No. 08-3701 & 08-3712 ) Appeals from the United States District Court
) for the Northern District of Illinois,
Chapman Kelley, ) Eastern Division
)
Plaintiff - Appellant, ) David H. Coar, Judge
Cross-Appellee, )
v. ) District Court Case No. 04-CV-07715
)
Chicago Park District, )
) U.S.C.A. - 7th Circuit
Defendant - Appellee, ) RECEIVED
Cross-Appellant. )
) APR 1 3 2009 RJT
)
) GINO J. AGNELLO
CLERK
) -
The Court prefers that the disclosure statement be fied immediately following docketing; but, the
disclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response,
petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended
statement to reflect any material changes in the required information. The text of the statement must also
be included in front of the table of contents ofthe party's main brief. Counsel is required to complete
the entire statement and to use N/ A for any information that is not applicable if this form is used.
(1) The full name of every party that the attorney represents in the case (if the party is a
corporation, you must provide the corporate disclosure information required by Fed. R. App. P.
26.1 by completing item #3):
Chapman Kelley
(2) The names of all law firms whose partners or associates have appeared for the party in the
case (including proceedings in the district court or before an administrative agency) or are
expected to appear for the party in this court:
N/A
ii) list any publicly held company that owns 10% or more of the party's or amicus' stock:
N/A ~
Attorney's Signature: ~ L .~~ Date: April 13, 2009
ii
STATEMENT REGARDING ORAL ARGUMENT
Rule 34(f). The arguments of counsel at oral argument would advance the decisional process of
determining whether the District Court erred in not extending copyrght and V ARA protection to
Wildflower Works.
11
TABLE OF CONTENTS
Page
DISCLOSURE STATEMENT ..................................................................................................... i
ARGUMENT ................................................................................................................................12
II. THE DISTRICT COURT ERRD IN FINDING THAT VARA DOES NOT
PROTECT SITE-SPECIFIC ART.................................................................................16
CONCLUSION ............................................................................................................................25
iv
CIRCUIT RULE 30(D) STATEMENT .....................................................................................28
v
TABLE OF AUTHORITIES
Page
Cases
In re Trade-Mark Cases,
100 U.S. 82 (1879)............................................................................................................ 13
VI
Statutes
17U.S.C. § 102(a)........................................................................................................................13
17 U.S.C. § 1 06A............................................................................................................................ 1
17 U.S.C. § 106A(a)(I)................................................................................................................. 18
17 U.S.C. § 106A(a)(3)................................................................................................................. 18
28 U.S.C. § 1291............................................................................................................................. 1
28 U.S.C. § 1331.............................................................................................................................1
Other Authorities
Off of the Pedestal and Into the Fire: How Phillips Chips Away at the Rights of Site-
Specific Artists,
35 Fla. St. U. L. Rev. 167 (2007)...................................................................................... 18
U.S. CONST.
ar. I, § 8, cl. 8 ................................................................................................................... 13
Visual Arists Rights Act............. ................................. ............. .................... ................. ....... passim
VB
JURISDICTIONAL STATEMENT
The District Court had jurisdiction over this civil action under the Court's federal
28 U.S.C. § 1367.
The United States Court of Appeals for the Seventh Circuit has jurisdiction over this
appeal pursuant to 28 U.S.C. § 1291 as an appeal over a final decision of a district court. The
United States District Court for the Northern District of Ilinois, the Honorable David H. Coar
presiding, entered final judgment disposing of all claims on September 29,2008, which Plaintiff
now appeals. Mr. Kelley filed his notice of appeal on October 23, 2008.
2. Whether the District Court erred in finding that Wildflower Works is not subject to
protection under the Visual Arists Rights Act because the statute does not protect
site-specific art.
3. Whether the District Court erred in finding that the evidence presented by Chapman Kelley
was insufficient to establish damages from the City's breach of contract.
of his rights under the Visual Arists Rights Act (hereinafter "VARA"), 17 U.S.C. § 106A. On
November 30, 2004, Chapman Kelley brought action against the Chicago Park District in the
United States District Court for the Northern District of Ilinois on four counts. (PI's. Orig.
Compl., A0227-304.)! Counts I and II alleged that the Chicago Park District violated
"A" citations are to the Appendix to the Opening Brief of Appellant Chapman Kelley.
