The Art Newspaper

Chicago court denies artist's copyright appeal

Chapman Kelley will now seek an appeal with the US Supreme Court

By Martha Lufkin. Web only
Published online: 21 April 2011

Chapman's Wildflowers

NEW YORK. The Chicago federal appeals court that denied an artist’s rights claim for damage to a work made of living wildflowers has refused to rehear the case. On 19 April, the same three judges who threw out the case in February said they would not reconsider the claim by artist Chapman Kelley against the Chicago parks district for allegedly destroying his huge plant composition in a public park, Wildflower Works. Kelley's lawsuit cited violations of artist's rights protections under the US Visual Artists Rights Act (Vara), which is part of US copyright law.

The February ruling said that to be protected by Vara, a work must meet basic copyright tests which Wildflowers failed: the living wildflowers change over time, and are not “fixed” as copyright law requires. The February ruling noted that Vara protects only a few categories of works such as paintings and sculpture, and said that a garden of living plants met none of these definitions.

Reacting to the court's decision not to rehear the case, John Viramontes, of the Council for Artists Rights in Chicago, said that the February ruling “created an adverse precedent for US artists who use organic material to make their art,” impacting not just Kelley but also “the broader US arts community and the rights of painters and sculptors.” He told The Art Newspaper that Mr Kelley will now proceed to seek an appeal with the US Supreme Court.