Wednesday, October 01, 2008


Another day, another frustrating VARA decision. This time, it was in artist Chapman Kelley's lawsuit against the Chicago Park District for removing his work from a local park. Story here. After a bench trial, the district court has ruled that VARA did not apply, for two reasons:

1. It held that the work was not "original" enough to qualify for protection under the Copyright Act:

"On the last point [i.e., originality], this Court agrees with the Park District. It is not clear what about the exhibit is original. Is it the elliptical design? The size? The use of native instead of non-native plants? ... Kelley leaves this Court to assume that he is the first person to ever conceive of and express an arrangement of growing wildflowers in ellipse-shaped enclosed area in the manner in which he created his exhibit. ... Without any evidence differentiating Kelley's work from, for example, the oval wildflower beds of Monticello, this Court can only find that [the work] is not subject to copyright protection. Therefore, it is not protected under VARA."

This is just wrong. As the Supreme Court noted in Feist Publications, Inc. v. Rural Telephone Service, Co., "the originality requirement is not particularly stringent." Just two things are required: "[1] that the work was independently created by the author (as opposed to copied from other works), and [2] and that it possesses at least some minimal degree of creativity." A work satisfies the first test ("independent creation") so long as it was not literally copied from an existing work. Kelley clearly passes this test: there isn't another wildflower work somewhere out there in the world which he merely duplicated. The second test ("creativity") sets an "extremely low" bar that Feist tells us is cleared "quite easily by "[t]he vast majority of works." It requires only that a work "possess some creative spark, 'no matter how crude, humble, or obvious it might be.'" Kelley certainly clears this bar as well, as the court's own decision demonstrates: in a later section, it discusses "the theoretical concepts that motivated Kelley's design and placement" of the work, how he "wanted a location that would create a contrast between the linearity of the urban grid, the rondure of the elliptical gardens, and the entropy of the wildflower beds," how, before installing the work, he "hired helicopters and airplanes so that he could survey Chicago from the air, and drove around the city extensively to find a place that would express his artistic vision," and how he designed the work to incorporate "pre-existing elements of the environment," including garage air vents (which I'm not sure but I believe are missing at Monticello). Whatever one may think of Kelley's work, it's impossible to deny the spark of creativity that led to it.

2. As an alternative holding, the court, without much analysis, followed the First Circuit in Phillips v. Pembroke in finding that VARA simply does not protect site-specific art. I discussed the Phillips decision here. The gist of that discussion was that, while a reasonable argument can be made that VARA doesn't prevent the removal of a site-specific work, there's no reason to completely exclude site-specific works from VARA's orbit. Kelley's work serves as a good example. Let's say that, instead of removal, someone had come in one night and destroyed large sections of the work, or splashed red paint all over it, or otherwise defaced it. Why should the work not be protected against those sorts of things? What does the work's site-specificity have to do with any of that?

One last point, for the don't-believe-everything-you-read file. An interim decision in the case about a year ago was widely reported as a victory for Kelley, though "the judge ha[d] yet to determine the damages." (See here, here, here, and even this guy.) Actually, that decision merely held that Kelley's work -- an arrangement of living plants -- could theoretically be protected by VARA. That "victory" now turns out to have been short-lived.