(NOTE TO READERS: This article was originally published in the Art Monthly

November 2009 p. 37. Mr. Henry Lydiate has kindly granted permission to repost the
article here.)

Moral Rights

Chapman Kelley v Chicago Park District

by Henry Lydiate

The 20th century saw the development and introduction of intellectual property
laws that qualified personal property rights of owners of works by creative
artists: statutory moral rights. These are given automatically to principal
directors of films, music composers, writers, designers and artists. Most
countries have enacted moral rights laws, giving authors two basic rights to claim
(or deny) authorship of their work (so-called paternity right); and to object to
any mutilation or deformation or other modification of, or other derogatory action
in relation to, their work which would be prejudicial to the author's honour or
reputation (so-called integrity right). US artist Chapman Kelley has recently
claimed violation of his statutory moral rights before the US courts because of
the destruction of one of his public artworks in Chicago's lakeside Grant Park:
Chicago Wildflower Works, 1984.

Kelley describes the work as 'a sculpture of native flowers, gravel, and
steel...created with the approval and agreement of the Chicago Park District'. It
was not a commissioned piece; Kelley financed the installation of the sculpture
and, under his direction, it was tended by volunteers for over two decades.
Comprising 66,000sqft of 45 different kinds of yellow and purple blooming flowers,
the work was mutilated by the Chicago park authority in 2004 when they replaced
half of Kelley's wildflowers with trees.

At the heart of the case lies the question of whether Kelley's work was an
artwork entitled to protection under US moral rights legislation or whether it was
merely landscaped public parkland - and therefore not entitled to such protection.
The initial trial court in 2007-08 expressed sympathy for, and understanding of,
the development of radically new contemporary art practices and forms during the
20th century with the judge commenting: 'There is a tension between the law and
the evolution of ideas in modern or avant-garde art; the former requires
legislatures to [classify] artistic creations, whereas the latter is occupied with
expanding the definition of what we accept to be art. While Andy Warhol's
suggestion that 'art is whatever you can get away with' is too nihilistic for the
law to accommodate, neither should [moral rights laws] be read so narrowly as to
protect only the most revered work of the Old Masters. In other words, the 'plain
and ordinary meaning of words describing modern art are still slippery.' And so
the court ruled that Kelley's work was in law a sculpture, or a three-dimensional
artwork; and also a painting which 'corral[ed] the variegation of wildflowers in
bloom into pleasing oval swatches'. Kelley was rightly pleased with this
enlightened preliminary decision, commenting: 'This ruling redefines legally what
can be fine art, what it can be made of and that artists themselves make these
decisions'.

However, not all artworks are entitled to moral rights protection; only those
that pass the legal test of 'originality', and courts decide in each case whether
a work passes the test. In Kelley's case the court expressed difficulty in
understanding what was original about his work because he was not 'the first
person to ever conceive of and express an arrangement of growing wildflowers in
[an] ellipse-shaped enclosed area'. In the UK a work will pass the test if it was
made through the 'independent skill and labour' of the artist, which basically
means that the artwork was not appropriated from another artist's work, but it
does not mean that the idea behind the expressed work must be novel (which appears
to be the approach adopted by the judge in Kelley's case - an important point
picked up by Kelley's lawyers in his recent appeal case, discussed below).

The judge also ruled that Kelley's work was site-specific and, as such, would
not be entitled to moral rights protection (even if it had passed the legal
'originality test') because US case law decided in 2006 that site-specific
artworks - whose integrity would be damaged by their removal from a specific site
- are outside the scope of moral rights protection. Kelley did achieve a minor,
though pyrrhic, victory when the court ruled that the park authority should have
given Kelley at least 90 days notice of its intention to remove half of his work -
but awarded him merely nominal damages of $1. Kelley's lawsuit ended in 2008. He
appealed against the court's ruling against him, particularly of the failure of
his work to satisfy the legal 'originality' test. The US Court of Appeals
considered the parties' arguments during the summer of 2009.

The first key element of Kelley's appeal relates to site-specificity. Kelley

does not claim that his work is site-specific, and in any event his lawyers argue
that US law does not say that all site-specific artworks are automatically
excluded from moral rights protection (as the initial trial judge decided); and
that it is for a court to decide in any individual case whether moral rights apply
to a work. US case law sought to exclude site-specific works from moral rights
protection because 'the worst case scenario of the concern voiced by [US courts is
that such protection] could dramatically affect real property interests and laws'.
This means that property rights of owners of real estate (land or buildings) on
which a site-specific work is affixed/constructed, in the US, should not be
legally constrained by moral rights laws from removing or destroying such artwork
(ie real estate rights should always be superior to artists' moral rights). This
US approach to moral rights for site-specific works does not apply in most of the
rest of the world, including the UK.

The second key element of the appeal builds upon the first, and argues that
this is not a case where site-specific art has been completely removed and
relocated or destroyed, but that 'the Chicago Park District chose to mutilate the
Wildflower 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'. All in all, Kelley's lawyers argued that the appeal
court should decide an important question that has 'widespread ramifications for
the art world', namely: 'whether [US statutory moral rights laws were] intended
to protect all forms of visual art, including site-specific art.'

As for the initial trial judge's ruling that Kelley's work fails the legal
'originality test', Kelley's lawyers argue that the court 'erred in concluding
that there was nothing "inherently original about Wildflower Works".' They cited
and referred to earlier decisions of the US Supreme Court that had established an
'extremely low' threshold of originality and had ruled that 'the vast majority of
works make the grade quite easily, as they possess some creative spark...or only a
minimal degree of creativity...and need not be particularly novel or unusual'.
This is effectively the same as, or very similar to, the test under UK law, where
it is often called the 'sweat of the brow' criterion. Kelley's lawyers argue that
his 'level of design, planning, control and execution in Wildflower Works clearly
illustrates a significant amount of intellectual labor and artistic expression
that extends far beyond the low level of creativity required by the Supreme
Court'.

The award of $1 compensation by the trial judge is also being appealed on the
basis that 55% of the work was destroyed and, as it was valued by an independent
art market expert at $1.5M, Kelley therefore asks $825,000.

The US appeal court's decision on these important art law issues will be
keenly awaited by artists and owners of works.

HENRY LYDIATE is an an art lawyer and adviser to www.artquest.org.uk All rights

reserved.