By Atreya Mathur

Flowers have an impact on human happiness.[1] They tend to make things a little prettier or can even change the atmosphere to something more romantic. They cause excitement and they invoke emotion.[2] Perennially, designers, including those with Alexander McQueen and Dior, include florals and designs inspired by nature in their spring and summer collections. Copyright law is intended to encourage creativity and aims to protect something original, including textiel designs or even photographs of flowers or floral patterns.[3] It doesn’t seem too complicated, does it? But what about using flowers as a medium of creation? What about weaving dresses or making necklaces with live flowers as “wearable art”? Can creators copyright something that occurs naturally? Or art that is so short-lived? Can one use the scent of flowers and call it their own? Or how much of it do you have to transform to own something that never really belonged to you in the first place?

Several contemporary artists rebel against traditional art by creating art in the contemporary era with recycled, nontraditional, or natural materials.[4] In Kelley v. Chicago Park District (February 15, 2011 in the United States Court of Appeals, Seventh Circuit) “Wildflower Works” were planted: two enormous elliptical flower beds, featuring a variety of native wildflowers and edged with borders of gravel and steel.[5] Kelley’s creation was promoted as “living art,” and received critical and popular acclaim, but ultimately began deteriorating. The Park District then dramatically modified the garden, substantially reducing its size, reconfiguring the oval flower beds into rectangles, and changing some of the planting material. The district court ultimately held that Wildflower Works was both a painting and a sculpture but was insufficiently original to qualify for copyright. In another case, Kim Seng Company v. J&A Importers, Inc., (August 30, 2011 in the United States District Court, C.D. California,Western Division) the court held that a photograph of a bowl of Vietnamese food was not protectable under copyright laws.[6] The court addressed the food itself as a “food sculpture” and decided that “because food is perishable, it cannot be considered ‘fixed’ for copyright purposes.”[7] Often, such forms of conceptual art appear as an installation that may be underscoring modern art’s difference from traditional forms of art.[8] By using different material and incorporating natural elements to make an artistic statement, conceptual artists create works that could potentially fall outside the scope of federal copyright protection. This could be because of the changing or transitory nature of such artwork as it may fail to satisfy copyright’s “fixation” requirement.[9] Let’s look at the petals more closely.

Originality, Authorship and Fixation in Copyright

According to the Copyright Act, “copyright protection subsists in original works of authorship fixed in any tangible medium of expression.”[10] The three statutory requirements for copyright protection derived from this definition are therefore originality, authorship, and fixation.[11] It is also important to note that the Copyright Act protects “works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned.”[12]

The most common issue with contemporary art, such as short-lived or temporary works, is that it exists in a form that is improvisational, changing, and transitory, or decaying, and doesn’t satisfy copyright’s “fixation” requirement.[13] The Copyright Act defines a work as “‘fixed’ in a tangible medium of expression when its embodiment in a copy . . . by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”[14] Works that have not been fixed in a tangible medium of expression, works that have not been created by a human being, and works that are not eligible for copyright protection in the United States therein do not satisfy this requirement.

Williams v. Artic International (August 2, 1982 in the United States Court of Appeals for the Third Circuit) may be used to consider how courts have adapted the fixation requirement for works that contain changes.[15] There the court rejected the defendant’s argument that the audiovisual displays of a video game could not be copyrighted for lack of fixation. The plaintiff was a video game manufacturer selling the game, DEFENDER, and Defendant was a competitor selling electronic components and circuit board “kits” that contained a game virtually identical to DEFENDER, called DEFENSE COMMAND.Williams registered three copyrightable works relating to DEFENDER: one in the program; one for the audiovisual effects displayed during the game’s “attract mode,” which played the same sequence in a loop; and one for the audiovisual effects displayed during “play mode.” [16] The court stated that “the original audiovisual features of the game repeat themselves over and over,” and held that audiovisual works, even ones that change, may satisfy copyright’s fixation requirement “whenever the work is ‘sufficiently permanent or stable to permit it to be… reproduced, or otherwise communicated’ for more than a transitory period.” Williams held that the “images in plaintiff’s audio-visual game could be said to be ‘fixed’ in view of the fact that ‘new’ images generated or created by the video game each time attract mode or play mode was displayed were identical or substantially identical to the earlier ones.

Likewise, copyright law does not protect works that do not constitute copyrightable subject matter or works that do not contain a sufficient amount of original authorship, which may prove another issue for such artworks, especially if the material is naturally occurring and the artwork is subject to change because of nature.[17] The question which would then most likely arise would be who the author of the work really is, if the artwork was changed or modified due to natural factors rather than intentional human intervention.