1
Mr. Kelley's rights under the Visual Artists Rights Act when it destroyed his Wildflower Works
installation. (Id. at irir 38-45, A0234.) Count III alleged that the Chicago Park District's
destruction of Mr. Kelley's Wildflower Works constituted an unlawful taking and that he was
entitled to just compensation. (Id. at irir 46-50, A0237.) Count iv alleged a breach of contract
claim because of the actions taken by the Chicago Park District. (Id. at irir 51-55, A0237-38.)
On September 29, 2008, the District Court ruled in favor of the Chicago Park District on
Counts i and II finding that despite meeting the definition of a work of visual art under V ARA,
Wildflower Works was not protected because it was not a copyrghtable original work of
authorship. (Kelley v. Chicago Park Dist., No. 04C07715, 2008 WL 4449886, Slip Opin., *5-6
(N.D. IlL. Sept. 29, 2008).) Additionally, the court held that Wildflower Works was a
"site-specific" work of visual art and that, as such, it was not subject to protection under V ARA.
(Id. at *6-7.) The court found in favor ofMr. Kelley on Count iV, ruling that an implied contract
was created between Chapman Kelley and the Chicago Park District, which the Park District
subsequently breached. (Id. at *7-9.) Despite finding that a breach of contract occurred, the
court held that Mr. Kelley was unable to prove his damages to a reasonable degree of certainty
and only awarded him the nominal sum of$1. (Id. at *9.) Count III was dismissed in a separate
order by the court. (Id. at *1.) Mr. Chapman Kelley now timely appeals the District Court's
represented in public and private collections in at least eighteen states and three foreign
countries. (A0001-11.) He has studied at both the Hugo D. Pohl Art School in San Antonio,
Texas and the Pennsylvania Academy of Fine Arts, where he was the two-time recipient of their
2
prestigious Wiliam Emlen Cresson European Traveling Scholarship. (A0002.) Throughout his
illustrious career, Mr. Kelley has been the recipient of numerous awards and honors for his
artwork, such as the Biannual Citation in Art, S.J. Wallace Truman Price, and the Childe Hassam
Purchase from the American Academy of Arts and Letters. (AOOOI-2.). He has been a guest
lecturer at numerous universities such as the School of the Museum of Fine Arts in Boston,
Massachusetts, Yale University's School of Art and Architecture, and the School of the Art
the use of bold ellipse-shaped outlines featuring portraits of landscapes and wildflowers.
(A0012-14.) Beginning in the late 1970s, Mr. Kelley began to expand his palette beyond the
canvas, experimenting with large, outdoor pieces of ar incorporating live flowers and plants.
(A0026-27.) In 1976, Mr. Kelley created his first outdoor wildflower installation at the Dallas-
Fort Worth International Airport. (Id.) He later created a second wildflower installation in 1982
at the Dallas Museum of Natural History. (Id.) Through these installations, Mr. Kelley sought to
create a striking new form of art that would incorporate both living and non-living materials, in
artistic vision of wildflowers and landscapes and physically transform his paintings into
3-dimensional creations.
In 1983, Mr. Kelley was invited by Bonnie and John Swearingen to Chicago for the
purpose of creating and installing one of his wildflower exhibits in the city. (AOI13; A0358.)
Intrigued by the idea, Mr. Kelley traveled to the city and began to extensively tour the area via
plane, helicopter, car, and foot searching for a possible location to install an ar exhibit that was
to be the culmination of his artistic vision. (AOI82-83.) He explored and investigated several
areas, such as Grant Park, Michigan Avenue, Dvorak Park, Oak Park, and Columbus Park before
3
finally settling on Daley Bicentennial Plaza in Grant Park. (A0184-85.) Having decided that
Chicago would be a fantastic location to display his work, concept and artistic vision, in
December of 1983, Mr. Kelley met with officials from the Chicago Park District and presented
his plan for a wildflower exhibit in Daley Bicentennial Plaza entitled Wildflower Works.
(AOI25-26; A0358.) At the presentation, Mr. Kelley explained to the members of the Park
District his vision and showed them examples from his installations in Dallas explaining to them
that he was experimenting with new mediums and moving beyond 2-dimensional paintings. (Id.)
Shortly after Mr. Kelley's presentation, the Chicago Park District enthusiastically approved of
the plan presented by Mr. Kelley, and subsequently granted Mr. Kelley a formal permit to begin
a permanent installation of Wildflower Works in Daley Bicentennial Plaza on June 19, 1984.
