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. Nos.08-3'701& 08- 3712 .

IN THE '1\\\
\.\P
\Mniteb $tates (tourt of ppeals for tbe $ebentb (tirc
1' C \.

Chapman Kelley,
PlaintifAppellant, Cross-Appellee

Chicago Park District;


- Defendant-Appellee, Cross-Appellant.

ON APPEAL FROM THE UNTED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF ILLINOIS
NO. 04- CV- 07715
THE HONORALE DAVID H. COAR

BRIEF OF ' VOLUNTEER LAWYERS FOR THE ARTS AS


AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT'
PETITION FOR REHEARNG EN BANC

Sergio Mufioz Sariento (admission pending) George M. Sanders


Dena Bouchard (N admission pending) LAW OFFICES OF GEORGE M. SANERS
Anna Kadyshevich (N admiss-ion pending) 150 N. Michigan Ave. , Suite 2800
VOLUNTEER LA WYRS FOR TH ARTS Chicago , Ilinois 60601
1 EaSt 53rd Street, 6th Floor (312) 462- 0324
New York, New York 10022
(212) 319-2787

Hillel I. Paress (admssion pending)


David Leichtman
ROBINS , KALAN , MILLER & CIRESI L.L.P.
601 Lexigton Avenue, SUite 3400
New York, New York 10022
(212) 980- 7400
Counsel for Amicus Curiae Volunteer Lawyers for the Arts

March 21 2011
CIRCUIT RULE 26. DISCLOSURE STATEMENT

Appellate Court No:


08- 3701 & 08- 3712

Short Caption:
Chapman Kelley v. Chicago Park District

To enable the judges to determne whether recusal is necessary or appropriate , an attorney for a non-governental party or
amicus curiae , or a private attorney representing a governent party, must furnish a disclosure statement providing the
following information in compliance with Circuit Rule 26. 1 and Fed. R. App. P. 26.
The Court prefers that the disclosure statement be fied 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 fie 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 Nt A for any information that is not applicable if this form is used.

PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED


WHICH INFORMATION IS NEW OR REVISED.
AND. INDICATE

(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):
Volunteer Lawyers for the Arts

(2) The names of all law firms whose partners or associates have appeared for the part in the case (including proceedings
in the district court or before an administrative agency) or are expected to appear for the part in this court:
Volunteer Lawyers for the Arts

Robins, Kaplan, Miller & Ciresi L.L.P.

Law Offices of George M. Sanders

(3) If the party or amicus is a corporation:


i) Identify all its parent corporations , if any; and
NtA

ii) list any publicly held company that owns 10% or more of the party s or amicus , stock:
NtA

Attorney s Signatue: Date: March 22, 2011


Attorney s Printed Name:

Please indicate if you are Counsel a/Record for the above listed paries pursuant to Circuit Rule 3(d). Yes No

Address: Robins , Kaplan , Miller & Ciresi L.L.P.


601 Lexington Avenue, Suite 3400 , New York , New York 10022

212- 980- 7400 ax urn er: 212- 980- 7499


one um er:

al A ress: hiparness(grkmc.
com

rev. 01/08 AK
CIRCUIT RULE 26. DmCLOSURE 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.

The Court prefers that the disclosure statement be fied immediately following docketing; but , the disclosure statement must
be fied within 21 days of docketing or upon the fiing of a motion , response , petition , or answer in this court
, whichever occurs
first. Attorneys are required to fie 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 part' s main brief. Counsel is required to
complete the entire statement and to use Nt A for any information that is not applicable if this form is 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 name of every party that the attorney represents in the case (if the part is a corporation , you must provide the
corporate disclosure information required by Fed. R. App. P 26. 1 by completing item #3):
Volunteer Lawyers for the Arts

(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 part in this court:
Volunteer Lawyers for the Arts

Robins , Kaplan, Miler & Ciresi L.L.P.

Law Offices of George M. Sanders

(3) If the party or amicus is a corporation:


i) Identify all its parent corporations , if any; and
NtA

ii) list any publicly held company that owns 10% or more of the party s or amicus ' stock:
N/A

Attorney s Signature: Date: March 22 , 2011


Attorney s Printed Name: Sergio

Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d), Yes LX: No L.
Address: Volunteer Lawyers for the Arts
1 East 53rd Street, 6th Floor , New York , New York 10022

one urn er: (212) 319- 2787 Fax Number: 212.752.6575

ssarmiento vlany. org


.. all Ad ress:

rev. 01108 AK
CIRCUIT RULE 26. 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 ttorney representing a government party, must funish a disclosure statement providing the
following information in compliance with Circuit Rule 26. 1 and Fed. R. App. P. 26.

