Kelley v. Chicago Park Dist.
| Citation | 635 F.3d 290 |
| Decision Date | 19 April 2011 |
| Docket Number | Nos. 08–3701,08–3712.,s. 08–3701 |
| Parties | Chapman KELLEY, Plaintiff–Appellant/Cross–Appellee,v.CHICAGO PARK DISTRICT, Defendant–Appellee/Cross–Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
OPINION TEXT STARTS HERE
Alexander L. Karan, Micah E. Marcus (argued), Attorneys, Kirkland & Ellis LLP, Chicago, IL, for Plaintiff–Appellant.Annette M. McGarry (argued), Attorney, McGarry & McGarry, Jeanne G. Toft, Attorney, Chicago Park District Law Department, Chicago, IL, for Defendant–Appellee.Before MANION, SYKES, and TINDER, Circuit Judges.SYKES, Circuit Judge.
Chapman Kelley is a nationally recognized artist known for his representational paintings of landscapes and flowers—in particular, romantic floral and woodland interpretations set within ellipses. In 1984 he received permission from the Chicago Park District to install an ambitious wildflower display at the north end of Grant Park, a prominent public space in the heart of downtown Chicago. “Wildflower Works” was thereafter planted: two enormous elliptical flower beds, each nearly as big as a football field, featuring a variety of native wildflowers and edged with borders of gravel and steel.
Promoted as “living art,” Wildflower Works received critical and popular acclaim, and for a while Kelley and a group of volunteers tended the vast garden, pruning and replanting as needed. But by 2004 Wildflower Works had deteriorated, and the City's goals for Grant Park had changed. So the Park District dramatically modified the garden, substantially reducing its size, reconfiguring the oval flower beds into rectangles, and changing some of the planting material.
Kelley sued the Park District for violating his “right of integrity” under the Visual Artists Rights Act of 1990 (“VARA”), 17 U.S.C. § 106A, and also for breach of contract. The contract claim is insubstantial; the main event here is the VARA claim, which is novel and tests the boundaries of copyright law. Congress enacted this statute to comply with the nation's obligations under the Berne Convention for the Protection of Literary and Artistic Works. VARA amended the Copyright Act, importing a limited version of the civil-law concept of the “moral rights of the artist” into our intellectual-property law. In brief, for certain types of visual art—paintings, drawings, prints, sculptures, and exhibition photographs—VARA confers upon the artist certain rights of attribution and integrity. The latter include the right of the artist to prevent, during his lifetime, any distortion or modification of his work that would be “prejudicial to his ... honor or reputation,” and to recover for any such intentional distortion or modification undertaken without his consent. See 17 U.S.C. § 106A(a)(3)(A).
The district court held a bench trial and entered a split judgment. The court rejected Kelley's moral-rights claim for two reasons. First, the judge held that although Wildflower Works could be classified as both a painting and a sculpture and therefore a work of visual art under VARA, it lacked sufficient originality to be eligible for copyright, a foundational requirement in the statute. Second, following the First Circuit's decision in Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128 (1st Cir.2006), the court concluded that site-specific art like Wildflower Works is categorically excluded from protection under VARA. The court then held for Kelley on the contract claim, but found his evidence of damages uncertain and entered a nominal award of $1. Both sides appealed.
We affirm in part and reverse in part. There is reason to doubt several of the district court's conclusions: that Wildflower Works is a painting or sculpture; that it flunks the test for originality; and that all site-specific art is excluded from VARA. But the court was right to reject this claim; for reasons relating to copyright's requirements of expressive authorship and fixation, a living garden like Wildflower Works is not copyrightable. The district court's treatment of the contract claim is another matter; the Park District is entitled to judgment on that claim as well.
Kelley is a painter noted for his use of bold, elliptical outlines to surround scenes of landscapes and flowers. In the late–1970s and 1980s, he moved from the canvas to the soil and created a series of large outdoor wildflower displays that resembled his paintings. He planted the first in 1976 alongside a runway at the Dallas–Fort Worth International Airport and the second in 1982 outside the Dallas Museum of Natural History. The wildflower exhibit at the museum was temporary; the one at the airport just “gradually petered out.”
