Saturday, June 10, 2023

So, Does Art With Natural Elements Get Copyright Protection?

Art Asia Pacific has just published a lengthy and detailed analysis of the current state of art vis-a-vis copyright through the as-yet-unsettled case of Chapman Kelley vs. Chicago Park District.

Readers may remember that the essence of the Kelley case consists of whether or not a sculptural installation in a public park, agreed upon by the City of Chicago, can be modified or distorted without the consent of the artist. Background on this case can be read here.

This issues has been put through the Illinois ringer, first with the lofty outcome that the sculptural installation, Wildflower Works, was not sufficiently “original” under US Copyright Law to grant it copyrightability, and thus obtained no moral rights protection under the 1990 Visual Artists Rights Act. This ruling was appealed to the Seventh Circuit Court of Appeals, and after a year and five months of deliberation, the Seventh Circuit effectively ruled that Chapman Kelley’s sculptural installation was not art, but rather a garden organized and planted by the act of nature and God. Once again, lacking the sine qua non of copyright, authorship and fixation, Kelley’s sculptural installation — along with a slew of artworks incorporating natural or organic materials — was gutted of moral rights protection.

Chin-Chin Yap of ArtAsia Pacific comments on both the authorship and fixation analysis of the Seventh Circuit. Regarding authorship:

These statements greatly undermine the domains of land art, bio-art and any other artwork involving the medium of nature. In particular, the Seventh Circuit’s simplistic conception of nature, as well as its failure to clearly articulate the parameters of human creativity in determining authorship, leaves a void of great uncertainty.

As for fixation,Yap poignantly reminds the Seventh Circuit that its role is not to define art or its essence.

The Seventh Circuit’s concern about the difficulty of fixing Kelley’s work is valid, but its analysis is misdirected. The opinion exclusively focuses on the quintessence of Wildflower Works as a “garden”: “the real barrier to copyright here is not temporal but essential. The essence of a garden is its vitality, not its fixedness.” Determining the essence of an artwork isn’t necessary to meet the fixation requirement; either the work is sufficiently fixed or it isn’t.

Yap’s pressing reminder is that current US Copyright Law does not ask whether the creative object under analysis is art or not — it simply asks whether the object is an original work of authorship fixed in any tangible medium of expression.

Yap concludes by reiterating a common concern among artists and certain legal scholars,

Kelley is one of a number of recent copyright decisions demonstrating the myriad areas where art is one step ahead of the law. We are fortunate to live in an era in which groundbreaking artistic developments happen daily, particularly in conjunction with science and technology. Yet it is precisely these innovative or avant-garde art practices that are most in need of supportive legal policies if they are to survive and contribute, meaningfully, in an increasingly commercial and litigious society.

You can read Yap’s essay here. Yap delves into bio-art, earthworks, and other art projects incorporating natural elements. [Disclaimer: I am quoted in this article in favor of Kelley’s position. I have also co-written an amicus brief in support of Chapman Kelley.]


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