” should have ended there. It did not. Instead, the Panel reasoned that because the flowers used in Wildflower Works were in a state of “perpetual change,” Wildflower Works itself could not qualify as fixed for purposes of copyright protection. Opinion at 33. In other words, as it did with authorship, the Panel devised a new test under copyright, law. According to this test, works made, in whole or in part, from organic or 10 otherwise changing materials can never be deemed fixed and therefore can never qualify for protection under the Copyright Act. The Panel’s conclusion that a work that is both “tangible” and capable of “befing] perceived for more than a transitory duration” may nonetheless fail to meet the Copyright Act’s fixation requirement is at odds with every Circuit that has examined this issue. In Williams Elecs., Inc. v. Artic Int'l, Ine., for example, the ‘Third Circuit found that a work can be fixed even if outside influences constantly cause to change, 685 F.2d 870, 874 (3d Cir. 1982). In that case, the defondant challenged the copyrightability of a video game's “play mode,” on the grounds that its continually changing nature due to the actions of its players rendered it not “fixed” under the Copyright Act. Williams, 685 F.2d at 874. The Court rejected that argument, reasoning that even though: there is player interaction with the machine during the play mode which causes the audiovisual presentation to change in some respects from one game to the next in response to the player's varying participation, there is always a repetitive sequence of a substantial portion of the sights and sounds of the game, and many aspects of the display remain constant from game to game. Id, Similarly, in Stern Electronics, Inc. v. Kaufman, , the Second Circuit held that the video game “Scramble” is copyrightable even though player participation continuously changes the expression of the work. 669 F.2d 852, 856 (2nd Cir. 1982). Additionally, in M. Kramer Mfg. Co., Inc. v. Andrews, the Fourth Circuit 1 Similarly, make-up designs for the Broadway show Cats registered with the Copyright Office “are fixed in tangible form on the faces of the Cats actors” even though, by their nature, they change each second and are erased at night, only to be re-created the next day ina manner that cannot be exactly the same. Carrel v. Shubert Organization, Inc., 104 F. Supp. 2d 236, 244, 247 (S.D.N.Y. 2000). i held that a video game company could copyright the audiovisual portions of a video poker game which depends on player interaction. 783 F.2d 421, 441-42 (4th Cir. 1986). Other circuits have also found the fixation requirement met even where the expression is inherently ephemeral. For example, both the Ninth Circuit and the Fourth Cireuit have held that software stored only temporarily in RAM before giving way to free space is considered sufficiently fixed to be copyrightable. In MAI Sys. Corp. v. Peak Computer, Inc., for example, the Ninth Circuit held that software stored in RAM was fixed despite the fact that “[iJt is a property of RAM that when the computer is turned off, the copy of the program recorded in RAM is lost.” 991 F.2d 511, 518 (9th Cir. 1993), rev'd on other grounds, eBay, Inc. v. MercExchange, L.L.C,, 547 U.S. 388 (2006). The Ninth Circuit came to this conclusion because after loading the software into RAM, a technician could review error logs and perform diagnostics based on that copy. Id. at 518. Similarly, in Stenograph L.L.C. v. Bossard Associates, Inc., the D.C. Circuit held that stenography software could be fixed in RAM even though it was not a “permanent storage medium, such as a floppy disk or a computer's hard dri 144 F.8d 96, 101 (D.C. Cir. 1998). Neither court found that the inherently temporary nature of a RAM copy was relevant to its, copyright analysis. See MAI Sys., 991 F.2d at 519; see also NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 235 (7th Cir. 1995) (citing MAI Sys. Corp. with approval). 12 Here, Wildflower Works lasted in ite original form for 20 years. Unlike a copy in RAM, it did not, and was not designed to, change within seconds or even minutes. Rather, as designed, tho changes in Wildflower Works happened over the course of months as spring gave way to summer and fall, and fall segued into winter, and so forth. And, although the flowers in Wildflower Works changed due to external influences, “there [was] always a repetitive sequence of a substantial portion of the sights” of Wildflower Works. Indeed, the seasonal changes themselves created such a repetitive sequence, i-e., flowers bloomed in the spring and faded in the fall only to restart the identical circle of events the following year. As the Panel noted, Wildflower Works includes the physical presence of the flowers, the soil formations, the flower pattern and the carefully constructed gravel