The Seventh Circuit has issued its decision in the Chapman Kelley Wildflowers case. You can read it here. I won't have time to get to it until later, but in the meantime here is Sergio Muñoz Sarmiento, who says it's "not a good day for artists’ rights." For background on the dispute, start here.
UPDATE: Okay, I've read the decision. On the one hand, it certainly feels like a big blow to artists' rights ("not all conceptual art may be copyrighted"). But on the other hand, the actual holding may be quite narrow. But on the other other hand, there is language in the case, not essential to the holding, that is absolutely terrifying from an artists' rights perspective.
I think what the case holds, at bottom, is simply that gardens are not copyrightable:
"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 . . . 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 .... Of course, a human 'author' . . . determines the initial arrangement of the plants in a garden. This is not the kind of authorship required for copyright. . . . The essence of a garden is its vitality, not its fixedness. . . . [I]ts nature is one of dynamic change."
Having said that, the court immediately adds the following qualifiers:
"We are not suggesting that copyright attaches only to works that are static or fully permanent ... or that artists who incorporate natural or living elements in their work can never claim copyright."
And it expressly distinguishes Jeff Koons's "Puppy" from Kelley's work:
"In 'Puppy' the artist assembled a huge metal frame in the shape of a puppy and covered it with thousands of blooming flowers . . . . This may be sufficient fixation for copyright (we venture no opinion on the question), but Wildflower Works is quite different. It is quintessentially a garden; 'Puppy' is not. In short, Wildflower Works presents serious problems of authorship and fixation that these and other examples of conceptual or kinetic art do not" (emphases added).
So, again, the actual holding seems fairly limited (though certainly not helpful to artists). As I mentioned, however, there is some extremely scary language earlier in the decision. But before we get to that, let me briefly mention two (more positive) points:
1. In my initial posting on the case back in 2008, 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 Seventh Circuit says the same thing: the district court "misunderstands the originality requirement." I said: "Whatever one may think of Kelley's work, it's impossible to deny the spark of creativity that led to it." The Court here says: "No one argues that Wildflower Works was copied; it plainly possesses more than a little creative spark."
2. Also in that initial posting, I noted that the district court had followed the First Circuit in Phillips v. Pembroke in finding that VARA does not protect site-specific art at all, and I said 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. ... 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?" The Court here says, "though we need not decide [the] question," Phillips's "all-or-nothing approach to site-specific art may be unwarranted. . . . [S]ite-specific art -- like any other type of art -- can be defaced or damaged."
Now to the very scary part. Before getting to the specific holding in the case -- that works that are too garden-like are not eligible for copyright protection -- the Court first goes out of its way to point out that VARA applies only to "specific types of visual art." "[O]nly a select few categories of art" get VARA protection. Those categories are paintings, drawings, prints, sculptures, and photographs. And this does not include "sculptural works," three-dimensional works that are "'sculptural' in some aspect or effect." It has to actually be "a sculpture" -- "not metaphorically or by analogy, but really."
I say the Court went out of its way to make this point because the defendant in the case, the Chicago Park District, did not contest the district court's holding that the work is a sculpture. The Court calls it "an astonishing omission," and says:
"In short, this case raises serious questions about the meaning and application of VARA's definition of qualifying works of visual art -- questions with potentially decisive consequence for this and other moral rights claims. But the Park District has not challenged this aspect of the district court's decision, so we move directly to the question of copyrightability ...."
This is the part that, if followed by other courts, may well be, as Sergio puts it, "the kiss of death to conceptual art," as well as lots of other contemporary art-making that doesn't fit neatly into the "painting" or "sculpture" box. This just seems foolishly literalist to me (why would you exclude what a large percentage of our visual artists are doing from the orbit of the Visual Artists Rights Act?), but it's late, so let me stop here and pick it up again in the next few days.