However, the U.S. Copyright Office will register a visual artwork that includes uncopyrightable material if the work as a whole is sufficiently creative and original.[18] For a work to be original under copyright laws, it does not have to be new, novel, ingenious or aesthetically pleasing.[19] The threshold for the “modicum for creativity” is low. A complicated arrangement of lights in twelve buildings, involving an ambitious conception would meet the low threshold of the originality requirement.[20] Therefore, copyright protection would be granted to an artwork where there is originality, fixation and a modicum of creativity, regardless of how great the level of creativity is.[21]

In addition, the Visual Artists Rights Act of 1990 (VARA)[22] a part of U.S copyright legislation, specifically grants protection and exclusive rights to authors of “visual art.” VARA provides its protection only to artwork produced for exhibition, and existing in single copies or in limited editions of 200 or fewer copies, signed and numbered by the artist.[23] The U.S. Copyright Office defines visual art works as (i) pictorial, graphic, and sculptural works, and (ii) architectural works. An artistic feature of the design of a useful article” “is eligible for copyright protection only if the feature (1) can be perceived as a two-dimensional or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work – either on its own or fixed in some other tangible medium of expression – if it were imagined separately from the useful article into which it is incorporated.[24] Therefore, a work of artistic craftsmanship is a decorative or ornamental object that can be considered a “work of art,” even though it “might also serve a useful purpose,” if the utilitarian function can be separated from the artwork.[25] The U.S. Copyright Office will register visual art works that are embodied in a wide variety of two-dimensional and three-dimensional forms.[26] This list however is not exhaustive, and the Office will consider other forms of embodiment on a case-by-case basis.[27] If an artwork therein satisfies the criteria laid down in VARA it may receive additional protection as visual art.

Application of copyright laws to contemporary exhibitions

In Kelley, the court considered whether an artist (using perishable media) could seek redress under VARA for alleged modifications of his work. In the end, the U.S. Court of Appeals for the Seventh Circuit affirmed the district court’s decision that the flower bed could not be protected by copyright.[28] Although not raised on appeal, the Seventh Circuit also addressed whether a garden was appropriately classified as a “painting” or a “sculpture.” Ultimately, the court concluded that neither classification was appropriate because by using the specific nouns “painting” and “sculpture,” limits moral rights protection to actual paintings or sculptures, not works that are “pictoral” or “sculptural” in some aspect or effect.[29]

So, what about floral arrangements? It should be noted that “arrangements” may be copyright protected provided that they satisfy the prongs of originality, authorship and fixation as mentioned above. In Ansehl v. Puritan Pharmaceutical Co.,[30] plaintiff had composed a newspaper ad that featured a picture of an arrangement of eight toiletries. The defendant’s ad, almost an exact duplicate, included 10 toilet articles “arranged in much the same fashion as those shown in the plaintiff’s advertisement.” In holding that the defendant had infringed plaintiffs ad, the court stated that the defendants “could not appropriate the plaintiff’s advertisement by copying his arrangement of material, his illustrations and language, and thereby create substantially the same composition in substantially the same manner, without subjecting themselves to liability for infringement.” The threshold of creativity as understood even from this case is low. An arrangement does not necessarily have to be so complex to receive protection.

If this standard is applied to floral arrangements, satisfying the prong of originality for copyright protection may be relatively easier. However, fixation would require a more complicated analysis. Circling back to the cases of Kim Seng and Kelley, the court reasoned that “like a garden, which is ‘inherently changeable,’ a bowl of perishable food will, by its terms, ultimately perish.”[31] Through these cases, however, a contrast may be drawn in understanding the rules of fixation- that the fixation requirement does not require permanence, but it may only exist for some non-transitory period.[32] The key distinction between the work in Kim Seng and Kelley, is that the work in one was merely going to rot, over time, while the other was going to evolve; Kelley had purposely planted seeds that would create change across the seasons. It was the artistic intent of the creator that the work would change through the lifetime of the art. Kelley appears to have created a subcategory of works, ones that are “inherently changing.” This category is too broad, but it does give insight on the need for such work to be protected under copyright, despite the “fixation” concern, as the work continues to live in some form but evolves with the aid of nature.[33] The selection of seeds and resources by the artist also seems substantial enough for authorship, though the court in the case did not think so. At least in the Seventh Circuit, copyright protection is unlikely to be conferred on landscaping installations or other living-type works in which the work relies on forces of nature to embody the work.