(Id.; A0029; A0229.) Under the terms of the permit issued and authorized by the Chicago Park
District, Mr. Kelley was to install and maintain Wildflower Works at his own expense. (Kelley
v. Chicago Park Dist., No. 04C07715, 2008 WL 4449886, Slip Opin., *1 (N.D. IlL. Sept. 29,
2008).) Mr. Kelley chose to finance the project himself, at a cost of approximately one millon
dollars, because he wanted to provide the city with the beauty of his art and educate others
provision of the permit gave the Park District the option of terminating the installation with a 90-
day notice to Mr. Kelley for the purpose of removing his exhibit. (Kelley, 2008 WL 4449886, at
*1.)
In June of 1984, once the permit was granted, Mr. Kelley began the installation of
Wildflower Works, conceived and executed as two elliptical shapes created by steel and gravel
edging surrounding two beds of wildflowers, covering approximately 1.5 acres. (A0139; A0020;
A0024-25; A0358.) In previous paintings, Mr. Kelley made frequent use of ellptical shapes and,
4
as such, he considered them his trademark symboL. (AOOI2-14.) As Mr. Kelley testified at trial,
use of the steel and gravel boundaries, he created these same figurative and non-figurative
elements in constructing Wildflower Works. (Id.) Another major component for Mr. Kelley in
creating Wildflower Works was to create a work of art that was not only aesthetically beautiful,
but was also environmentally conscious. (A0026.) Likewise, he wanted to incorporate the City
of Chicago in his art piece. (A0135.) As a result of this aristic outlook, he chose approximately
sixty species of wildflowers with extreme care, choosing wildflowers that were native to the
Chicago region. (AOI51.) One of the centerpieces of the exhibit was the Alium Cerum, the
Wild Nodding Onion, the namesake of Chicago. (A0135; A0024-25; AOI57.) His use of these
native wildflowers incorporated an environmental consciousness into the exhibit because they
didn't need water, fertilizer, or insecticides. (A0153.) They also featured a degree of self
sustainability. (!d.)
Using his own money, Mr. Kelley purchased between 200,000 and 380,000 wildflower
plugs at a cost of between $80,000 and $152,000. (A0138; A0231.) Each ellipse was then
carefully designed by Mr. Kelley to feature an outer band of wildflowers that would increase in
color intensity as one moved towards the center of the ellipse. (A0022.) The outer band of
wildflowers was designed by Mr. Kelley to be five feet in width, increasing to a second ten foot
inner band, and a third fifteen foot innermost band. (Id.) In the blossoming of the various
species of wildflowers with the carefully-planned exhibit, Mr. Kelley sought to create a painting
in three dimensional form. (AOI36.) The colors used in the northern ellipse were designed by
Mr. Kelley to evoke a sense of coolness while the southern ellipse would be warmer in character.
5
(A0022.) It was a very planned and controlled environment. In fact, before the first planting,
Mr. Kelley had the flowers aranged by color and location. (AOI54.) He cut out holes in the
cloth that was to be overlaid the Wildflower Works ground then he gave very specific
instructions regarding the type of wildflower to be planted in each hole. (ld.) As a result of this
planning, Wildflower Works featured a process known as "sequential blossoming" so that the
exhibit would continually change through the Chicago seasons. (A0136.) In the summer the
exhibit would resemble a painting, while in the winter it would take on more of a sculptural feeL.
(AOI49.) Wildflower Works was designed by Mr. Kelley to "be (as) carefully controlled in
design, time and color transition as a pointillist painting." (A0022.)
Chapman Kelley, along with a team of volunteers, initially planted the seeds and
wildflower plugs according to his designs and then carefully cultivated and pruned the plants
until his installation was changed by the Chicago Park District in 2004. (AOI54.) For several
months out of the year Mr. Kelley and his team of volunteers from all over the city of Chicago
donated their time to ensuring that Wildflower Works stayed within Mr. Kelley's original artistic
Wildflower Works garnered tremendous amounts of positive attention from both city and
state officials as well as the national media. (Kelley, 2008 WL 4449886, at *2.) Even before the
completion of Wildflower Works, the Chicago Park District issued a press release stating that
"( 0 )nce the ovals mature, the results wil be two breathtaking natural canvases of Kelley-
designed color patterns." (A0022.) The Superintendent of the Chicago Park District stated in a
1984 press release that the installation would "lend a dramatic impact on the overall aesthetics of
(A0020.) In a letter dated November of 1985, then Mayor of Chicago, Harold Washington,
6
expressed his gratitude to Chapman Kelley for providing the city with "a magnificent piece of
art." (A0028.) The Ilinois Senate passed a resolution praising Chapman Kelley's Wildflower
Works stating that Mr. Kelley had "transformed Chicago's Grant Park into a showcase for a new
form of living ar." (AOOI7-18.) It furthermore hailed Mr. Kelley as "a pioneer in the use of
natural materials" and held that "Grant Park (would) be the first park district in the United States
to display a live wildflower work of art of this scale." (Id.) The New York Times praised
Wildflower Works and Chapman Kelley in its article "Wildflowers as Art for a Chicago Park."
