Caseflicks

Court of Appeals for the Seventh Circuit • 2011

Kelley v. Chicago Park District

635 F.3d 290 | 2011 U.S. App. LEXIS 2915

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Takeaway

In short, this case holds that however artistically significant a living garden may be, its natural changeability prevents it from being a copyrighted work eligible for VARA’s moral-rights protection, and an individual park commissioner cannot bind the public body without board authorization.

Background

Chapman Kelley, a painter known for floral landscapes framed in elliptical forms, received permission from the Chicago Park District in 1984 to install “Wildflower Works” in Grant Park. The project consisted of two enormous elliptical beds of native wildflowers, bounded by gravel and steel. Kelley selected and arranged the plants so that blooms and colors would develop in a planned sequence, while he and volunteers maintained the garden. The Park District promoted the installation as “living art.”

Kelley’s permits initially gave the Park District power to terminate the installation on notice. Later permits allowed Kelley responsibility for the garden’s aesthetic design and stated that he owned the planting material, but expressly created no continuing proprietary interest in operating the display. After the formal permits ended, Kelley continued maintaining the garden without a new permit. In 2004, a commissioner told him, “You’re still there, aren’t you? That’s all you need to do.” Soon afterward, citing maintenance problems and changes to Grant Park, the Park District reduced the garden from about 66,000 to under 30,000 square feet, changed its ellipses into rectangles, replanted surviving flowers, and added other plants.

Kelley sued under the Visual Artists Rights Act of 1990 (VARA), claiming that the redesign intentionally modified his work in a manner prejudicial to his honor or reputation. He also claimed that the commissioner’s statement created an implied contract requiring reasonable notice before alteration. After a bench trial, the district court rejected the VARA claim, holding that the garden lacked copyright originality and that site-specific art was categorically outside VARA. The court nevertheless found an implied contract and awarded Kelley nominal damages of one dollar. Both parties appealed.

Issues

Issue #1

Whether Wildflower Works was eligible for protection under VARA despite being a living garden.

Holding

No. Wildflower Works was not copyrightable because a living garden lacks the human authorship and stable fixation required by copyright law; therefore, it could not receive VARA protection.

Reasoning

VARA grants limited moral rights, including a right to prevent certain intentional modifications prejudicial to an artist’s honor or reputation, but only for specified “works of visual art.” Just as important, VARA expressly excludes any work not subject to copyright protection. Thus, Kelley first had to establish that Wildflower Works satisfied copyright’s baseline requirements: an original work of human authorship fixed in a tangible medium of expression.

The district court erred in treating originality as a novelty requirement. Copyright does not demand that an artist be the first person to use elliptical flower beds or native wildflowers. Because Kelley did not copy another work and made creative choices in designing the garden, Wildflower Works easily cleared copyright’s low originality threshold.

But originality was not the real obstacle. Copyright requires human authorship and fixation. A garden is planted and cultivated, rather than authored in the copyright sense: its appearance substantially results from natural forces, including plant growth cycles, weather, insects, animals, weeds, and the plants’ interaction with one another. The gardener determines an initial arrangement, but nature determines much of the form the garden later takes.

The garden also was not fixed in a sufficiently stable form. Its plants continually germinated, grew, bloomed, spread, withered, and died. That inherent variability leaves no stable baseline for identifying the copyrighted work or deciding whether another work has copied it. The essential feature of a garden is its vitality and perpetual change, not a permanent embodiment of the artist’s expression.

The court distinguished a garden from a copyrighted garden plan. A landscape architect’s written diagrams, drawings, or text may be a fixed copy of the designer’s expression and may receive copyright protection. The garden installed from that plan, however, is not itself a stable, fixed copy. Because Wildflower Works was neither authored nor fixed in the legally required senses, it was outside copyright and consequently outside VARA.

Issue #2

Whether Wildflower Works qualified as a VARA-covered “painting” or “sculpture.”

Holding

The court did not decide the question because the Park District did not challenge the district court’s conclusion on appeal, and the garden’s lack of copyrightability independently defeated Kelley’s VARA claim.

Reasoning

The court expressed substantial doubt that a living garden is literally a “painting” or “sculpture” within VARA’s narrow definition of a work of visual art. VARA uses those specific nouns as limitations, not as broad references to anything with painterly or sculptural qualities. Treating every three-dimensional artistic installation as a sculpture, or every arrangement of colors as a painting, would erase the statutory limits.

The court nevertheless declined to resolve the issue. The Park District had not appealed the district court’s determination that the garden could be both a painting and a sculpture. Because copyrightability was independently dispositive, the court moved directly to that threshold requirement.

Issue #3

Whether site-specific art is categorically excluded from VARA protection.

Holding

The court did not decide the issue, but cautioned that the district court’s categorical exclusion of all site-specific art was doubtful.

Reasoning

The district court followed the First Circuit’s decision in Phillips v. Pembroke Real Estate, which held that VARA does not cover site-specific art because moving such art necessarily changes or destroys it, while VARA’s public-presentation exception generally permits changes in a work’s placement absent gross negligence.

The Seventh Circuit questioned that all-or-nothing approach. The term “site-specific art” does not appear in VARA, and nothing in the definition of a qualifying work of visual art expressly excludes it. The public-presentation exception narrows an artist’s remedies for changes in placement or display; it does not eliminate every VARA right held by an artist whose work is site-specific.

Site-specific art may be modified by relocation without always being entirely destroyed, and it can also be damaged or defaced in ways unrelated to its location. In addition, VARA’s building exception specifically addresses certain artworks incorporated into buildings, suggesting that Congress did not silently exclude all site-specific works. These observations did not resolve the question because Wildflower Works failed the independent copyrightability requirement.

Issue #4

Whether a single Chicago Park District commissioner could create an implied contract binding the Park District through an informal statement.

Holding

No. Commissioner Burroughs lacked unilateral authority to bind the Park District, so her statement could not create an enforceable implied-in-fact contract.

Reasoning

The district court treated Commissioner Burroughs’s statement—“You’re still there, aren’t you? That’s all you need to do.”—as an implied agreement requiring reasonable notice before the Park District altered the garden. The court of appeals held that this conclusion rested on an error of law concerning the commissioner’s authority.

The Chicago Park District Act gives the Park District’s commissioners, collectively, authority to manage the District. Read with the Illinois Park District Code, it requires express authority from the board at a meeting, recorded in its proceedings, before a board member may create a debt, obligation, claim, or liability for the district. The statutes establish one corporate authority—the Board of Commissioners—not separate authority in each individual commissioner.

There was no evidence that the Board authorized Burroughs to contract with Kelley. Under Illinois law, an ultra vires municipal contract is invalid. Her casual remark therefore could not bind the Park District, and the Park District was entitled to judgment on the contract claim rather than nominal damages.