The Court prefers that the disclosure statement be filed immediately following docketing; but , the disclosure statement must
be fied within 21 days of docketing or upon the fiing of a motion , response , petition , or answer in this cour, whichever occurs
first. Attorneys are required to fie an amended statement to reflect any material changes in the required infonnation. 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 Nt A for any information that is not applicable if this form is used.

PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED


AND INDICATE WHICH INFORMA nON IS NEW OR REVISED.

(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):
Volunteer Lawyers for the Arts

(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 admnistrative agency) or are expected to appear for the party in this court:
Volunteer Lawyers for the Arts

Robins , Kaplan , Miler & Ciresi L.L.P.


Law Offces of George M. Sanders

(3) Ifthe part or amicus is ,a corporation:


i) Identify all its parent corporations , if any; and
NtA

ii) list any publicly held company that owns 10% or more of the party s or amicus ' stock:
N/A

Attorney s Signature: Date: March 22 , 2011


Attorney's Printed Name:

Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d), Yes No

Address: Law Offices of George M. Sanders


150 N. Michigan Ave. , Suite 2800 , Chicago, Illnois 60601

one um er:
312- 624- 7645 312-624- 7701
Fax Number:

- al Add ress:
george. sandersfl(gearthlink. net

rev. 01108
CIRCUIT RULE 26. DffCLOSURE 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.

The Court prefers that the disclosure statement be filed immediately following docketing; but , the disclosure statement must
be fied 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 fie 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 ifthis form is 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 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):
Volunteer Lawyers for the Arts

(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:
Robins , Kaplan , Miler & Ciresi L.L.P.

Law Offices of George M. Sanders

(3) If the party or amicus is a corporation:

i) Identify all its parent corporations , if any; and


N/A

ii) list any publicly held company that owns 10% or more of the party s or amicus ' stock:
N/A

Attorney s Signature: Date: March 21 2011

Attorney s Printed Name: Hillel I. Parness

Please indicate if you are Counsel of Record for the above listed paries pursuant to Circuit Rule 3(d). Yes rx. No C--

Address: Robins , Kaplan, Miler & Ciresi L.L.P.


601 Lexington Avenue, Suite 3400, New York , New York 10022

one urn er: 212- 980- 7400 ax urn er: 212- 980- 7499

hi parness (g rkmc. com


Mail Address:

rev. 01/08 AK
TABLE OF CONTENTS

Page

STATEMENT OF INTEREST OF AMICUS CURIAE .....................................,.........................

SUMMAY OF ARGUMENT..................................................................................................... 1
ARGUMENT................................................................................................................................. 2
1. THE PANEL' S ATTEMPT TO DISTINGUISH AMONG
PROTECTABLE AND UNPROTECTABLE " LIVING" ART IS
WITHOUT SUPPORT .................................................................................. ........ 2

II. WILDFLOWER WORKS IS FIXED FOR PURPOSES OF COPYRGHT ........

III. WILDFLOWER WORKS IS A WORK OF AUTHORSHIP ............................... 4

IV. THE PANEL' S OPINION WOULD HAVE SEVERE CONSEQUENCES


FOR VISUAL ARTISTS AND ARTS ORGANIZATIONS ................................ 5

CONCLUSION.............................................................................................................................. 7
........ .....

TABLE OF AUTHORITIES

Page

Cases

Baltimore Orioles, Inc. v. Major League Baseball Players Ass


805 F. 2d 663 (7th Cir. 1986) .............................................................................................. 7

Bleistein v. Donaldson Lithographing Co.


188 V. S. 239 (1903)............... ........................ ....... ......................................................... 2

MAl System Corps. v. Peak Computer, Inc.

991 F. 2d 511 (9th Cir. 1993) .............................................................................................. 4

Statutes
17 V. S. c. 9 1 06A............................................................................................................................ 2

Aricle Section 8 of the V. S. Constitution......

