Rotting Flowers and VARA

From Donn Zaretsky and Ed Winkelman comes good news for artists. After the dismal MASS MoCA decision, the artist Chapman Kelley has won a dispute with the Chicago Park District in federal court, in a case that bears on what can be classified as a work of art under the law.

The piece at issue was Wildflower Works I by Kelley, a “living painting” created in 1984 and consisting of 66,000 square feet of flowers in Grant Park’s Daley Bicentennial Plaza (although Zaretsky believes they are weeds). The city cleared away half of the work in 2004 as part of the development for the nearby Millennium Park, and Kelley sued for $10 million in damages, plus legal fees, insisting that the piece was protected under the federal Visual Artists Rights Act (VARA), the same VARA that was crippled by Joe Thompson of MASS MoCA. Inherently, and until Thompson gets around to it, VARA requires that artists be notified 90 days before a change is made to their works.

In this case, the Chicago parks department claimed that a field of flowers is a constantly changing entity that cannot be copyrighted, and was therefore not subject to protection under VARA. At trial, Kelley pointed out on the stand that even traditional paintings change over the years, while appraiser Jane C.H. Jacob saw fit to quote Andy Warhol’s statement that “art is anything you can get away with.” Tell this to Buchel. According to the Chicago Sun-Times, Kelley’s lawyer Frank Hernandez claims that the ruling is the first time an artist using “alternative materials” has won a VARA suit. Judge David H. Coar has yet to determine damages in the case — but a plant-expert who spoke at the trial estimated the worth of the flowers in Wildflower Works I alone at $1.5 million. Incidentally, word is Kelley is planning an installation at MASS MoCAs gallery #5.