Artist Has No Case Over Uprooted Flower Project

     CHICAGO (CN) – The creator of a living garden in downtown Chicago’s Grant Park cannot sue the park district for modifying his work, the 7th Circuit ruled.




     In 1984, the Chicago Park District granted Chapman Kelley, a painter and landscape artist, a permit to install a 66,000 square-foot garden titled “Wildflower Works.”
     The garden consists of “two enormous elliptical flower beds, each nearly as big as a football field, featuring a variety of native wildflowers and edged with a border of gravel and steel.” Around 50 species of self-sustaining wildflowers, designed to withstand Chicago’s harsh winters, are featured. The work cost Kelley between $80,000 and $152,000 to install.
     Four years after its installation, the park district decided to terminate the garden, prompting a First Amendment suit from Kelley. The park district settled, granting Kelley a one-year permit extension that was renewed each year until 1994, after which no permit was granted but the garden stayed in place.
     In 2004, Kelley and the president of Wildflower Works Inc. met with Park District Commissioner Margaret Burroughs. When asked whether they needed a new permit, Burroughs responded, “You’re still there, aren’t you? That’s all you need to do.”
     Three months later, the park district announced plans to modify the exhibit, citing inadequate maintenance and changes to Grant Park necessitated by the construction of the adjacent Millennium Park.
     The exhibit was cut in size to just under 30,000 square feet and the elliptical flower beds were replaced with rectangular ones.
     Kelley filed suit, alleging violations of the Visual Artists Rights Act of 1990 (VARA) and breach of contract established by his 2004 discussion with Burroughs.
     VARA amended the Copyright Act, “importing a limited version of the civil-law concept of the ‘moral right of the artist’ into our intellectual-property law,” Judge Diane Sykes wrote for the federal appeals panel. “VARA supplements general copyright protection; to qualify for moral rights under VARA, a work must first satisfy basic copyright standards.”
     The three-judge appellate affirmed U.S. District Judge David Coar’s ruling that the living garden is not copyrightable. Wildflower Works qualifies as a painting or sculpture, a necessary condition for VARA claims, but the work is not sufficiently original.
     Coar had also ruled that VARA categorically excludes site-specific art. Although the court expressed concerns about such a blanket finding, Sykes wrote that “a living garden lacks the kind of authorship and stable fixation normally required to support copyright.”
     The 7th Circuit reversed Coar’s judgment for Kelley on the breach of contract claim, for which Kelley was awarded $1 in damages, finding that individual commissioners could not bind the full board to a contract without approval.
Kelley was represented by Micah Marcus of Kirkland and Ellis.

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