Artist Chapman Kelley launches federal appeal over Chicago Wildflower work

Challenges ruling that work is not original enough to be protected by US copyright law

By Martha Lufkin | Web only
Published online 4 Jun 09 (News)

Wildflowers

BOSTON. Artist Chapman Kelley has launched an appeal to overturn a federal court ruling that said his huge wildflower creation in a Chicago park was not original enough to be protected by US copyright law. The case has attracted wide attention because the rights in question are not those of traditional copyright protection, which prevents the copying of an artist’s work, but an artist’s “moral” right to prevent the destruction or distortion of his art. Under the Visual Artists Rights Act (Vara) of 1990, an artist may prevent the type of mutilation and destruction that Kelley says the City of Chicago wreaked on his 1.5-acre wildflower creation in 2004, reducing it by more than half and, he says, drastically altering it.

To qualify for artists’ rights protection under Vara, a work must be “original” enough to be eligible for basic US copyright protection. In September 2008, to the upset of many who support artists’ rights, a federal district court in Chicago said that Kelley’s Wildflower Works lacked this required originality. It is this ruling that Kelley is now seeking to overturn.

In a brief filed in the federal appeals court in Chicago in April, Kelley says that the US Supreme Court has established an “extremely low threshold for copyright protection”. Instead of applying this low standard, he says, the court wrongly asked whether Kelley “was the first person ever to conceive” of growing wildflowers in the shape of an ellipse, which is how the Chicago work was configured. Kelley argues that the correct originality test under US law that the court should have applied would have meant asking “whether Wildflower Works possessed some creative spark”, or “some minimal degree of creativity”.

Wildflower Works “clearly makes the grade” under this threshold, Kelley argues. The artist’s painted elliptical forms “are among his most sought after and collected pieces”, he says, and the wildflower work applied this “artistic vision” using “the ground as his substrate and flowers as his paint”. The flowers planted within the two football-field-size ellipses were arranged to Kelley’s schematic design so they would increase in colour intensity towards the centre; the wildflowers were chosen to be native to the Chicago area, and to “blossom sequentially through the Chicago seasons so that the exhibit would vary in appearance as the seasons progressed”. In total, he continues, the work was “as carefully controlled in design, time and colour transition as a pointillist painting”.

Instead, Kelley argues, the court applied “an inapplicable standard” of originality that would “likely render most art today not subject to protection” under copyright law. DaVinci, he says, “was not the first person to paint a picture of a woman on canvas”.

Kelley also says that the court was wrong in following a decision by the First Circuit federal appeals court in Massachusetts, which held that Vara does not protect “site-specific” art. He is asking the Chicago federal court to reject that decision, in which a sculptor, David Phillips, lost his plea to stop the removal of nautically themed works, which he said he created specifically for a Boston harbour-side park. The sculptor argued that moving the art would destroy it, by removing its context. The First Circuit decision cannot be used as a precedent to allow the outright destruction of art that happens to be located at a specific site, Kelley says.

Finally, Kelley says, the court was wrong in declining to award him more than one dollar for his loss of the art, on a theory that there was no evidence of how much it would have cost him to remove the flowers. The destroyed wildflowers had a value of $825,000, the artist says, and the city should pay him that. He says it was the city’s duty to prove otherwise, and that his “army of volunteers” would have happily removed the flowers at no cost if he had been given the chance.

The Chicago Park District disagrees with Kelley. It is arguing that his work is not protected under Vara, and that he should receive no compensation for the loss of the wildflowers.