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 (1st 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.

Continue Reading Famous Grant Park Wildflower Works both Sculpture and Painting, but Not Protected by Copyright or VARA

The Chicago Sun-Times has begun live blogging the R. Kelly trial in Cook County state court at its new blog the Kelly Chronicles. As with the Chicago Tribune’s Rezko trial blog, Rezko Gavel to Gavel, the Kelly Chronicles is not IP-related. But regardless of the legal claims, trial blogs are a great way to get a non-legal perspective on a trial from start to finish. Fortunately for Chicago-area litigators and litigants, the Chicago papers have begun actively live-blogging local trials which should provide a wealth of this kind of information.

Continue Reading Chicago Litigation News: New Chicago Trial Blog

Cement-Lock v. Gas Tech. Institute, No. 05 C 0018 (N.D. Ill. Mar. 11, 2007) (Pallmeyer, J.).
Judge Pallmeyer presided over a jury trial resulting in a verdict for plaintiffs Cement-Lock LLC and Alderman Richard Mell on behalf of Cement-Lock Group (collectively “CLG”) on various RICO and breach of fiduciary duty claims. The jury awarded CLG $15M in damages. The jury also returned a verdict for defendants on CLG’s trademark infringement and Illinois Uniform Deceptive Trade Practices Act claims. Click here for Judge Pallmeyer’s Order entering the verdict and here for the jury instructions (Count IX is the trademark infringement count and Count XI is the Illinois Deceptive Trade Practices Act count).
This was a dispute over the control and use of Cement-Lock technology (the “Technology”) which decontaminated certain waste products and used the decontaminated waste as a beneficial cement additive. CLG asserted various IP claims, including Lanham Act unfair competition, deceptive trade practices and trademark infringement. CLG alleged that defendants permitted defendant Gas Technology Institute (“GTI”) to secure funding for Technology-related activities, despite defendants’ knowledge that GTI had no license to use the Technology and kept knowledge of the funding from CLG. GTI also allegedly claimed to own and have developed the Technology.
For more about this case and the verdict, check out:
* The Blog’s archives; and
* The Chicago Sun-Times.

Continue Reading Jury Returns IP Verdict for Defendants & Awards Plaintiffs’ $15M for Breached Fiduciary Duties & RICO

The Chicago Sun-Times reported that Judge Filip’s nomination as Deputy Attorney General has cleared one of its final hurdles — click here for the story. Senator Dick Durbin (D-Ill.) agreed to remove a hold placed on Judge Filip’s confirmation vote after Attorney General Michael Mukasey answered Senator Durbin’s questions regarding the legality of interrogation techniques. According to a Chicago Tribune story (click here for the story), Judge Filip is expected to be confirmed by the Senate. Of course, that is not surprising since the Senate previously confirmed him to become a federal district judge.

Continue Reading Judge Filip to Get Senate Confirmation Vote

The Chicago papers had a few IP-related articles this week. First, the Chicago Tribune reported – click here for the story — that Chicago software company SPSS is in a trademark dispute with its co-founder and former chairman, Norman Nie. Nie has informed SPSS that he believes he owns SPSS’s trademark, which he licensed to SPSS beginning in 1976. Nie is reportedly offering to sell SPSS the mark for $20M.
Second, the Tribune reported – click here for the story – that Motorola and Metrologic Instruments settled their patent disputes regard bar code scanning and mobile computing technology for an undisclosed amount and a limited-term cross-licensing agreement. The Chicago Sun-Times ran a similar story – click here to read it — and reported that Motorola entered the dispute with Metrologic based upon its 2006 acquisition of Symbol Technologies.

Continue Reading IP in the Sun-Times and Tribune

My recent story about Ebert’s use of his “Two Thumbs Up” has been receiving a lot of attention (and I even scooped the Sun-Times):
Likelihood of Confusion — Ron Coleman agrees with E. Leonard Rubin, interviewed in the Chicago Tribune today, who says that the written “Two Thumbs Up” mark is pretty strong.
Robert Feder of the Chicago Sun-Times — Feder says that the “Two Thumbs Up” mark is “the most powerful and influential symbol in movie marketing.”
The fact that the Patent Reform Act has stalled in Congress, which I discussed earlier this week, has been picked up by several blogs:
Maryland IP Law Blog — Citing my post.
Patently-O — Dennis Crouch says that the Patent Reform Act is not just stalled, it is dead.
271 Patent Blog — Leads with a great Simpsons’ quote in saying the Act is on hold.

Continue Reading Chicago IP Blog in the News

As I pointed out early this week, the Conrad Black trial has little or no intersection with IP, but I could not resist posting about Neil Steinberg’s column in yesterday’s Chicago Sun-Times.  Steinberg spent a day observing the Black trial and provided his impressions of the jury system and Judge St. Eve.  Two of his observations were particularly interesting.  First, he found the trial very boring.  As IP lawyers and particularly patent lawyers, this is something we have to struggle with.  Making technology analysis and damages interesting is a difficult job and keeping jurors who only see a portion of the litigation proceedings awake and attentive can be difficult.

Second, Steinberg notes that "pay all that money to lawyers for a reason."  I would like to believe he meant because of the immense skill involved, but I am afraid it is because of how boring and complex he found the trial.Continue Reading A Glimpse Into Public Perceptions of Litigation

Michael Sneed’s Tuesday Chicago Sun-Times column included an entry entitled "Ring.  Ring."about the Northern District.  She rarely covers Northern District happenings, but the Conrad Black trial is major international news.  Sneed reports that during the Black trial, an attorney’s cell phone "erupted" with a ring tone from The Exorcist.  The always gracious Judge St. Eve

Last Thursday, Ocean Tomo held its third live patent auction in Chicago.  According to the Chicago Sun-Times report, nearly 300 people attended the auction live (I understand others bid by telephone) and that 50 patents were offered for bidding, generating $11.4M.  The Sun-Times also reports that Telecommunications Corp. sold a video-on-demand patent portfolio for