Prof. Randal C. Picker, The University of Chicago Law School
April 27, 2011

Law professors rarely have labs the way that other scientists do.  For us, our classrooms are the places that we go to run our experiments to see what happens when a couple of unusual legal concoctions are mixed together.  It is a rare case that makes you want to rush instantly to the classroom, but Kelley v. Chicago Park District, decided earlier this year by the U.S. Court of Appeals for the Seventh Circuit, is exactly that sort of case.

The setting is Chicago’s beautiful Grant Park.  In 1984, Chapman Kelley, a well-known artist, was given permission to install a display of wildflowers in the park.  (You can visit Kelley’s website to get some sense of the nature and scale of the project.)  But over time, the wildflower installation changed, and by 2004, the Chicago Park District undertook to modify it and cut back substantially on the size of the garden.

Kelley was none too pleased and expressed his displeasure by asking for $25 million in damages under the Visual Artists Rights Act of 1990 (VARA).  VARA is explicitly a moral rights statute and we don’t have too many of those in the United States.  Most of copyright law focuses on questions of copying and the like, but VARA instead focused on rights of attribution and, relevant here, on what the statute calls integrity.  Kelley contended that the park district violated his integrity rights under VARA when it cut back on the garden.

We need to navigate a few definitions to understand this claim.  VARA protects a “work of visual art.”  Paintings, drawings, prints, and sculpture are included while “any work not subject to copyright protection” is excluded.  For VARA to apply, the wildflower garden needs to qualify perhaps most naturally as a sculpture and needs not to be excluded as an unprotectable work.

This is where matters get interesting quickly.  There is no doubt that had Kelley grabbed a blank canvas and water colors and painted an imagined wildflower landscape, he would have created a copyrighted work, one that we presumably would call a painting and that could qualify for protection under VARA.  If instead Kelley’s medium of choice was marble and he embodied his imagined wildflowers in a sculpture, he would similarly have a copyrighted work subject to being protected under VARA.

But Kelley’s medium was wildflowers.  Somewhat surprisingly, the district court characterized Wildflower Works as a painting and a sculpture and, on appeal, the park district, in what the Seventh Circuit labeled “an astonishing omission,” did not challenge that characterization.  “Painting” and “sculpture” are statutory primitives meaning that they aren’t defined in the statute and courts are left to the task of divining their meanings.  But we have another mouthful – “pictorial, graphic, and sculptural works” (PGS in the trade) – that is defined and the heart of that definition covers “two-dimensional and three-dimensional works of fine, graphic, and applied art.”

That is sufficiently open-ended that one could imagine that a wildflower garden might qualify.  But VARA doesn’t define a “work of visual art” through the PGS definition but instead through the undefined terms “painting” and “sculpture.”  And for the Seventh Circuit that was a trellis too far: “If a living garden like Wildflower Works really counts as both a painting and a sculpture, then these terms do no limiting work at all.”  That might have resolved the case had the park district argued the point, but they didn’t so it didn’t.

Instead, the Seventh Circuit considered the broader question of copyrightability for Wildflower Works.  The district court had found Wildflower Works insufficiently original based on the view that Kelley was not “the first person to ever conceive of and express an arrangement of growing wildflowers in ellipse-shaped enclosed area[s].”  That misunderstands the nature of originality in copyright, as the Seventh Circuit quickly concluded.  Nothing suggested that Kelley had copied his wildflower arrangement from another work and that is all that copyright demands for originality.

This is where the opinion gets really interesting.  Remember what copyright requires: an original work of authorship fixed in a tangible medium of expression.  According to the Seventh Circuit, Kelley didn’t author and didn’t fix.  Nature “authored” and Wildflower Works was constantly changing from season to season, so how could it be fixed?  We should revisit exactly what Kelley did in creating Wildflower Works originally.  Late in the summer of 1984, Kelley designed the flowerbed for Grant Park.  He and his team planted between 200,000 and 300,000 wildflower seedlings.  The following year, the flowers bloomed.  Year by year, Wildflower Works evolved as nature did her work, but Kelley and his gardeners had a hand in that as well, cutting back some growths and planting others.  Now we have the question: Did Kelley create an original work of authorship fixed in a tangible medium of expression?  This is the question that you want to take to the classroom.

For oil on canvas, this would be easy, but the Seventh Circuit concluded that Wildflower Works was neither authored nor fixed: “simply put, gardens are planted and cultivated, not authored.”  Natural forces determine the outcome, not the gardener, and the garden itself was constantly changing, the opposite of being fixed.  And even the idea of change needs to be understood properly.  The court distinguished a Calder mobile, always in motion, from the wildflower garden.  The constitutive elements of the mobile are unchanging, while elements of the garden did change season by season.

To see the pressure points in the opinion, focus on the role of randomization and deterioration and consider a couple of quick hypos.  Start with paintball Jackson Pollock.  I set up a paintball gun pointed at a square canvas divided into a ten-by-ten grid.  I have six paintball colors.  I role a die to determine a color and I spin a 1-to-100 spinner to select a grid on the square.  I then load the paintball gun with the appropriate color, aim at the selected square and pull the trigger.  I do that 25 times and produce “my” homage to Jackson Pollock “Paintball by the Numbers.”  We don’t have a fixation problem here.  Have I authored because I pulled the trigger or does the presence of randomization somehow interfere with ascribing authorial status?  In the paintball hypo, we have randomization first followed by the artist’s hand at work – me pulling the trigger – while in Wildflower Works, it is artist’s hand – planting the seedlings – followed by nature.  Does the sequence matter?

Switch to deterioration.  Michelangelo carves David not in marble but in ice.  Unexpectedly, Florence has advanced cooling facilities available and so David is put on display and preserved in its original form for centuries.  One day the cooling systems shut down and David starts to melt.  Cooling is restored but there is no question that David has changed.  Is the new David still authored by Michelangelo or does the superposition of the natural processes of melting somehow alter that status?

Who said that all of the fun copyright cases are in the Second Circuit or the Ninth Circuit?