Last fall I wrote about "another frustrating VARA decision," this time involving artist Chapman Kelley's Wildflower work in Chicago. Kelley has now filed his appellate brief with the Seventh Circuit, relying primarily on the grounds I described in my earlier post:
1. I said the District Court's holding that the work was not "original" enough to qualify for copyright protection was "just plain wrong" under the Supreme Court's Feist decision. The brief says "the District Court invoked a legal standard that bears no relationship to the extremely low threshold for copyright protection established by the Supreme Court in Feist" (p. 10).
2. I also said:
"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?"
Kelley's brief argues that the District Court was wrong to adopt "(without any analysis of its own) the First Circuit's fatally flawed conclusion regarding site-specific art" (p. 10):
"Site-specific art is just as vulnerable to acts of distortion, mutilation, or modification ... as non site-specific art .... A site-specific mural ... is just as vulnerable to mutilation as a painting hanging on the wall of a museum and VARA should and does protect both. ... [This case] highlights the extent of the error in the First Circuit's interpretation of VARA's application to site-specific art. The Park District did not remove and thereby conceptually damage [Kelley's work]. Instead, the Park District did something equivalent to painting a huge garish mustache on the Mona Lisa .... The Park District did not remove and relocate Chapman Kelley's art -- instead it distorted and mutilated the [work] in the exact location where it has been for decades ..." (pp. 19-20).