Make no mistake about it: Chapman Kelley is an artist. He studied art at university for a combined total of 15 years. He has held scores of exhibitions; the first of which opened to sell-out audiences in 1963. Over the last quarter of a century, Kelley has been interviewed and has featured on radio and television broadcasts around the world.
But, earlier this month, the US Court of Appeals for the Seventh Circuit held that, arguably Kelley’s most famous piece, “Wildflower Works”, was not eligible for copyright protection. “Wildflower Works” was first installed by Kelley (at his own expense) in 1984 in Chicago’s Grant Park. The work, a real-life version of one of Kelley’s earlier paintings, featured two large ovals each containing scores of native plants. According to Kelley, his piece was “environmental art [combining] aesthetics and conservation”.
Despite billing it as a significant work of “living art” for almost two decades, in 2004, the Chicago Park District ordered that “Wildflower Works” be extensively altered. Kelley brought legal proceedings alleging that his moral rights (namely that of integrity) had been infringed. The key preliminary question for the Court, though, was whether copyright actually subsisted in “Wildflower Works”.
As an initial point, the Court had real issues with the notion of Kelley’s work being classified as a ‘sculpture’, and thus an ‘artistic work’. The Court noted that the statutory framework required the work in question to actually be a ‘sculpture’ as opposed to simply “sculptural in some aspect”.
The trouble with this line of reasoning is that it takes a terribly antiquated view of what constitutes “art”. One must remember that a work does not need to be of ‘artistic merit’ in order to quality for copyright protection. More importantly, though, the general notion of what constitutes a ‘sculpture’ is no longer confined to a cast bronze statue. It’s been almost 100 years since Duchamp found himself a urinal, scribbled “R Mutt” on it and submitted it for display at an exhibition. “Fountain” has since been labelled the most influential piece of art of the twentieth century. Now that we’ve accepted that even the ‘ready-made’ can be a sculpture, can a Judge legitimately argue that the manual creation of a large elliptical space housing flora and other objects is not?
Interestingly, the Seventh Circuit, considered the most significant barrier to “Wildflower Works” being copyrightable to stem from the absent hallmarks of authorship and fixation in material form. The Court noted that gardens are not created by authors, but grow from seedlings. While the ‘artist’ might have an idea or plan about what they want the garden to look like, they are not ultimately responsible for bringing the ‘work’ into existence.
Similarly, due to the fact that a garden is ever-changing, the Court had difficulty in seeing how the garden is ever ‘fixed’ in material form – a necessary requirement for subsistence of copyright. At what point in time would a Court assess the garden in the context of an infringement action? Is it a new work everyday? This can’t be right as the purported author probably isn’t making daily ‘changes’ and so can’t be said to have ‘authored’ each ‘new work’.
This problem might be rebutted by arguing that copyright subsists in the specific concept of two large elliptical shapes sitting next to each other, housing native American flowers cultivated to a particular height. This approach would protect the overall design, but not the constituent elements. Query though, whether this would afford Kelley the protection that he seeks.
When we dig beneath the topsoil, the decision might be best explained on a policy basis. The composition of gardens is an emotional and personal topic about which many have strong feelings. The Courts might not yet be ready for the likely flood of new cases if Kelley had prevailed in his action…