Very non-garden-variety case: landscaper artist’s "rights of integrity" not violated by city trimming his garden

COURT OF APPEALS FOR THE SEVENTH CIRCUIT, DECISION OF 15 FEBRUARY 2011, NOS. 08-3701, 08-3712, KELLEY V. CHICAGO PARK DISTRICT

Nothing is coming up roses for Chapman Kelley, the artist responsible for creating an acclaimed showpiece garden in Chicago’s Grant Park. A federal appeals court rejected Kelley’s claim that his "rights of integrity" were violated when the city altered his artistic garden.

In the hands of a skilled artist with a green thumb, a garden can be a great many things. Refreshing. Aromatic. Romantic. Uplifting; inspiring, perhaps. However it cannot — so long as the seasons change and nature holds sway — be copyrighted in the United States. And because it cannot be copyrighted, an artist cannot successfully claim that her "moral rights" are violated if the garden is altered or destroyed, either.

This was the holding in Kelley v. Chicago Park District, an opinion issued in February by the influential United States Court of Appeals for the Seventh Circuit. Artist Chapman Kelley planted "Wildflower Works" in Chicago’s Grant Park in 1984, pursuant to a permit granted to him by the Chicago Park District. It was to be a form of "living art": two elliptical flower beds occupying 1.5 acres in the heart of downtown Chicago. As a good artist should, Kelley accounted for aesthetic, cultural, environmental, and practical concerns as he chose his flowers and otherwise crafted his garden. When the flowers bloomed in the spring of 1985, Kelley’s "living landscape art" was met with widespread acclaim.

Click here to view Chapman Kelley's "Wildflower Works"

The display remained largely unaltered (perhaps it could have used more tending, as the court observed) for the next 19 years, until the Parks District transformed Kelley’s ellipses to rectangles, reducing the square footage from 66,000 to 30,000. Kelley sued, claiming that his moral rights were violated under the Visual Artists Rights Act of 1990 (VARA).

VARA is the United States’ attempt to import the concept of "moral rights" into its copyright code, as required by the Berne Convention for the Protection of Literary and Artistic Works. Kelley claimed a violation of one category of his "moral rights" — his "rights of integrity," which guarantees an artist’s right to prevent any "distortion, mutilation, or other modification of" the artist’s work that "would be prejudicial to his or her honor or reputation." Crucially, VARA protection does not apply to "any work not subject to copyright protection." Thus, in order to succeed, Kelley needed to prove that (a) he is the "author" of the work, and (b) that the garden was a work that is "fixed" in a "tangible medium of expression."

Kelley could not establish either, according to the court. A garden is composed of living things (in this case, wildflowers). Its elements, rather than being "fixed," are inherently changeable, and thus cannot meet the statutory requirements for fixation. Further, Kelley was not the "author" of the work, as the garden’s artistic characteristics "originate[] in nature, not in the mind of the gardener." While the court acknowledged that Kelley’s garden may be viewed as a form of "postmodern conceptual art," it simply did not bear the characteristics of "authorship" and "fixation" necessary to entitle it to copyright protection — thus it was not entitled to VARA protection, either.

The court also commented on other issues that, although not necessary for its holding, warranted clarification. First, VARA protection applies to "painting[s]" and "sculpture[s]" (among other works), and a garden is neither. In this regard, VARA protection is actually more limited than general U.S. copyright law, which protects "pictorial" and "sculptural" works, i.e., works that are like, but not actually, pictures and sculptures. Second, the court declined to go so far as to say that, as a matter of law, "VARA does not apply to site-specific art at all," in contrast to the approach taken by its sister court, the United States Court of Appeals for the First Circuit.

Kelley demonstrates the United States’ reluctance to embrace an expansive application of "moral rights," notwithstanding the United States’ acceptance of the relevant terms of the Berne Convention. VARA protection is explicitly limited to artists who create copyrightable works — and only a subset of those, at that. Before pressing any argument about "moral rights" in the United States, counsel would be wise to ensure that the work in question meets the basic requirements for copyright protection in the first place.