Court: Not All Conceptual Art May Be Copyrighted

Breaking news. The Seventh Circuit Court of Appeals (“7th Circuit”) delivered their long-awaited Chapman Kelley vs. Chicago Park District decision today and ruled that Chapman Kelley’s art installation, consisting in part of flowers, “is neither ‘authored’ nor ‘fixed’ in the senses required for basic copyright, [thus] it cannot qualify for moral rights protection under [the Visual Artists Rights Act].”

The 7th Circuit also held “that individual commissioners cannot unilaterally bind the Park District’s Board to a contract without express Board approval,” thus reversing the lower-court’s decision that the Chicago Park District had breached its contract with Kelley. Once again, artists, get it in writing!

All-in-all, Kelley went o for 2. Not a good day for artists’ rights.

The 7th Circuit also differed with the First Circuit Court of Appeals on whether or not site-specific art should get VARA protection and on the 1st Circuit’s analysis of the “originality” requirement under US Copyright law. Lastly, the 7th Circuit also combed through the lower-court’s argument that Kelley’s site-specific art installation was a painting and a sculpture.

Although the Chicago Park District did not challenge the district court’s conclusion that Wildflower Works was a painting and a sculpture, the 7th Circuit analyzed why Kelley’s wildflower installation was neither.

To qualify for moral-rights protection under VARA, Wildflower Works cannot just be “pictorial” or “sculptural” in some aspect or effect, it must actually be a “painting” or a “sculpture.” Not metaphorically or by analogy, but really.

With two swift sentences, the 7th Circuit, through the prism of law, eviscerated land art and most painting post-1945. The 7th Circuit:

The district judge worried about taking “too literalist an approach to determining whether a given object qualifies as a sculpture or painting.” His concern was the “tension between the law and the evolution of ideas in modern or avant garde art; the former requires legislatures to taxonomize artistic cre- ations, whereas the latter is occupied with expanding the definition of what we accept to be art.” We agree with this important insight. But there’s a big difference between avoiding a literalistic approach and embracing one that is infinitely malleable. The judge appears to have come down too close to the latter extreme.

And the 7th Circuit concludes this brief analysis by ringing the fire-alarm:

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 consequences for this and other moral- rights claims.

Regarding the copyrightability of an art installation consisting of “flowers,” the 7th Circuit adds:

The real impediment to copyright here is not that Wildflower Works fails the test for originality (understood as “not copied” and “possessing some creativity”) but that a living garden lacks the kind of authorship and stable fixation normally required to support copyright.

And here’s the kiss of death to conceptual art:

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