Undaunted by a February 2011 adverse ruling, Dallas artist will file in Supreme Court of the United States if rehearing petition is thwarted
Despite last month's Seventh Circuit Court of Appeals setback ruling, Dallas wildflower artist Chapman Kelley remains unshaken as he forges on in his six-year battle for artists' rights in the USA.
On February 15, 2011 appellate justices Daniel A. Manion, Diane S. Sykes, and John D. Tinder ruled that Kelley's 66,000 sq. ft. noncommissioned public artwork, Chicago Wildflower Works, did not merit personality or moral rights protection under the Visual Artists Rights Act of 1990 or under copyright law because Kelley lacked "authorship" and his CWW did not possess "fixation." The Chicago Park District destroyed CWW in 2004. Kelley said it was his most important piece.
On March 15, 2011, Kelley's attorneys filed a petition for rehearing "En Banc". The legal team consists of Micah E. Marcus, Gunnar B. Gundersen, Khaldoun Shobaki, and Diana Torres. If the petition gets enough 7th Circuit judicial votes, the rehearing en banc will involve an even greater number of 7th Circuit Appeals Court justices.
If necessary, Kelley is prepared to escalate this artists' rights dispute to the Supreme Court of the United States.
We are not legal scholars but it appears the three-judge panel of appellate justices decided that CWW was strictly a garden and not VARA-protected artwork. Gardens contain uncopyrightable living plants, which the Court said renders CWW ineligible for protection under the law. It said that Kelley could not claim "authorship" to a living plant; that the essence of flowers were not under the strict control of the artist. Their color, size and growth patterns were beyond Kelley's purview, so "authorship" did not rest with him.
A legal tension exists because CWW possesses some conflicting properties. It was ever-changing and had a sufficient "creative spark" to be classified as an original work of art, imparting the notion, the Court says, that art may be original but uncopyrightable. They also felt that CWW was not sufficiently "fixed" to be copyrightable. Unlike traditional materials used to make public art, flowers are changeable and lack longevity and durability and are incapable of achieving legal "fixation," the Court said.
The Court indirectly suggested that if Kelley had instead been a landscape designer, it would have been a slam dunk copyright infringement case. Landscape design normally includes records, drawings and diagrams of the designer's idea to provide a sufficient "copy" and evidence to support a claim of infringement. However, the Court failed to internalize that in the process of designing the CWW's 66,000 sq. ft., the artist knew well in advance, had carefully planned the plot's contents, and was aware of each plant's physical characteristics. Kelley was not creating hybrid species of wildflowers, he was not engineering or experimenting with new colors. In effect then, in his mind's eye, he knew exactly which palette of colors would appear in each and every section of his work. He executed and managed CWW by consciously designing it to his artistic vision. Either the Court was unaware of, or failed to inquire about Kelley's 48" x 60" watercolor, a professionally prepared scale model created of CWW, detailed blueprint of soil treatment, exact placement of flowers, construction of forms (steel and gravel), and each and every item was approved by the CPD.
It is remarkable that had the Court and its research team of law clerks Googled "sculpture," they would have discovered a stunning oversize book called "Living Sculpture" (2001) by noted British garden designer Paul Cooper. Almost all of its 176 pages have striking color plates of artwork from around the world which use living matter. The Court's lack of any mention of "Living Sculpture," or reference to land or environmental art in its 40-page opinion leads to the perception that it is ignoring overwhelming evidence pointing to the legitimate and acceptable use of nontraditional materials to create art.
The Court mentions Jeff Koons' sculpture creation "Puppy." That sculpture is featured on page 128 of "Living Sculpture." A caption accompanies the photo: "Jeff Koons created this 'outsize 'Puppy' in 1992 from 17,000 bedding plants, fixed to a steel and timber frame. In order to maintain the colorful surface the plants have to be replaced on a seasonal basis. When the plants are in full flower, as here, the mixture of vibrant colours turns the puppy's 'coat' into an abstract expressionist vision." Kelley's CWW consisted of plants which bloom seasonally and was "fixed" in a frame of steel banding and gravel. What more proof is necessary that Kelley's personality and moral rights should be protected under VARA?
In choosing the Koons "Puppy" sculpture as a springboard for discussing "acceptable" art, the Court attempted to wear the hat of art critic; it essentially blessed "Puppy" as a model for how art should be made, stopping short of actually endorsing it as "approved" art. But the Court falls short with that example because it is universal and common knowledge that each and every flower pot in "Puppy" is called a container garden. So the Court has now taken it upon itself to be the arbiter of what constitutes a "garden," dismissing a Kelley work as an uncopyrightable double-ellipse garden while a Koons "Puppy," consisting of literally hundreds of small container gardens, is original public art and potentially copyrightable. Could the Court and its law clerks have felt more comfortable with the figurative "Puppy" while snubbing the non-figurative CWW? Famous lawyer and art collector John Quinn must be spinning in his grave.