In 1983 Kelley accepted an invitation from Chicago-based oil executive John Swearingen and his wife, Bonnie—collectors of Kelley's paintings—to come to Chicago to explore the possibility of creating a large outdoor wildflower display in the area. He scouted sites by land and by air and eventually settled on Grant Park, the city's showcase public space running along Lake Michigan in the center of downtown Chicago. This location suited Kelley's artistic, environmental, and educational mission; it also provided the best opportunity to reach a large audience. Kelley met with the Park District superintendent to present his proposal, and on June 19, 1984, the Park District Board of Commissioners granted him a permit to install a “permanent Wild Flower Floral Display” on a grassy area on top of the underground Monroe Street parking garage in Daley Bicentennial Plaza in Grant Park. Under the terms of the permit, Kelley was to install and maintain the exhibit at his own expense. The Park District reserved the right to terminate the installation by giving Kelley “a 90 day notice to remove the planting.”
Kelley named the project “Chicago Wildflower Works I.” The Park District issued a press release announcing that “a new form of ‘living’ art” was coming to Grant Park—“giant ovals of multicolored wildflowers” created by Kelley, a painter and “pioneer in the use of natural materials” who “attracted national prominence for his efforts to incorporate the landscape in artistic creation.” The announcement explained that “[o]nce the ovals mature, the results will be two breathtaking natural canvases of Kelley-designed color patterns.”
In the late summer of 1984, Kelley began installing the two large-scale elliptical flower beds at the Grant Park site; they spanned 1.5 acres of parkland and were set within gravel and steel borders. A gravel walkway bisected one of the ovals, and each flower bed also accommodated several large, preexisting air vents that were flush with the planting surface, providing ventilation to the parking garage below. For planting material Kelley selected between 48 and 60 species of self-sustaining wildflowers native to the region. The species were selected for various aesthetic, environmental, and cultural reasons, but also to increase the likelihood that the garden could withstand Chicago's harsh winters and survive with minimal maintenance. Kelley 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. He purchased the initial planting material—between 200,000 and 300,000 wildflower plugs—at a cost of between $80,000 and $152,000. In September of 1984, a battery of volunteers planted the seedlings under Kelley's direction.
When the wildflowers bloomed the following year, Wildflower Works was greeted with widespread acclaim. Chicago's mayor, the Illinois Senate, and the Illinois Chapter of the American Society of Landscape Artists issued commendations. People flocked to see the lovely display—marketed by the Park District as “living landscape art”—and admiring articles appeared in national newspapers. Wildflower Works was a hit. Here's a picture:
Image 1 (2.66" X 3.85") Available for Offline Print For the next several years, Kelley's permit was renewed and he and his volunteers tended the impressive garden. They pruned and weeded and regularly planted new seeds, both to experiment with the garden's composition and to fill in where initial specimen had not flourished. Of course, the forces of nature—the varying bloom periods of the plants; their spread habits, compatibility, and life cycles; and the weather—produced constant change. Some wildflowers naturally did better than others. Some spread aggressively and encroached on neighboring plants. Some withered and died. Unwanted plants sprung up from seeds brought in by birds and the wind. Insects, rabbits, and weeds settled in, eventually taking a toll. Four years after Wildflower Works was planted, the Park District decided to discontinue the exhibit. On June 3, 1988, the District gave Kelley a 90–day notice of termination.
Kelley responded by suing the Park District in federal court, claiming the termination of his permit violated the First Amendment. The parties quickly settled; in exchange for dismissal of the suit, the Park District agreed to extend Kelley's permit for another year. On September 14, 1988, the Park District issued a “Temporary Permit” to Kelley and Chicago Wildflower Works, Inc., a nonprofit organization formed by his volunteers. This permit authorized them “to operate and maintain a two ellipse Wildflowers Garden Display ... at Daley Bicentennial Plaza in Grant Park” until September 1, 1989. The permit stipulated that Kelley “will have responsibility and control over matters relating to the aesthetic design and content of Wildflower Works I,” and Wildflower Works, Inc. “shall maintain the Wildflower Works I at no cost to the Chicago Park District including, without limitation, weeding and application of fertilizer.” Although it did not contain a notice-of-termination provision, the...
To continue reading
Request your trial
-
Garcia v. Google, Inc.
...to control the integrity of their works and to guard against distortion, manipulation, or misappropriation. See Kelley v. Chicago Park Dist., 635 F.3d 290, 296 (7th Cir.2011) (describing differences in moral rights in American copyright law versus other countries). Except for a limited univ......
-
MG Design Assocs., Corp. v. Costar Realty Info., Inc.
