Kelley v. Chicago Park District, No. 04 C 7715, Slip Op. (N.D. Ill. Sep. 29, 2007) (Coar, J.).

Judge Coar entered judgment for defendant the Chicago Park District (“CPD”) on plaintiff Chapman Kelley’s (“Kelley”) two Visual Artists Rights Act (“VARA) claims and for Kelley as to his implied breach of contract claim, after holding a bench trial.* Kelley brought this suit arguing that his work of art “Wildflower Works” (“WW”) was copyrightable as a sculpture pursuant to the Copyright Act and the 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. 

As an initial matter, the Court noted that there was a significant tension between the laws desire to define things, like what a sculpture is, and modern art:

There is a tension between the law and the evolution of ideas in modern or avant garde art; the former requires legislatures to taxonomize artistic creations, whereas the latter is occupied with expanding the definition of what we accept to be art. While Andy Warhol’s suggestion that “art is whatever you can get away with” is too nihilistic for the law to accommodate, neither should VARA be read so narrowly as to protect on the most revered work of the Old Masters. In other words, the “plain and ordinary” meanings of words describing modern art are still slippery.

The Court held that WW was a sculpture, or three dimensional art work, based upon Kelley’s manipulation of the flowers, metal and gravel used to form the contours and colors of WW. Similarly, while WW was not just two dimensional, it was also a painting because it “corral[ed] the variegation of wildflowers in bloom into pleasing oval swatches . . . .”

Although WW was a sculpture and a painting, it was not protectable pursuant to the Copyright Act and, therefore, pursuant to VARA because it is also an excluded type of authorship, a system. Section 102(b) specifically excludes systems, along with ideas, procedures and processes from copyright protection. Kelley had described WW as a “vegetative management system.” (emphasis added in the Court’s opinion). Additionally, WW was not copyrightable because Kelley did not prove that it was an original work of authorship. The Court held that it was not clear what about WW was original. And the Court would not assume that Kelley was “the first person to ever conceive of and express an arrangement of growing wildflowers in [an] ellipse-shaped enclosed area . . . .”

WW would not have been protected pursuant to VARA even if it were copyrightable because WW was a site-specific work. Because the Seventh Circuit had not decided whether VARA protected site-specific works, the Court adopted the First Circuit’s reasoning that VARA does not protect site-specific works.  Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128 (1^st Cir. 2006). The Court held that WW’s placement in Grant Park was integral to Kelley’s art. For example, even air vents from the parking garage below WW were specifically worked into WW as an artistic element helping to show the juxtaposition of wildlife and city life.

The Court did, however, hold that CPD created an implied contract when a Parks Commissioner assured Kelley that he did not need to seek additional permits to maintain his work. As such, CPD was obligated, not to maintain WW, but to give Kelley at least ninety days notice of any change in WW and allow Kelley to remove his wildflowers should he choose to do so. Because Kelley was not given notice, CPD breached the implied contract. Because, however, Kelley did not sufficiently prove his damages – the cost of the flowers less Kelley’s cost to remove them after he would have received notice. The Court, therefore, awarded Kelley nominal damages of $1.

According to a press release from Kelley, he was happy about the implications of the Court’s opinions for other artists, but disappointed with the nominal damages:

This ruling redefines legally what can be fine art, what it can be made of and that artists themselves make these decisions. However, regarding the nominal consideration amount that I received of $1.00, it reminds me of the 1878 case of Whistler Vs. Ruskin, in which the plaintiff received a sum total of one shilling for his moral victory.

For more on this case and the Court’s decision click here for a Chicago Sun-Times article by Andrew Herrmann.

* Click here for more on this case in the Blog’s archives.