KELLEY v. CHICAGO PARK DISTRICT (February 15, 2011)

In 1984, theChicago Park District gave Chapman Kelley a permit to install a large wildflower display in Chicago’s Grant Park. Kelley was a nationally known painter at the time, known principally for landscapes and floral scenes. He had already, on two occasions, transferred his creativity from the canvas to the ground. The Chicago project covered 1.5 acres and consisted of 48-60 different species of wildflowers. The flowers were placed such that they bloomed at different times, changed colors throughout the season, and increased in brightness toward the center of the project. The project was a huge success. Kelley (and volunteers) continued to maintain the project until 2004, when the Park District reduced the project to less than half of its original size and made other changes. Kelley brought suit against the Park District under the Visual Artists Rights Act of 1990 ("VARA"). He also brought a breach of contract action based on a Park Commissioner's oral promise that the project could continue. After a bench trial, Judge Coar (N.D. Ill.) entered judgment for the Park District on the VARA claim. He concluded that the project qualified as a work of visual art but was insufficiently original under copyright law to merit the protection of VARA. Alternately, he concluded that VARA did not apply because the project was site-specific art. The court entered judgment for Kelley on the contract claim, but awarded damages of only one dollar. Kelley appeals. The Park District cross-appeals.

In their opinion, Judges Manion, Sykes, and Tinder affirmed in part and reversed and remanded in part. The court explained some of the background and history of VARA, dating back to 19th-century France, the European notion of artists' moral rights, the 1886 Berne Convention, and the 1988 Senate ratification of the treaty. After the treaty's ratification, Congress amended the copyright act with VARA. It provided artists with a limited set of moral rights, including the right to prevent modification of one's work. In order to be protected by VARA, however, a work must be “a painting, drawing, print or sculpture.” In addition, the statute explicitly excludes any work not subject to copyright protection. The statute also excludes from protection the modification of a work which is a “public presentation.” The Court discussed at some length but did not decide the public presentation issue (because it decided the case on other grounds) and the painting or sculpture issue (because the Park District did not challenge the district court's conclusion). Instead, it resolved the statutory issue on copyright grounds. In order to qualify for copyright protection, a work must have a human author and must possess fixation (that is, be reduced to tangible form). The Court found both of these elements missing in the wildflower project. It concluded that a wildflower garden is not authored – it is cultivated. It is also not stable enough to be fixed. In fact, its very essence is one of change and growth. Since the work is not subject to copyright protection, is not entitled to protection under VARA. They Court also briefly addressed the contract claim. Relying on the Chicago Park District Act and the Illinois Park District Code, the Court concluded that a single Park District Commissioner had no authority to bind the District. Therefore, the oral "contract" relied upon by Kelly is invalid.