...is required "for an action brought for a violation of the rights of the author under section 106A(a)." Kelley v. Chicago Park Dist. , 635 F.3d 290, 291 (7th Cir. 2011) ; TriTeq Lock & Sec. LLC , 2012 WL 394229, at *4 (copyright registration is not necessary if "the alleged infringement conc......
-
Kim Seng Co. v. J&A Importers, Inc.
...requirement. J & A contends that, because the food is perishable, it cannot be considered “fixed” for copyright purposes. In Kelley v. Chicago Park Dist., the Seventh Circuit, as a matter of first impression, analyzed whether an artistically arranged garden (“Wildflower Works”) was constitu......
-
Designworks Homes, Inc. v. Columbia House of Brokers Realty, Inc.
...or photograph, and not works that serve a utilitarian function, despite the addition of artistic embellishment. Kelley v. Chi. Park Dist., 635 F.3d 290, 300 (7th Cir. 2011). By way of illustration, "VARA may protect a sculpture that looks like a piece of furniture, but it does not protect a......
-
One Artist Suggests Melting Down The Paterno Statue - Is It Legal?
...not violate VARA, such art is not categorically excluded from VARA and is still entitled to some protection. Kelley v. Chicago Park Dist., 635 F.3d 290, 306 (7th Cir. 2011) cert. denied, 132 S. Ct. 380, 181 L. Ed. 2d 240 For now, Di Maria is supporting the decision to remove the statue, alt......
-
Copyright Registration For Works Containing AI-Generated Material
...6 Id. 7 Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018). 8 Kelley v. Chicago Park District, 635 F.3d 290 (7th Cir. 2011) (case involving a garden). 9 See 17 USC. ' 411(b). 10 See 17 USC. ' 410(c), 412. 11 US Copyright Office, Spring 2023 AI Listening Sessions, https://www.copyright.gov/ai/li......
-
Copyright Review Board – non-human authors not allowed
...Maaherra, 114 F.3d 955, 957-59 (9th Cir. 1997), Naruto v. Slater, 888 F.3d 418, 426 (9th Cir. 2018) and Kelley v. Chicago Park Dist., 635 F.3d 290, 304 (7th Cir. 2011). The Board found that these cases revealed a consistent trend that non-human expression is ineligible for copyright protect......
-
Judge Rules AI-Generated Art Is Not Copyrightable
...arrangement, or representation" crafting the overall image."). 11. Id. at 4. 12. See id. at *5 (citing Kelley v. Chicago Park Dist., 635 F.3d 290 (7th Cir. 2011) (cultivated garden not copyrightable because the garden owed its form to the forces of nature); Naruto v. Slater, 888 F.3d 418 (9......
-
VARA rights get a Second Life.
...of art that will be covered ... [T]his legislation covers only a very select group of artists." Id. (42.) Kelley v. Chicago Park Dist., 635 F.3d 290, 300-02 (7th Cir. Feb. 11, 2011) (comparing the language of VARA to that of 17 U.S.C. § (43.) See id. at 294 (stating that courts should look ......
-
UNITED STATES LAW'S FAILURE TO APPRECIATE ART: HOW PUBLIC ART HAS BEEN LEFT OUT IN THE COLD.
...Id. (73.) "VARA's definition of 'work of visual art' operates to narrow and focus the statute's coverage...." Kelley v. Chi. Park Dist., 635 F.3d 290,300 (7th Cir. (74.) JONES, supra note 22, at 147. (75.) See infra Section II.A. (76.) JOHN HENRY MERRYMAN & ALBERT E. ELSEN, LAW, ETHICS ......
-
An Examination of Graffiti Protection and the Social Obligation Theory of Property
...221. Bonadio, supra note 21, at 20.222. Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128 (1st Cir. 2006); Kelley v. Chi. Park Dist., 635 F.3d 290 (7th Cir. 2011).223. Bonadio, supra note 21, at 20.224. Id.225. Cloon, supra note 3, at 56.226. 37 C.F.R. § 202.1(a) (2022).227. Halberstadte......
-
LAW IS IN THE BIN: NEW FRONTIERS IN CONCEPTUAL ART AND LEGAL LIABILITY.
...the moral right of integrity as applied in the United States). (133) 17 U.S.C. [section][section] 101, 106A(b); Kelley v. Chi. Park Dist., 635 F.3d 290, 298-99 (7th Cir. (134) Kelley, 635 F.3d at 291-95. (135) Id. at 300. (136) Id. at 300-01. (137) Id. at 303-06. (138) Id. at 304. (139) Eng......