Other Authorities

1 Melvile B. Nimmer and David Nimmer


Nimmer on Copyright 9 2. 03(B) (Matthew Bender , Rev. Ed. 2010) .................................

Bruce D. Kurtz
Contemporary Ar 1965- 1990 (1992) ................................................................................. 5

Campbell Robertson
Want to Use My Suit? Then Throw Me Something, Y. Times , Mar. 23 , 2010................ 6

Central Garden (Robert Irwin , 1997)......................................................................................... 6 , 7

Gnaw (Janine Antoni , 1992)........................................................................................................... 6

Puppy (Jeff Koons , 1992).................................. """'"'''''''''''''''''''''''''''''''''''''''''''''''''''''''' .''''''''''' 2

All Things Considered: Mardi Gras Indians Seek to Copyright Costumes


(National Public Radio broadcast , Feb. 8 2011) .......................... ......................... 6

Rosalind Krauss
Sculpture in the Expanded Field October , Spring 1979.................................................... 5

Spiral Jetty (Robert Smithson , 1970).............................................................................................. 6

The Library for the Birds, of Antwerp (Mark Dion , 1993) ............................................................. 6

- 11 -
TABLE OF AUTHORITIES
(continued)
Page

S. Copyright Office
Circular Copyright Registrationfor Online Works
66:

May 2009 , http://ww. copyright.gov/circs/circ66. pdf....................................................... 4

White Cabinet and White Table (Marcel Broodthaers , 1965).........................................................

-11-
c, -
STATEMENT OF INTEREST OF AMICUS CURIAE

Established in 1969 , Volunteer Lawyers for the Arts ("VLA") is a pioneer in arts-related

legal aid and educational programing concerng the legal issues that impact arists and arts

organizations. Individual artists and arts organizations deserve access to dedicated legal

representation and advocacy to ensure that their voices are heard and that their interests are

protected. To achieve these goals , VLA provides low- income artists and nonprofit ars and

cultural organizations with pro bono legal representation , legal counseling, and educational

programs. Since its establishment, VLA has played a significant role in the life of the arts

community, serving more than 300 000 low- income arists and nonprofit organizations across the

United States. The Panel' s opinion on subjects of authorship and fixation is wrong. Ifits

decision is allowed to stand , it would severely constrict the abilty of artists to enforce their

rights , and create uncertainty for what are otherwise clear guidelines on those issues in other

Circuits. VLA thus respectfully asks that the Circuit accept and consider VLA' amicus brief

submitted in support of Plaintiff- Appell ant' s Petition for Rehearing En Banc.

SUMMARY OF ARGUMENT

The three-judge Panel of this Cour issued a ruling that Chapman Kelley s Wildflower

Works did not warant copyright protection because it was neither " authored" nor " fixed" under

the Panel' s interpretation of the Copyright Act. VLA supports rehearing en banc because

Wildflower Works - like many other works on the cutting edge of creativity - is plainly authored

and sufficiently fixed to warrant protection under the Copyright Act. VLA urges the Circuit to

reconsider the Panel' s deCision , both on the facts of this case , and because of the impact this

decision would have on the larger ars community.


ARGUMENT

For purposes of this amicus brief, VLA does not address the ultimate question ofliabilty

under The Visual Arists Rights Act , 17 U.S. c. 9 106A , but rather focuses on section II. A.4 of

the Panel' s opinion , in which the Panel asked " Is Wildflower Works copyrightable?" Although

Defendant- Appellee had not even raised the issue , the Panel answered in the negative , and made

these statements: " (A) living garden lacks the kind of authorship and stable fixation normally

required to support copyright." " living garden like Wildflower Works is neither ' authored'

nor ' fixed' in the senses required for copyright." " Although the planting material is tangible and

can be perceived for more than a transitory duration , it is not stable enough or permanent enough

to be called ' fixed. '" Op. at 29- 33 (emphases added). Faced with the example of Jeff Koons

Puppy" sculpture, the Panel attempted to distinguish it as follows: " In ' Puppy ' the artist

assembled a huge metal frame in the shape of a puppy and covered it with thousands of
blooming

flowers sustained by an irrigation system


within the frame. This may be sufficient fixation for

copyright (we ventue no opinion on the question), but Wildflower Works is quite different. It is

quintessentially a garden; Puppy ' is not." (Op. at 34- 35) (emphasis added).

