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Case Report: Landscape Art not Copyrightable

(This post is an edited extract of Chapman Kelley v. Chicago Park District, 2011.)

In 1984, Chapman Kelley, an artist recognized in the US for his representational paintings of landscapes and flowers received permission from the Chicago Park District to install an ambitious wildflower display at the north end of Grant Park, a prominent public space in the heart of downtown Chicago. The display, called “Wildflower Works”, was promoted as “living art”, and received critical and popular acclaim. It was tended by Kelley and a group of volunteers but by 2004, it had deteriorated, and the City’s goals for Grant Park had changed. So the Park District dramatically modified the display, by reducing its size, reconfiguring the shape of the flower beds, and changing some of the planting material.

Subsequently, Kelley sued the Chicago Park District for allegedly violating his “right of integrity” under VARA (i.e. Visual Artists Rights Act of 1990; 17 U.S.C. § 106A) and for breach of contract.

The United States Court of Appeals for the Seventh Circuit held that the contract claim was insubstantial, that  for reasons relating to copyright’s requirements of expressive authorship and fixation, a living garden like Wildflower Works was not copyrightable, and that the artist was not entitled to the benefit of "moral rights".

The Court came to this conclusion in spite of recognising that the artistic community might classify a garden as a work of postmodern conceptual art, and that copyright’s prerequisites of authorship and fixation are broadly defined.

The Court held that:
...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. ... 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?

In contrast, when a landscape designer conceives of a plan for a garden and puts it in writing—records it in text, diagrams, or drawings on paper or on a digital-storage device—we can say that his intangible intellectual property has been embodied in a fixed and tangible “copy.” This writing is a sufficiently permanent and stable copy of the designer’s intellectual expression and is vulnerable to infringing copying, giving rise to the designer’s right to claim copyright. The same cannot be said of a garden, which is not a fixed copy of the gardener’s intellectual property. Although the planting material is tangible and can be perceived for more than a transitory duration, it is not stable or permanent enough to be called “fixed.” Seeds and plants in a garden are naturally in a state of perpetual change; they germinate, grow, bloom, become dormant, and eventually die.

This life cycle moves gradually, over days, weeks, and season to season, but the real barrier to copyright here is not temporal but essential. The essence of a garden is its vitality, not its fixedness. It may endure from season to season, but its nature is one of dynamic change'.

We are not suggesting that copyright attaches only to works that are static or fully permanent (no medium of expression lasts forever), or that artists who incorporate natural or living elements in their work can never claim copyright.

(This post was compiled by Nandita Saikia and was first published at Indian Copyright.)