The Council for Artists' Rights recently issued this release:
Flawed 7th Circuit 2011 precedent in Visual Artists Rights Act case is ripe for U.S. Supreme Court review - U.S. arts community envision high court opening the door to protecting artists' rights
July 26, 2011
Dear ally of artists' rights:
On July 18, 2011, Dallas wildflower artist Chapman Kelley filed a petition with the Supreme Court of the United States requesting it to review the Seventh Circuit Court of Appeals (7th Circuit) February 2011 adverse decision to him in Kelley v Chicago Park District. The 7th Circuit had denied Kelley's public artwork the Chicago Wildflower Works (CWW) protection under the Visual Artists Rights Act of 1990 or VARA saying that the work failed to hurdle two aspects of copyright law, namely, authorship and fixation.
To our knowledge, never before in the history of U.S. copyright law has a professionally trained and exhibited artist, such as Kelley, had to defend a work of art against someone else's definition of what constitutes art.
In its February 2011 decision, the 7th Circuit's "en banc" panel of justices, Daniel Manion, Diane S. Sykes and John Daniel Tinder unanimously said that Kelley had not "authored" CWW and that its flowers were not sufficiently "fixed" to merit protection under federal copyright law. During the same time period, this original panel of justices denied the timely filing of a amicus curiae - friend of the court brief - prepared in support of Kelley by the laudable Volunteer Lawyers for the Arts - New York.
The 7th Circuit's decision about the true "author" of CWW leads one to believe that all those wildflower plant seeds, independently and collectively, created CWW. The time, money and effort expended on CWW was the seeds' own making, instead of Kelley. What a preposterous idea! The justices' notion of the lack of "fixity" of CWW, they ruled that flowers are "temporary" and therefore unable to be experienced or recorded in a meaningful way is just as contestable. The DNA of plants is so dependably fixed that plants furnish us obviously with much of our food, clothing and shelter material.
After flourishing in a Chicago lakeside park for 20 years, during the summer of 2004 the Chicago Park District destroyed Kelley's public artwork, the CWW. CWW was installed by him in 1984 as a noncommissioned work with official park district approval. At 66,000 sq. ft. its elements were organic and inorganic; many species of native Illinois plants configured in a double ellipse, framed in gravel and steel banding. CWW thrived solely on rainwater and used no insecticides or fertilizers. It was maintained for 20 years by an army of volunteers under Kelley's direct supervision. It garnered wide acclaim and was an environmental success story ahead of its time. Notable about CWW was that it bloomed sequentially, constantly, through three seasons. Imagine the environmental and monetary savings that resulted.
Artists whose work has been altered without their permission have the federal copyright statute, VARA, to potentially aid them in their fight for justice. We say potentially because obviously justices are reluctant to recognize Kelley's declaration and intention that his Wildflower Works was a work of art; Kelley initially entertained the notion that flowers could be used in art, publicly, since the mid-1970s. The Council for Artists' Rights is not a legal scholar but it appears that those in the legal community use a term to differentiate what artists say and intend versus what the court recognizes as final and settled; the word is dispositive. So although Kelley had consistently utilized flowers in his public artwork for nearly three decades, the court has stripped him of his identity and considered his statements, action and intention as not dispositive and legally without merit.
Will the Supreme Court of the United States parrot the 7th Circuit's adverse decision and carry on the tradition of being hostile to the arts community in the USA or will it instead agree with Kelley's (and other artists) decades-old declaration that flowers can be used in artwork?
Should the Supreme Court not take up the issue during its next term, when, if ever, will professional artists such as Kelley be allowed to control the material, image and therefore content of their creations, to call it art and have it protected by VARA?
If a court's approval is going to be necessary for an artist's choice of material and image, as implied by the 7th Circuit's holding, then it is the court who controls content. Having the power to do so is a flagrant violation of all artists' 1st Amendment right to free speech.