THE PANEL'S ATTEMPT TO DISTINGUISH AMONG PROTECTABLE


AND UNPROTECTABLE "LIVING" ART IS WITHOUT SUPPORT

As the excerpts above show , the Panel appears to have substituted itself as an ar critic

espousing the view that Wildflower Works was a " garden " as somehow distinct from any kind

of two- or three- dimensional arork , such as Puppy. The courts have long instructed that their

role is not to decide what is or is not art. See Bleistein v. Donaldson Lithographing Co. 188

S. 239 , 251 (1903) (" it would be a dangerous undertaking for persons trained only to the law

to constitute themselves final judges of the worth of pictorial illustrations. " However the

Panel' s opinion seems infected by a belief that arranging living plants within a metal framework
in shapes upon the ground Call10t be " art " while arranging living plants on a three- dimensional

frame in the shape of a puppy may be. Copyright protection afforded on the basis of aristic

conventionality and aesthetic categorization is contrary to the law, creates uncertainty, and limits

the progress of aristic and cultural endeavors. The Panel' s opinion creates a two- tiered

copyright regime , where only works using traditional processes and materials wil be aforded

protection. Were the Panel' s decision to stand, artists would have to speculate as to how courts

might classify their ar to predict whether they would ultimately be protected under copyright.

II. WILDFLOWER WORKS IS FIXED FOR PURPOSES OF COPYRGHT


The Panel' s statements regarding fixation fall apar under scrutiny. The Panel cited

Professor Nimmer for the unobjectionable proposition that fixation requires that the work be able

to be perceived , reproduced , or otherwise communicated for a period or more than transitory

duration. Gp. at 30 , citing, 1 Melvile B. Nimmer and David Nimmer , Nimmer on Copyright

03(B) (Matthew Bender, Rev. Ed. 2010). Kelley s Wildflower Works was able to be

perceived , reproduced or otherwise communicated" for a period of twenty years. In the Panel'

view, however , because the individual elements of Wildflower Works would change over time

the work as a whole could never be " fixed" as a matter of copyright law. In reality, however , no

piece of ar is permanent. Artwork (whether displayed indoors or outdoors) wil always change

react and ultimately succumb to the elements , and the natural ingredients that comprise most

traditional" ar (whether alive or dead) are particularly susceptible , but the Panel' s decision

suggests that such works lack fixation. Yet, if an artist chooses to subject her ar to the forces of

nature - such as laying her painted canvas out to change under the sun - she would not lose

authorship because nature helped shape her painting.

It is worth noting that the U. S. Copyright Office has taken a decidedly opposite view

when it comes to the fixation requirement for copyrighted Internet websites: "Many works
transmitted online , such as websites , are revised or updated frequently, " and therefore

copyrightable revisions to online works that are published on separate days must each be

registered individually. ) While this statement suggests that the registration of a paricular

website at a particular moment covers only that iteration of the website, it demonstrates that

works in a constant state 9f change - even if change is known and expected at the moment of

registration - are stil undoubtedly fixed for puroses of copyright. Furthermore , as noted by

Plaintiff- Appellant , other courts have held that fleeting and ephemeral digital works are fixed.

See , e. g., MAl System Corps. v. Peak Computer, Inc. 991 F. 2d 511 518 (9th Cir. 1993). If

software stored in RAM -: which is automatically wiped clean when a computer is turned off - is

fixed for puroses of copyright infringement , why should an arrangement of living plants , the

visual experience of which wil remain reasonably unchanged for days or weeks , be treated

differently?

III. WILDFLOWER WORKS IS A WORK OF AUTHORSHIP

The Panel declined to find authorship in Wildflower Works because it is uses natural

materials , so that " the colors , shapes , textures , and scents of the plants - originates in nature , not

in the mind of the gardener. " Op. at 32. However this surely canot be the rule , for there is no

meaningful difference between Kelley s selection of plants , and another arist' s decision to paint

with a particular pigment , carve a particular stone or whittle a paricular piece of wood.

Likewise , an arist who uses a feather in her arwork owes the colors , shapes and textures of that

feather to the forces of nature , but how she chooses to use it is undeniably of her own authorship.

