"Wildflowers, just not Kelley's Wildflower Works"

In February 2011, the Seventh Circuit decided in Kelley v. Chicago Park District that Wildflower Works, a large-scale outdoor wildflower display is not copyrightable, and consequently, lacks any moral rights under the Visual Artists Rights Act (VARA).

A nationally recognized artist, Chapman Kelley, created Wildflower Works in 1984, and it existed in Grant Park in Chicago for 20 years.  It was composed of 2 enormous flowerbeds – they covered 1.5 acres of the park – in the shape of ellipses.  Kelley chose between 48 and 60 species of wildflowers native to the region, and he designed the placement of the flowers so that they would “blossom sequentially, changing colors throughout the growing season and increasing in brightness towards the center of each ellipse.”

However, in 2004 the Park District reduced Wildflower Works to less than 1/2 its original size, the elliptical borders became rectilinear, and the wildflowers were replanted in the smaller garden.  In response, Kelley sued the Park District for violating his moral rights under VARA.

The District Court found that Wildflower Works was both a painting and a sculpture, and was thus qualified as a “work of visual art” under VARA.  But, it ruled that it was insufficiently original for copyright protection.  Because copyrightability is a prerequisite for VARA, Kelley lacked any economic or moral rights for the work.

The Seventh Circuit had different reasoning, yet it still arrived at the same conclusion – no copyright protection, so no VARA coverage.  The court held Wildflower Works was sufficiently original, but it lacked the kind of authorship and stable fixation to justify copyright protection.  Therefore, it is excluded from any additional moral rights under VARA.  Even if it had satisfied the copyright requirements, the Seventh Circuit would have found it was not a “work of visual art” for VARA’s purposes because it was not a “painting, drawing, print, or sculpture.”  The Seventh Circuit stated that, “to qualify for moral rights protection under VARA, Wildflower Works cannot just be ‘pictorial’ or ‘sculptural’ in some aspect or effect, it must actually be a ‘painting’ or a ‘sculpture.’  Not metaphorically or by analogy, but really.”

This decision has vast implications for conceptual art.  In fact, one art scholar wrote that, “with two swift sentences, the 7th Circuit, through the prism of law, eviscerated land art and most painting post-1945.”  Another commentator remarked that, “though the court stopped short of setting a bright-line rule, the decision indicates that copyright’s definition of creative expression is not necessarily coextensive with that of the art community.”

In the Seventh Circuit’s own words:

We fully accept that the artistic community might classify Kelley’s garden as a work of postmodern conceptual art.  We acknowledge as well that copyright’s prerequisites of authorship and fixation are broadly defined.  But the law must have some limits; not all conceptual art may be copyrighted.  In the ordinary copyright case, authorship and fixation are not contested; most works presented for copyright are unambiguously authored and unambiguously fixed.  But this is not an ordinary case.  A living garden like Wildflower Works is neither “authored” nor “fixed” in the senses required for copyright.

This case elicits many questions.  First, doesn’t this decision run counter to the Bleistein nondiscrimination principle?  By eliminating conceptual art’s economic and moral rights, copyright law sends the message that it values it less than other more traditional art forms.  Isn’t that precisely the outcome that Justice Holmes in Bleistein sought to avoid?  Second, doesn’t this decision undermine the central purpose of copyright, which is to promote creative expression?  By excluding conceptual art from economic and moral rights, there is no incentive to create in non-traditional, cutting-edge mediums.  Doesn’t this stymie the future possibilities for artistic creations?

Rather than ending the discussion, hopefully this ruling will prompt additional discourse into the complicated relationship between conceptual art and copyright law.

Kat Kubis

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One Response to Uncertain Future for Conceptual Art

  1. John Viramontes - Council for Artists Rights says:

    Much thanks Kat Kubis for your write up and enlightening analysis. I would think that as people find this article, they may infer the image is of Kelley’s Wildflower Works. Could you caption the photo to avoid confusing what is and what is not CWW? thanks! One other blog has the same issue and he took my suggestion by adding a caption “Wildflowers, just not Kelley’s Wildflower Works”…that worked for me!