The Weather Project (2003) by artist Olafur Eliassons is another example of similar artwork that changes or evolves.[34] It features representations of the sun and the sky, contained within the Turbine Hall in the Tate Modern in London. The work changes in connection with natural forces beyond the artist’s control, such as light and air quality, but it changes in ways that are predictable, and repetitive. Using mono frequency lights, projection foil, haze machines, mirror foil, the artist creates colors between light and dark, and the atmosphere grows more and less hazy throughout the day as the interior mist and fog gathers into cloud-like formations.[35] Under Kelley, the work would likely be considered “inherently changing” and be denied copyright protection on the grounds that it lacked fixation.[36] However, as per Williams, when a work’s changes occur within a framework that repeats “over and over,” it may qualify as “sufficiently permanent or stable” to be deemed fixed.[37]

For a recent example of a contemporary floral exhibition, Fleurs de Villes (2021), New York, uses flowers to create experiential events, and produced an entire series of dresses made from flowers. These dresses were exhibited for breast cancer awareness and used particular arrangements of flowers for each dress created. Tina Barkley, Co-founder of Fleurs de Villes stated that one of the unique things about the exhibit is that every show they put up is completely different. “No two shows are alike and that is because the floral art is unique every single time: from the materials available to the design and composition.”[38] “Each work is carefully planned and curated by the florist for our shows and when they are finished and on display for all to see, they are indeed art in their original form.”[39] Every piece is unique, tells a story and represents admirable qualities of women around the world. Apart from the intricate detailing and design of each dress, one could also smell the scent of the different flowers used. These dresses seem likely to fall under the definition of “visual art” and although they are dresses which serve a utilitarian function, they would likely be protected as sculptures. The utilitarian feature of the dress would not be protected but the arrangement of the flowers which could likely be separated from the useful features of a dress could fall under copyright protection.[40]

Photos taken at Fleurs de Villes, Hudson Yards, New York (2021) by Atreya Mathur

In this example, it does not seem like these dresses are a typical floral arrangement. Although the flowers may dry up and the art may change or “evolve”, it is likely that these floral dresses could be protected, as they satisfy the criteria for copyrightable subject matter if Kelley is reinterpreted by the courts. The artwork undeniably satisfies the low threshold required for creativity and originality. Authorship could also be attributed to the creators of the pieces. This seems different from the case laws discussed earlier concerning garden sculptures where the weather or environment could alter the artwork and challenge authorship. Here, there are no additional factors or authors that could affect the work. Further, fixation to a tangible medium of expression may also be satisfied as the dress is placed onto a mannequin and is therein sufficiently stable to be perceived by the senses for a period of time. Therefore, the exhibit is likely to be an original work of authorship, which enjoys a modicum of creativity and is affixed to a tangible medium of expression.

Further, as visual art, the artwork could be considered as a sculpture under VARA. The list in the Compendium[41] as mentioned earlier for what the Copyright Office might consider visual art is also not exhaustive. Although flowers are not expressly stated in the list, there is also nothing that prohibits them for being considered as visual art. The fact that each piece is unique also satisfies the criteria to be considered visual art under VARA, that the artwork is for exhibition only and exists in a single copy. Therefore, if the exhibit were to be considered on a case-to-case basis, it seems likely that it could fall under the ambit of a work of visual art as well. This may be both similar or different to Kelley depending on the interpretation of the changing art. Would the drying up of the flowers be more like the “rotting” food in Kim Seng or would it be “evolving” like in Kelley? But then again, neither of the artwork in the cases ultimately received copyright protection. Regardless, Fleurs de Villes, may have a higher chance at copyright protectability.

Conclusion

While through past case laws it may be understood that copyright is generally not granted to a naturally occurring effect, analyzing contemporary exhibits independently, may potentially result in a different outcome. A reinterpretation of the fixation requirement for contemporary art based on artistic intent may be helpful to provide the protection such artwork deserves and further the purpose of copyright protection. This type of artwork seems unique in the sense that it is vastly available to the public and encourages creativity with naturally occurring substances. If this work is not protected or given value by copyright, it could negatively affect the creation of similar forms of artwork which is enjoyed by the public. This does not mean that others cannot create similar artwork. Granting copyright protection to a single exhibit would mean the expression is protected, not the idea. Other creators would be free to design dresses made out of flowers or create from other natural materials. Granting copyright protection in this aspect would instead reinforce that this art falls under the ambit of protected art and likely be considered visual art by which VARA rights could be attributed. More than anything, it could promote creativity among artists to create such artwork knowing that the work is protected by law. Even if broad protection cannot be given to such installations, recognizing the work as art, and providing “thin” protection would still be a positive step forward to protect modern and contemporary artwork. Regardless of whether copyright protection is ultimately granted or not to such work, ephemeral art gives the viewer happiness and should be enjoyed for the time being.