The Panel' s opinion is built on the mistaken premise that Wildflower Works originates in

nature , rather than from the creative mind of man , as opposed to the Puppy living sculpture. The

1 U.S. Copyright Office Circular 66: Copyright Registration/or Online Works May 2009
http://ww . copyright. gov / c ircs/ circ66. pdf.
Panel is wrong. Although it includes the use of materials originating in nature , Wildflower

Works is a unique sculpture in the form of a garden created by Kelley that did not previously

exist in nature. The art world has long recognized sculpture dealing with natual materials and

landscapes. " (S)culptue... was what was on or in front of a building that was not the building,
or what was in the landscape that was not the landscape. Rosalind Krauss Sculpture in the

Expanded Field October , Spring 1979 , at 30- 44 (emphasis added). Kelley, and Wildflower

Works , are products of the 1960s Earhworks movement , which questions the " relationship of

sculpture to the horizontal plane upon which it traditionally rested , furthering a rich dialogue

about sculpture and its base or support , which runs throughout modem sculpture from Rodin to

the present." Bruce D. Kurtz , Contemporar Art 1965- 1990 , 81 (1992). No reasonable observer

would conclude that Wildflower Works sprang up from nature in the middle of urban Chicago.

Indeed , it is recognized that the late 20 Centur sculptors knew that in order for their

ideas about sculpture in unfamiliar places to be accepted, their sculptures would have to be made

familiar (Krauss supra at 30) and they did so by referencing historical forms - in this case the

form of a garden. Thus , if the Panel looked at Wildflower Works (or a photograph of same) and

saw a " garden " that was likely Kelley s intention - to form an association to a recognizable

form , but then challenge conventional notions of art and public spaces. The Panel improperly

decided to end its analysis there , refusing to recognize Kelley s authorship, as well as the

legitimacy of the medium in which Kelley works , when it should have left those decisions to

others.

IV. THE PANEL'S OPINION WOULD HAVE SEVERE CONSEQUENCES FOR


VISUAL ARTISTS AND ARTS ORGANIZATIONS

Artists and their advisors , like VLA , rely on the law to recognize and protect their

creative efforts without judging the monetary or creative worth of the endeavor. The Panel'
opinion , if allowed to stand , would seriously undermine that comfort and certainty, and

effectively strip away the protection of works in existence , and deter futue artists from

experimenting with new materials and methods. By way of example , all of the following works

use natural materials to convey their aristic messages: White Cabinet and White Table (Marcel

Broodthaers , 1965) is comprised of painted eggshells piled upon a table. Central Garden

(Robert Irwin , 1997) is a large outdoor work at The Getty Museum in Los Angeles , which

includes a ravine , a tree- lined walkway, a floating azalea maze and over 500 types of plants.

Spiral Jetty (Robert Smithson , 1970) is a spiral arrangement of black basalt rocks and earth on

the Great Salt Lake in Utah. The Library for the Birds of Antwerp
(Mark Dion , 1993) has a tree

at its center, upon which are aranged (among other things) birds , a rat , a snake and birds nests.

Gnaw (J anine Antoni , 1992) is comprised of two large blocks - 600 pounds of chocolate and 600

pounds of lard - each of which is gnawed in a unique pattern by the artist. Photographs of the

referenced works are available at ww.vlany. org/vla bancyetition images. php.

If the Panel' s opinion is allowed to stand , then the protection of the above works , and

indeed of all works that use natural materials in new ways , are called into question. If arists lose

copyright protection , they lose the right to stop other paries from commercializing their works.

Anyone would be free to copy and commercialize such works without any benefit to the arist

contrary to Aricle I , Section 8 of the U. S. Constitution and also the Copyright Act. 3 Wildflower

Works , for example , could be recreated by another city without payment or attribution to Kelley,

while the party doing the copying could enjoy uneared reputational and financial gain. When

one factors in the potential revenues derived from the sale of derivative items , such as posters , t-

2 VLA can also provide photographs of these works to the Court upon request.
3 See All Things
Considered: Mardi Gras Indians Seek to Copyright Costumes
(National Public Radio broadcast , Feb. 8 2011) and Campbell Robertson Want to Use My Suit? Then
Throw Me Something, Y. Times , Mar. 23 , 2010 , at A13 (efforts to obtain compensation through
copyright for use of traditional garb in images).
shirts and other souvenirs , the significance canot be ignored. Indeed , based on the Panel'

statement that it would protect Wildflower Works ' blueprints (Op. at 33), one could photograph

Wildflower Works , fie a copyright registration for and commercialize the photograph , without

any compensation to Kelley.

