The Un-Edenic State of Copyright

A bevy of blooms recently assumed center stage at the United States Court of Appeals for the Seventh Circuit in Chicago, Illinois. The art community was closely watching Chapman Kelley v. Chicago Park District (2011), a case with compelling repercussions for copyright law. In February 2011, the Seventh Circuit upheld the District Court’s ruling, albeit on different grounds, that the plaintiff Chapman Kelley’s artwork was ineligible for copyright. At the heart of the appellate decision is the lack of both “authorship” and “fixation” in Kelley’s “living garden.” The court’s muddled analysis of these elements has opened up a Pandora’s box of copyright issues for a vast spectrum of artwork incorporating natural elements.

In 1984, the painter Chapman Kelley created Wildflower Works (1984–2004), a site-specific artwork for Grant Park in downtown Chicago. The work comprised a pair of brilliantly hued flower beds in Kelley’s trademark ellipses sprawling over 66,000 square feet. Around 60 species of meticulously curated flowers bloomed and withered with the seasons, comprising a work that Kelley describes being “as carefully controlled in design, time and color transition as a pointillist painting.” In 2004, Chicago Park District officials unilaterally reshaped Wildflower Works into smaller, rectangular flower beds of approximately 30,000 square feet to make way for the development of Millennium Park. Kelley sued the Park District for violating his moral rights in his artwork under the Visual Artists Rights Act. The District Court found in favor of the Park District; upon appeal the Seventh Circuit affirmed the judgment, but on different grounds. A key element of the federal holding was that a garden such as Wildflower Works is neither sufficiently “authored” nor “fixed” for copyright purposes.

The Seventh Circuit’s analysis of authorship, the first copyright requirement, is rooted in its unshakable presumption that Wildflower Works is a horticultural arrangement rather than an artwork. “It is quintessentially a garden . . . Simply put, gardens are planted and cultivated, not authored.” The court expands on the role of nature by asserting that authorship should not owe a debt to “natural forces.” “Authors of copyrightable works must be human; works owing their form to the force of nature cannot be copyrighted.” On the relationship between nature and the human hand, the court elaborated: “To the extent that seeds or seedlings can be considered a ‘medium of expression,’ they originate in nature, and natural forces—not the intellect of the gardener—determine their form, growth and appearance . . . though the gardener who plants and tends it obviously assists.”

These statements greatly undermine the domains of land art, bio-art and any other artwork involving the medium of nature. In particular, the Seventh Circuit’s simplistic conception of nature, as well as its failure to clearly articulate the parameters of human creativity in determining authorship, leaves a void of great uncertainty. As Sergio Muñoz Sarmiento of the highly regarded art-law blog Clancco points out, the Kelley ruling “eviscerated land art.” By the court’s logic, artistic monuments such as Robert Smithson’s Spiral Jetty (1970) and Walter De Maria’s Double Negative (1970) might not qualify for authorship by dint of respectively being “quintessentially” a stone jetty and two large, deep incisions made in opposite sides of an existing canyon—essentially, products of natural forces “assisted” by
the artists’ intellects.

Consider also the entire genre of bio-art that utilizes cutting-edge biotechnologies such as genetic engineering and cloning to produce artwork from live tissue and organisms. While many bio-artworks might not qualify for copyright on other grounds such as fixation, the immense creativity and conceptual heft of their authorship is undeniable. In fact, many bio-artists aim to increase the public’s awareness of the complex relationships between nature and man—in essence, to illuminate precisely that simplistic divide promulgated by the Kelley court. For example, Sam Van Aken’s New Edens (2011), a recent hit at the Armory Show in New York, is a tree upon which branches of five different species are grafted so that it can simultaneously grow apricots, cherries, nectarines, peaches and plums. Van Aken’s work is intended as a comment on the pervasiveness of genetically engineered food and even landscapes in contemporary life. It is arguably “quintessentially” a tree; yet it is clearly not a “natural force” in the sense that Wildflower Works was—in fact, it is an explicitly unnatural, Frankenstein-esque confection owing a far greater debt to art and science than to nature.

The Kelley court’s focus on the “vitality” of Wildflower Works also left in limbo those artworks involving products of nature that have breathed their last. Logically, a dead animal or plant is as much a product of nature as its live counterparts. Where does this leave celebrated artworks such as Damien Hirst’s tiger shark suspended in a tank of formaldehyde, The Physical Impossibility of Death in the Mind of Someone Living (1991), and Wim Delvoye’s exquisitely taxidermied, tattooed pigs, which clearly “originate in nature” but are, like Kelley’s flowerbeds, significantly transformed by human creativity and effort? Post-Kelley, reasonable doubt could be cast upon the authorship of these works as well as others involving natural elements, dead or alive. A final question mark hovers over art that is part natural and part human-made, such as Joseph Beuys’ renowned 7,000 Oaks (1982–87), featuring 7,000 trees, each paired with a basalt stone column, planted throughout Kassel and New York City. Would the Kelley court find Beuys’ masterpiece “quintessentially a garden”?

Fixation is the second requirement for copyright under the US Copyright Law, which holds that an artwork must be “sufficiently permanent or stable to permit it to be perceived, reproduced or otherwise communicated for a period of more than transitory duration.” The Seventh Circuit’s concern about the difficulty of fixing Kelley’s work is valid, but its analysis is misdirected. The opinion exclusively focuses on the quintessence of Wildflower Works as a “garden”: “the real barrier to copyright here is not temporal but essential. The essence of a garden is its vitality, not its fixedness.” Determining the essence of an artwork isn’t necessary to meet the fixation requirement; either the work is sufficiently fixed or it isn’t. In addition, one wonders how the court might have reasoned had Kelley’s work been composed of desert cacti or Arctic lichen, both of which have far less variegated appearances than Wildflower Works’ seasonal blossoms. The court briefly contemplated Jeff Koons’ Puppy (1992)—a 40-foot-tall sculpture made of begonia plants—but again skirts the issue by concluding that Wildflower Works is a garden and Puppy isn’t.

A stronger conceptual approach would be to analogize Wildflower Works to art that possesses structural definition within which individual elements are subject to a predictable degree of random alteration: for example, Felix Gonzalez-Torres’ piles of candy from which audiences are invited to sample, or Piotr Uklanski’s Untitled (Dance Floor) (1996), where viewers’ footfalls determine the colors on a computer-controlled floor (although the latter is specifically copyrighted as electronic communication). This would lend greater clarity to the thresholds for permanence and stability required for fixation. The answers to the issues of fixation aren’t obvious, but courts should frame the attendant questions correctly.

Kelley is one of a number of recent copyright decisions demonstrating the myriad areas where art is one step ahead of the law. We are fortunate to live in an era in which groundbreaking artistic developments happen daily, particularly in conjunction with science and technology. Yet it is precisely these innovative or avant-garde art practices that are most in need of supportive legal policies if they are to survive and contribute, meaningfully, in an increasingly commercial and litigious society.