Can Living Art be Granted Copyright Protection?

March 10, 2011

Chapman Kelly is a well-known artist, who is famous for his landscape paintings and woodworks. In 1984, the Chicago Park District approached him to create an outdoor display of wildflowers. Kelly envisioned two large ellipses containing native wildflowers surrounded by gravel and steel. By 2004, Kelly’s creation was in disrepair and the city made arrangements to change and remove parts of his concept. Kelly brought suit against the Chicago Park District under the Visual Artist’s Rights Act of 1990 and breach of contract. He claimed that the garden was a sculpture or painting qualifying for a “work of visual art” under VARA and that reconfiguration was intentional mutilation of his work.

The 7th Circuit released its decision after almost a year and half, holding that Kelly’s conceptual piece does not qualify for copyright protection because the work is neither authored nor fixed. The 7th Circuit held that the law must have some limits when it comes to copyright, and although authorship and fixation are usually broadly defined for copyright protection in this circumstance they are not met. Therefore, the work does not fall under VARA’s protection because to qualify for moral rights under VARA the work must first satisfy the general copyright standards.

To Read More: See Chapman Kelly v. Chicago Park District