Garden Copyright Claim Heads to Supreme Court

     CHICAGO (CN) – The creator of a living garden in downtown Chicago’s Grant Park has asked the Supreme Court to review whether copyright law protects his installation.
     A three-judge panel of the 7th Circuit found no such protection in a February decision, agreeing that the city could modify the garden as it so fit.
     Chicago Park District gave artist Chapman Kelley a permit in 1984 to install a 66,000 square-foot garden titled “Wildflower Works” at Grant Park.
     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.
     In 2004, the park district cut the exhibit’s size to just under 30,000 square feet and replaced the elliptical flower beds with square ones.
     Kelley filed suit, alleging violations of the Visual Artists Rights Act of 1990 (VARA) and breach of an oral contract established by conversations with Park District Commissioner Margaret Burroughs shortly before the changes were made.
     “To our knowledge, never before in the history of U.S. copyright law has a professionally trained and exhibited artist such as Kelley had to defend a work of art against someone else’s definition of what constitutes art,” Kelley’s lawyer wrote in a press release.
     The 7th Circuit ruled that the flowers were not sufficiently original or fixed to merit federal copyright protection and ruled in favor of the city. It also reversed a federal judge’s decision to award Kelley $1 in damages for breach of contract, finding that individual commissioners could not bind the full board to a contract without approval.
     In April, the court unanimously denied Kelley’s petition for en banc rehearing.
     Kelley has been involved in other disputes regarding the display of his artwork. In June 2010, Kelley asked to buy back his painting, “Sand Dune,” from the Dallas Museum of Art because he did not like the aesthetic feel of the exhibition in which it was displayed. 

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