Kelley v. Chicago Park District, No. 04 C 7715, Slip Op. (N.D.Ill. Sep. 14, 2007) (Coar, J.).

Judge Coar ordered the parties to submit further briefing regarding whether plaintiff Chapman Kelley’s (“Kelley”) work of art “Wildflower Works” (“WW”) was copyrightable as a sculpture pursuant to the Copyright Act and the Visual Artists Rights Act (“VARA”). Kelley originally installed his WW in Chicago’s Grant Park in 1984 pursuant to a permit from the City of Chicago. WW was an installation of wild flowers in two elliptical shapes surrounded by gravel — click here for pictures from Kelley’s website — that Kelley replanted and tended each year. Chicago periodically renewed the permit until 1994, when Kelley continued his WW pursuant to an oral permit renewal. Then in 2004, Chicago fenced off WW, effectively destroying it. Kelley then brought this suit alleging copyright infringement, violation of VARA and various state law claims.

The Court considered various issues relating to jurisdiction and the validity of the alleged oral permit renewal. But the Court held that it lacked sufficient information to resolve the issue of whether WW was protectable as a sculpture pursuant to the Copyright Act and VARA. The Court struggled with whether a growing, evolving planting of flowers could be considered a sculpture using common dictionary definition. But the Court also acknowledged the artistic value of arranging flowers and plants, which precluded a holding that WW was per se not a sculpture:

to do so would ignore such exquisite examples of living art as topiaries, which are created by clipping and trimming living plants, usually bushes, into exotic shapes.

This is an interesting issue. I appreciate the value of flower arrangements and the beauty of WW specifically, but calling a collection of spontaneously growing, changing plants a sculpture does not fit the traditional definition anymore than calling a football game (a particular arrangement of spontaneously moving living things) a sculpture does. It may be more akin to a choreographed ballet, but flowers cannot follow a pre-set script.

Update: The Court held a two-day bench trial in late September. A minute order indicated that the Court issued preliminary findings at the conclusion of the trial (which appear to have been favorable to Kelley based upon various accounts suggesting that Kelley won the trial), but then ordered the parties to: 1) brief certain issues (presumably including whether WW was copyrightable or otherwise protected by VARA); and 2) provide the Court with proposed findings of fact and conclusions of law. Those filings were delayed by settlement efforts which appear to have fallen through. The requested briefing is now set to be completed in mid-January with the Court’s decision to follow without further hearing. I will keep you posted on the outcome. But if you want more information on the case before early 2008, click here for the Final Pretrial Order which gives a sense of the disputed issues and the CV’s of the experts.