Wednesday, February 16, 2011
Seventh Circuit: No Moral Rights In Flower Gardens Under VARA
In Chapman Kelly v. Chicago Park District, 2011 WL 501161 (7th Cir. Feb 15, 2011), the Seventh Circuit rejected a claim of moral rights in a public garden in Chicago.
What is a painting? What is a sculpture? What is original and what is fixation? All interesting questions tackled by the Seventh Circuit in determining whether an artist had moral rights in a garden under the Visual Artists Rights Act.
From the decision (linked below)
Simply put, gardens are planted and cultivated, not authored. A garden’s constituent elements are alive and inherently changeable, not fixed. Most of what we see and experience in a garden—the colors, shapes, textures,and scents of the plants—originates in nature, not in the mind of the gardener. At any given moment in time, a garden owes most of its form and appearance to natural forces, though the gardener who plants and tends it obviously assists. All this is true of Wildflower Works, even though it was designed and planted by an artist.
Of course, a human “author”—whether an artist, a professional landscape designer, or an amateur backyard gardener—determines the initial arrangement of the plants in a garden. This is not the kind of authorship required for copyright. To the extent that seeds or seedlings can be considered a “medium of expression,” they originate in nature, and natural forces—not the intellect of the gardener—determine their form, growth, and appearance. Moreover, a garden is simply too changeable to satisfy the primary purpose of fixation; its appearance is too inherently variable to supply a baseline for determining questions of copyright creation and infringement. If a garden can qualify as a “work of authorship” sufficiently “embodied in a copy,” at what point has fixation occurred? When the garden is newly planted? When its first blossoms appear? When it is in full bloom? How—and at what point in time—is a court to determine whether infringing copying has occurred?
Chapman Kelly v Chicago Park District
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
Labels: art law, copyright and fine art, copyright in gardens, copyright law, fixation, originality, VARA, visual artists rights act
Partner in law firm Dunnington Bartholow & Miller LLP in New York City litigating in federal and state courts and arbitrations. Experienced trial and appellate practitioner. Author: Copyright Litigation Handbook (Thomson Reuters 2019-2020). The New York Law Journal called it "an indispensable guide". Board of Directors of the Fordham Law Alumni Association, former General Counsel & Director Federal Bar Association, FBA Chair of the Circuit VPs, ViP for Second Circuit. Member Board of Governors, National Arts Club. President, Network of Bar Leaders (2013-2014). Attorney advertising disclaimer - prior results do not guarantee success. The statements and opinions voiced here are my own and not of my law firm.