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:

Recognizing copyright in Wildflower Works presses too hard on these basic principles. We fully accept that the artistic community might classify Kelley’s garden as a work of postmodern conceptual art. We acknowledge as well that copyright’s prerequisites of authorship and fixation are broadly defined. But the law must have some limits; not all conceptual art may be copyrighted. In the ordinary copyright case, authorship and fixation are not contested; most works presented for copyright are unambiguously authored and unambiguously fixed. But this is not an ordinary case. A living garden like Wildflower Works is neither “authored” nor “fixed” in the senses required for copyright. [Italics mine]

However, some good news. The 7th Circuit did take issue with the 1st Circuit’s decision in Phillips v. Pembroke Real Estate (2006), where the 1st Circuit held that site-specific art is categorically excluded from VARA.

There are a couple of reasons to question this interpretation of VARA. First, the term “site-specific art” appears nowhere in the statute. Nothing in the definition of a “work of visual art” either explicitly or by implication excludes this form of art from moral-rights protection. Nor does application of the public-presentation excep- tion operate to eliminate every type of protection VARA grants to creators of site-specific art; the exception simply narrows the scope of the statute’s protection for all qualifying works of visual art. The exception basically provides a safe harbor for ordinary changes in the public presentation of VARA-qualifying artworks; the artist has no cause of action unless through gross negligence the work is modified, distorted, or destroyed in the process of changing its public presentation.

Second, Phillips’s all-or-nothing approach to site- specific art may be unwarranted. Site-specific art is not necessarily destroyed if moved; modified, yes, but not always utterly destroyed. Moreover, some of VARA’s protections are unaffected by the public-presentation exception. An artist’s right of integrity can be violated in ways that do not implicate the work’s location or manner of public presentation; site-specific art—like any other type of art—can be defaced and damaged in ways that do not relate to its public display. And the public-presentation exception does nothing to limit the right of attribution, which prevents an artist’s name from being misappropriated.

Then there is the matter of the building exception, which applies to works “incorporated in or made part of a building in such a way that removing the work from the building will cause the destruction, distortion, mutila- tion, or other modification of the work.” These works do not get moral-rights protection if the artist: (1) consented to the installation of his work in the building (if pre-VARA); or (2) executed a written acknowledgment that removal of the work may subject it to destruction, distortion, mutilation, or modification (if post-VARA). On its face this exception covers a particular kind of site- specific art. Its presence in the statute suggests that site- specific art is not categorically excluded from VARA.

There’s so much more to analyze in this decision, but these are my initial thoughts. This decision, which took almost a year-and-a-half to deliver, is sure to cause quite a bit of controversy and fury. More soon.

You can read the decision in pdf format here. Harvard’s Journal of Law and Technology also have a nice overview of the case here [and we’re mentioned!].

Tags: art, authorship, breach of contract, Chapman Kelley, Chicago Park District, fixation, installation art, living garden, Moral Rights, new genre, originality, post studio