Considering whether an artist could seek redress under the Visual Artists Rights Act of 1990 (VARA) for alleged modification of his work, a flower bed installation, the U.S. Court of Appeals for the Seventh Circuit affirmed the district court’s decision that the flower bed could not be protected by copyright. Kelley v. Chicago Park District, Case No. 08-3701 (7th Cir., Feb. 15, 2011) (Sykes, J.).

Chapman Kelley, a nationally recognized artist known for his representational paintings of landscapes and flowers, obtained permission in 1984 from the Chicago Park District to install a wildflower display in Grant Park in downtown Chicago. Kelley’s wildflower installation was promoted as “living art.” Kelley and a group of volunteers maintained and replanted the garden as needed for approximately 20 years. In 2004, the Park District modified the wildflower installation by, among other things, reducing its size in half. Consequently, Kelley sued the Park District for, in part, violating his “right of integrity” under VARA. Specifically, Kelley alleged violations of the moral right to prevent any intentional mutilation or modification of an author’s work that would be prejudicial to his or her honor or reputation.

The district court found for the Park District on Kelley’s VARA claim, ultimately concluding that the wildflower display lacked sufficient originality to qualify for copyright and that site-specific art, i.e., art that integrates its location as an artistic element, is excluded from protection under VARA. Notably however, the court ruled that the wildflower display could be classified as both a “painting” and “sculpture” for purposes of VARA. Kelley appealed.

The 7th Circuit affirmed the district court’s determination that Kelley’s flower bed installation was not protected by copyright, but for different reasons. The 7th Circuit rejected the district court’s reasoning that Kelley’s work was unoriginal because Kelley was not “the first person to ever conceive of and express an arrangement of growing wildflowers in ellipse-shaped enclosed area[s].” Rather, the 7th Circuit determined that Kelley’s wildflower installation was not protectable by copyright because it lacked sufficient “authorship” and “fixation.” As to authorship, the court explained that “[a]uthors of copyrightable works must be human; works owing their form to the forces of nature cannot be copyrighted.” As to fixation, the court determined that “a garden is simply too changeable to satisfy the primary purpose of fixation; its appearance is too inherently variable to supply a baseline for determining questions of copyright creation and infringement.”

Although not raised on appeal, the 7th Circuit also addressed whether a garden was appropriately classified as a “painting” or a “sculpture.” Ultimately, the court concluded that neither classification was appropriate because by using the specific nouns “painting” and “sculpture,” VERA limits moral rights protection to actual paintings or sculptures, not works that are “pictoral” or “sculptural” in some aspect or effect. Concerning the district court’s determination with respect to “site-specific art,” the 7th Circuit disagreed that all such art was per se excluded under VARA. Ultimately the court did not decide the question, however, because it resolved Kelley’s VARA claim on other grounds.

Practice Note: At least in the 7th Circuit, copyright protection is unlikely to be conferred on landscaping installations or other living-type works in which the work relies on forces of nature to embody the work.