Six months ago, on February 15, 2011, the United States Court of Appeals for the Seventh Circuit held that artist Chapman Kelley’s sculpture, Wildflower Works, was “neither ‘authored’ nor ‘fixed’ in the senses required for copyright.” Kelley v. Chi. Park Dist., 635 F.3d 290, 304 (7th Cir. 2011). It reasoned that “…gardens are planted and cultivated, not authored. A garden’s constituent elements are alive and inherently changeable, not fixed.”
In July, Kelley, represented by Kirkland & Ellis LLP, filed a certiorari petition with the Supreme Court of the United States requesting review of the Seventh Circuit’s decision which also denied Kelley’s sculpture in Grant Park protection under the Visual Artists Rights Act of 1990.
New-York based non-profit, Volunteer Lawyers for the Arts (VLA) disagreed with the decision concerning authorship and fixation of a work of art made from living materials because it automatically disqualified from copyright protection the use of living materials in art. On August 24, 2011, VLA, together with artists Molly Dilworth (a VLA artist in residence), Blane De St. Croix, and Thomas Lawson as well as in collaboration with the Arts & Business Council of Greater Boston, Inc., filed an amicus brief supporting Kelley’s petition.
In a newsletter, VLA explained that “Volunteer Lawyers for the Arts believes that the incorrect decision of the Seventh Circuit, if allowed to stand, will challenge and harm the ability to advise and educate artists in the area of copyright law, especially with regard to works of art incorporating living materials and other innovative materials. Whether a given artwork is granted copyright protection significantly impacts an individual artist’s livelihood and ability to contribute to the creative economy as a whole.”
A copy of the brief is available here.