One analogy to public art having ever-changing properties which are "not fixed" is located in Chicago's Millennium Park, "Cloud Gate," otherwise known as the "Bean." Weighing in at 110 tons and 168 feet high, it has attracted widespread attention in the U.S. and abroad. Its creator, Anish Kapoor, designed the sculpture's highly polished surface to reflect and distort reality, be it the city's skyline or passersby. Obviously Kapoor cannot control the ephemeral reflected images which are an integral property of his work. Similarly, Kelley embraced the inevitable changes of CWW.
In 2004, the same year CWW was destroyed, the CPD itself commissioned, promoted and organized a program called Art in the Park. There was no shortage of artists willing to participate in the annual project. The park district printed brochures touting the program and advertised in on its website. Visual artists were invited to install their artwork throughout the park system; some used discarded television sets and filled them with living plant material calling it art. By the CPD identifying such work, including their flowers, as public art and then condemning the CWW, they are-- excuse the cliche--trying to have their cake and eat it too.
On the breach of contract count, the Court ruled in favor of the CPD. What is amazing about the contract decision is that Justice Diane S. Sykes, at oral argument on September 10, 2009 specifically probed the park district lawyer's position on contract law using precious court time to discuss theory. Official court transcripts show the park district lawyer herself agreed with Sykes on the implied contract idea but was at a loss which type of implied contract was applicable. Why would Sykes initiate discussion of it, engage a lawyer and then completely do an about face in the 40-page appellate ruling by not even referring to the oral argument discussion or further analyzing it? Was the oral argument a complete waste of everyone's time?
The Court called "astonishing" the CPD's refusal to challenge the CWW as a work of art. That "no contest" meant one thing: the CPD considered CWW to be public artwork. Instead of acknowledging CPD's concession, the Court took it upon itself to characterize it as a demure "omission." The so-called omission by the CPD was done intentionally; no respectable arts professional on the planet would give testimony about the CWW not being a work of art. That expert witness would have been laughed out of the profession! The Court, instead of exercising judicial restraint by recognizing the CPD's hands-down defeat admitting it was a work of art--and using it to bludgeon the CPD's argument--instead became judicial activist by giving the CPD a pass.
One important facet of CWW as art project is the availability of dated, copious photo documentation. Evidence supports that the CWW was in great shape through the summer of 2004. Despite such evidence, coupled with testimony from a majority opinion of four: an expert witness, Kelley, Slavin and Trujillo--the panel of three appellate judges allowed the use of a strongly pejorative term to creep into page two of its Opinion. It is our understanding that appellate cases are normally limited to the factual record stemming directly from the District Court.
The opening second paragraph of the Opinion which the 7th Circuit Appellate Court filed on February 15, 2011, contains a pivotal sentence describing the Chicago Wildflower Works which is MISLEADING. The prejudicial sentence is "But by 2004 Wildflower Works had deteriorated, (emphasis added) and the City's goals for Grant park had changed." The gratuitous use of "deteriorated," conveys a court as having a dismissive if not outright hostile attitude. How the trial court's description of the CWW morphed from a fairly neutral "ongoing issues with maintenance" to the appellate court's using "deteriorated," is shocking; it is a cause for concern, if not ALARM.
The unsubstantiated characterization "deteriorated" insults all CWW workers and supporters; it has been picked up by the press across the country and overseas, thus harming the integrity of many devoted and honorable volunteers and supporters, to say nothing of the fact that if the appeal judges were so predisposed from the beginning that CWW was a failure and fraud, no fair judgement of the pending case was possible.
Also, would any of us have even considered finding in favor of the plaintiff after reading a court document telling of CWW's (unproved) abandonment and (unsubstantiated) deterioration? What might the Board of the CWW, its respectable officers possibly have gained by a 20th Anniversary celebration if this alleged condition existed? Were they all insane? It is no wonder the appellate court went fishing outside of court testimony to invent new issues of "authorship and fixation" to support a foregone verdict which was conceived earlier at the trial level.
Photo documentation of the CWW is available and will be published; the public will know how they have been misled and how justice has been perverted. Did the Court do a hatchet job on Kelley despite photographic proof that CWW was in prime shape at the time of destruction in 2004?
The Court discounted Kelley's idea that CWW was a work of public art and the logical ramifications of calling it so. It said "That Kelley considered the garden to be both a painting and sculpture--only rendered in living material--is not dispositive." The dictionary defines dispositive as "providing final resolution, having control over an outcome." If professional artists cannot define their creations as works of art, using whatever medium, but must instead rely on justices to make that determination, will there soon be a very long line of artists filing VARA cases in order to have their work sanctioned by the Court?
Kelley has been a professional artist for most of his adult life. He deemed that his creations were works of art, why should it take over six years for the legal powers that be to catch up to his proclamation? Reached at his Dallas residence by phone, Chapman Kelley said, "Gardeners make gardens, painters make paintings. I happen to be a painter."
VARA was passed with the intention and hope that artists' personality and moral rights would take its rightful place in the USA joining other landmark legislation tied to women's rights, worker's rights, civil rights and people with disabilities rights among others.
It appears this three panel of justices went out of its way to strip VARA of its intention and by doing so deprive artists of their just place in society.
Other arts professionals and art lawyers unrelated to the case are taking an interest in this matter. On or about March 26, we hope to make available an ally's contemporaneous court filing.
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