and steel ellipses bordering Wildflower Works’ numerous rings. See Opinion at 2. In other words, “many aspects of [Wildflower Works] remain[ed] constant from [season] to [season}.” See Williams, 685 F.2d at 874,; see also Opinion at 2. Under the reasoning of Williams and analogous decisions, these constants render Wildflower Works sufficiently fixed ® + Another example of art incorporating ever changing elements is Anish Kapoor's “Cloud Gate,” residing only steps away from Wildflower Works former location. Cloud Gate, by its design, incorporates its entire surroundings. Cloud Gate constantly changes every moment based upon natural forces far more out of control than those at play in Wildflower Works, including the actual people observing the work. Anish Kapoor did not create (nor does he control) the clouds, the sky, the skyscrapers setting the skyline at any given reflection nor the millions of people who come to ogle at their distorted reflections from Cloud Gate's various angles. Chicago certainly believes that Cloud Gate is subject to copyright, charging up to $1200.00 a day to take its picture. See Charles Storch, Millenium Park loosens its photo rules, Chicago Tribune, May 27, 2005 13 ‘Moreover, as in MAI, the fact that Wildflower Works was created with the understanding that it would change is irrelevant.» That certain perceivable aspects of it would ultimately disappear as flowers died did not prevent Wildflower Works from being perceived. Ironically, the Panel’s inclusion of a photograph of Wildflower Works, Opinion at 6, perhaps most effectively demonstrates that it was capable of “be[ing] perceived, reproduced, or otherwise communicated.” 17 U.S.C. § 101. Wildflower Works was, in short, fixed for purposes of the Copyright Act. Indeed, realizing the strain of its own holding, the Panel caveats that “[w]e are not suggesting that . . . artists who incorporate natural or living elements in their work can never claim copyright.” Opinion at 33. If the Panel's logic stands, why not? A flower in any other display would grow, die and be subject to the forces of nature. No author would have a greater degree of control over living material. Because Wildflower Works was intended as an abstract painting or sculpture using flowers in a pointillist expression, that does not mean it is entitled to less protection than the work of an author who uses flowers to represent less abstract subjects like Puppy. ‘The Panel's own subjective view on what constitutes art does not provide a 9 The Panel expressed concern that the work's live materials rendered any exact, expression inherently temporary, thus complicating the question of when the work was sufficiently permanent and final such that it could be infringed. Opinion at 33. Whether a work can be infringed does not depend on whether it is final. See Mass. Museum of Contemporary Art Foundation v. Biichel, 593 F.3d 38, 50-52 (1st Cir. 2010) (holding that even an unfinished work of contemporary art was fixed and protected under VARA). Indeed, an unfinished manuscript—even one that exists only temporarily in electronic form while the author revises it—can be infringed. See SimplexGrinnel LP v. Integrated Sys. & Power, Inc., 642 F. Supp. 24 206, 208-09 (S.D.N.Y. 2009) (holding that various revisions and versions of the same software program are copyrightable works). Its temporary or changing nature has no bearing on that issue. 14 basis to deny Mr. Kelley his federally protected rights, and its new “fixation” and “authorship” tests must be rejected. CONCLUSION For the foregoing reasons, Chapman Kelley respectfully requests that this Court grant a rehearing en bane. Dated: March 15, 2011 Respectfully submitted, Micah E. Marcus (ARDC No. 6257569) KIRKLAND & ELLIS LLP 300 North LaSalle Chicago, Hlinois 60654 (812) 862-2000 (telephone) (812) 862-2200 (facsimile) Diana Torres (application pending) Khaldoun Shobaki (application pending) Gunnar B, Gundersen (application pending) KIRKLAND & ELLIS LLP 833 South Hope Street Los Angeles, California 90071 (213) 680-8500 (telephone) (213) 680-8500 (facsimile) Counsel for Appellee Chapman Kelley 15 TIFICATE OF SERVICE Micah E. Marcus hereby certifies that on March 15, 2011, he did cause a true and correct copy of the foregoing Plaintiff-Appellant’s Petition For Rehearing En Banc 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 Micah E. Marcus (ARDC No. 6257549) KIRKLAND & ELLIS LLP 300 North LaSalle Chicago, Illinois 60654 (812) 862-2000 (telephone) (812) 862-2200 (facsimile) Diana Torres (application pending) Khaldoun Shobaki (application pending) Gunnar B. Gundersen (application pending) KIRKLAND & ELLIS LLP 333 South Hope Street Los Angoles, California 90071 (213) 680-8500 (telephone) (213) 680-8500 (facsimile) Counsel for Appellee Chapman Kelley

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