Suggested Readings

Additional Cases

  • Baker v. Selden, 101 U.S. 99 (1879)
  • Bowen v. Yankee Network, Inc., 46 F. Supp. (D. Mass. 1942)
  • Gardenia Flowers, Inc. v. Joseph Markovits, Inc., 280 F. Supp. 776 (S.D.N.Y. 1968)
  • Leon v. Pacific Tel. & Tel. Co., 91 F.2d 484 (9th Cir. 1937)
  • Prestige Floral v. California Artificial Flower Co., 201 F. Supp. 287, 290 (S.D.N.Y. 1962)
  • Meltzer v. Zoller, 520 F. Supp. 847, 855 (D.N.J. 1981)
  • Murray v. Gelderman, 563 F.2d 773, 775 (5th Cir. 1977)
  • Reyher v. Children’s Television Workshop, 533 F.2d 87, 90 (2d Cir.)
  1. Haviland-Jones, Jeannette & Hale, Holly & Wilson, Patricia & Mcguire, Terry, An Environmental Approach to Positive Emotion: Flowers, Evolutionary Psychology (2005).
  2. Id.
  3. Const. art. I, § 8, cl. 8, See generally, Michael Madison, Beyond Creativity: Copyright as Knowledge Law, 12 VAND. J. ENT. & TECH. L. 817, 846 (2010).
  4. Zahr K. Said, Copyright’s Illogical Exclusion of Conceptual Art 39 COLUM. J.L. & ARTS 335 (2016).
  5. Kelley v. Chicago Park Dist. 635 F. 3d 290.
  6. Kim Seng Co. v. J & A Importers Inc., 810 F.Supp.2d 1046 (C.D.Cal. 2011).
  7. Id.
  8. Zahr K. Said, Copyright’s Illogical Exclusion of Conceptual Art 39 COLUM. J.L. & ARTS 335 (2016).
  9. Brandir Int’l v. Cascade Pac. Lumber Co., 834 F.2d 1142 (2d Cir. 1987).
  10. 17 U.S.C. § 101
  11. Id.
  12. Mazer v. Stein 347 U.S. 201.
  13. Douglas Lichtman, Copyright as a Rule of Evidence, 52 DUKE L.J. 683, 717 (2003).
  14. 17 U.S.C. § 101, Gregory S. Donat, Note, Fixing Fixation: A Copyright with Teeth for Improvisational Performers, 97 COLUM. L. REV. 1363 (1997)
  15. Williams v. Artic International 685 F.2d 870 (3d Cir. 1982).
  16. Id.
  17. Kelley v. Chicago Park Dist. 635 F. 3d 290.
  18. Joan Infarinato, Copyright Protection for Short-Lived Works of Art, 51 Fordham L. Rev. 90 (1982).
  19. Id.
  20. Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 345 (1991).
  21. Id.
  22. 17 U.S. Code § 106A
  23. Id.
  24. Star Athletica, LLC, v. Varsity Brands, Inc., 137 S. Ct. 1002.
  25. Id.
  26. The list includes canvas, paper, clay, stone, metal, collages, photographic film, digital files, holograms, and individual slides, “soft sculptures,” such as stuffed animals and puppets, edible materials, such as a molded chocolate rabbit or a frosting design on a cake, constructed buildings, architectural drawings, blueprints, or models depicting an architectural work.
  27. Compendium of U.S Copyright Office Practices, Third Edition. Available at https://www.copyright.gov/comp3/chap900/ch900-visual-art.pdf (last accessed Dec. 22, 2021).
  28. Kelley v. Chicago Park Dist. 635 F. 3d 290.
  29. Id.
  30. Ansehl v. Puritan Pharmaceutical Co. 61 F.2d 131 (8th Cir.), cert. denied, 287 U.S. 666 (1932).
  31. Zahr K. Said, Copyright’s Illogical Exclusion of Conceptual Art 39 COLUM. J.L. & ARTS 335 (2016).
  32. Id.
  33. Carrie Ryan Gallia, Note, To Fix or Not to Fix: Copyright’s Fixation Requirement and the Rights of Theatrical Collaborators, 92 MINN. L. REV. 231, 240 (2007).
  34. Olafur Eliasson, The Weather Project, TATE, https://www.tate.org.uk/whats-on/tate-modern/exhibition/unilever-series/unilever-series-olafur-eliasson-weather-project-0
  35. Id.
  36. Zahr K. Said, Copyright’s Illogical Exclusion of Conceptual Art 39 COLUM. J.L. & ARTS 335 (2016).
  37. Id.
  38. Tina Barkley, Co-founder of Fleurs de Villes in an email exchange with the Center for Art Law.
  39. Id.
  40. Mazer v. Stein 347 U.S. 201.
  41. Compendium of U.S Copyright Office Practices, Third Edition. Available at https://www.copyright.gov/comp3/chap900/ch900-visual-art.pdf (last accessed Dec. 22, 2021).

About the Author

Atreya Mathur (NYU Law, LL.M 2021) is the inaugural Judith Bresler Fellow at the Center for Art Law. She specializes in Competition, Innovation, and Information Laws, with a focus on copyright and art law. Atreya has a particular fondness for the art world, especially the controversial take of contemporary, appropriated, and derivative works, fascinated by the intellectual property and copyright implications of modern immersive art.