Copyright Protection in Short-Lived Artworks: A Study on “Fixation” in Contemporary Floral Exhibitions

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