As the values of society change and focus more on urban space and the environment , ar

too follows this trend. The arist's media changes , as do the messages underlying the work.

VLA has noted this trend through the experience of its clients. The Supreme Cour has long held

that " the purpose of federal copyright protection is to benefit the public by encouraging works in

which it is interested. To induce individuals to underte the personal sacrifices necessary to

create such works , federal copyright law extends to the authors of such works a limited

monopoly to reap the rewards oftheir endeavors. Baltimore Orioles, Inc. v. Major League

Baseball Players Ass 805 F. 2d 663 678 (7th Cir. 1986) (citing Supreme Court opinions). The

Panel' s opinion would lead to a reversal of these incentives - artists would shy away from

experimentation and boundary-pushing, and their counselors , like VLA , would have to advise

them accordingly. The economic incentives created by copyright law should not be withheld on

the basis of an artist's choice of materials or subject matter , but rather the protections should be

guaranteed in equal measure to all those who promote the progress of the useful ars.

CONCLUSION

The Court should grant Plaintiff- Appellant' s motion for rehearing en banco

Sergio ' 0'nto (admission pending)


Dena Bouchard (NY admission pending)
Ana Kadyshevich (NY admission pending)
VOLUNTEER LA WYERS FOR THE ARTS
4 Robert Irin licensed The Gett Museum to reproduce and sell images of Central Gardens.
1 East 53rd Street , 6th Floor
New York , New York 10022
(212) 319- 2787
ssarmiento vlany. org
dbouchard v1any. org
akadyshevich vlany. org

Hilel 1. Paress (admission pending)


David Leichtman
ROBINS , KAPLAN , MILLER & CIRESI L.L.P.
601 Lexington Avenue , Suite 3400
New York , New York 10022
(212) 980- 7400
hiparness rkmc. com
dleichtman rkmc. com

George M. Sanders
LAW OFFICES OF GEORGE M. SANDERS
150 N. Michigan Ave. , Suite 2800
Chicago , Ilinois 60601
(312) 462- 0324
george. sandersfl earhlink. net

Attorneys for Amicus Curiae


Volunteer Lawyers for the Arts

Dated: March 21 , 2011


CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing brief complies with the page- length limitation of Fed.

R. App. P. 29( d) and 3 5(b )(2), because this brief is no more than one-half the maximum length

authorized for Plaintiff- Appellant's principal brief , excluding the pars of the brief excluded by

Fed. R. App. P. 32(a)(7)(B)(iii).

I fuher certify that this brief complies with the type- face requirements of Fed. R. App.
P. 32(a)(5) and Circuit Rule 32(b), and the type-style requirements of Fed. R. App. P. 32(a)(6),

because this brief has been prepared in proportionately spaced typeface using Microsoft Word in

12-point Times New Roman font (with footnotes in II-point Times New Roman font).

uted fMarch, 2011.

Wil e! I. P ess
CERTIFICATE OF SERVICE

Hilel 1. Parness , hereby certify that I caused to be served true and correct copies of the

foregoing Brief of Amicus Curiae on the following by Federal Express , including a digital copy

in accordance with Circuit Rule 31 (e):

Micah E. Marcus
KIRKLAND & ELLIS LLP
300 N. LaSalle
Chicago , Ilinois 60654

Diana Torres
Khaldoun Shobaki
Gunar B. Gundersen
KIRKLAND & ELLIS LLP
333 South Hope Street
Los Angeles , California 90071
Counsel for P laintifAppellant/Cross-Appellee Chapman Kelley

Anette M. McGary
MCGARRY & MCGARRY , LLC
120 N. LaSalle , #1100
Chicago , Ilinois 60602
David Donnersberger
Nelson A. Brown , Jr.
CHICAGO PARK DISTRICT
Law Deparment
541 N. Fairbans Cour , 3W
Chicago , Ilinois 60611
Counsel for Defendant-Appellee/Cross-Appellant Chicago Park District

fMarch 2011.

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