(A0026.) Similarly, the Christian Science Monitor covered Wildflower Works and Mr. Kelley in
its article "Arist Finds His Wildflowers are Growing on Chicago." (A0027.)
In addition to its widespread critical acclaim, Wildflower Works was extremely well
received by the general public and has received millions of visitors since it was first created in
1984. Once the exhibit was up and running, random people would stop Mr. Kelley on the street
to discuss it or even approach him at restaurants with gifts of gratitude. (AOI40.) He would
often lead tours of the exhibit himself, wanting not only to showcase the beauty of Wildflower
Works, but educate people about the nature of wildflowers and their relationship to the
environment. (Id.)
Because of the enormous success enjoyed by Wildflower Works, the Chicago Park
District annually extended Mr. Kelley's permit. Suddenly, on June 3, 1988, despite the
significant amount of praise and attention received by Wildflower Works, the Executive Vice
President of the Chicago Park District, Jesse Madison, decided to terminate Chapman Kelley's
permit for Wildflower Works. (A0031.) Because of the Park District's abrupt termination of his
permit, Mr. Kelley sued the Chicago Park District in the Northern District of Ilinois, No. 88 CV
6619. Chapman Kelley and the Chicago Park District subsequently reached a settlement to
7
extend the permit for Wildflower Works another year. (A0032; A0359.) As part of the new
permit, Mr. Kelley was to have full responsibility and control regarding any matters for the
aesthetic design and content of Wildflower Works. (Id.) While the new permit did not contain
the 90-day termination clause, it did state that Mr. Kelley could remove his installation if the
permit was not extended by September 1, 1989. (A0033.) Mr. Kelley's permit for Wildflower
Works continued to be offcially extended by the Chicago Park District until 1994. (A0037-46.)
After the last official permit was issued in 1993, Wildflower Works continued to remain in
existence and attract thousands of visitors, all without any actions or complaints from the Park
District. (A0131-32.) In fact, Mr. Kelley and his group of volunteers continued to maintain and
cultivate Wildflower Works for another ten years. (Id.) The permit process was always
instigated by the Chicago Park District. (Id; AOI76.) For ten whole years, Wildflower Works
continued to exist and attract positive attention without a written city permit.
In March of 2004, ten years after the last written city permit was issued, Chapman Kelley
attended a meeting with the President, Jonathan Dedmon, and Secretar, Maurine Slavin, of
Wildflower Works, Inc. and Chicago Park District Commissioner, Margaret Burroughs, to
discuss the installation. (Kelley, 2008 WL 4449886, at *2.) At this meeting, Mr. Dedmon
specifically asked Ms. Burroughs if they needed to apply for a new permit from the Park District,
to which Ms. Burroughs replied "You're stil there, aren't you? That's all you need to do." (Id.)
This statement from the Commissioner of the Chicago Park District was interpreted to mean that
no further action regarding a permit was required. (!d.) She did not ask for them to apply for a
new permit, she did not indicate that a new permit was needed, she did not complain about the
exhibit, nor did she tell the Wildflower Works representatives that the Park District was looking
to change the exhibit. (!d.) The whole point of the meeting, in fact, was to discuss plans for a
8
20th year anniversary celebration that was encouraged by Park Commissioner Burroughs.
9
a letter to the Chicago Park District requesting a meeting with them to discuss the mutilation and
destruction of Wildflower Works, however, he never received a response from the Park District.
(AOIIO; A0235.) Wildflower Works, as conceived by Chapman Kelley, ceased to exist as the
result of the Chicago Park Districts actions. What Chapman Kelley designed as a breathtaking
display of native, self-sustaining flowers arranged in his trademark elliptical format was changed
to blocks of meaningless contents. The native flowers which played a significant part of the
exhibit were replaced. by evergreen hedges and roses. The aesthetic and message of Wildflower
This case has profound implications for artists' rights. The District Court's conclusions
not only denies Chapman Kelley's redress for the mutilation of the work of art central to his
career, but also throws into jeopardy the rights of arists all across the United States. By
adopting its hyper-stringent standard of "originality" and adopting (without any analysis of its
own) the First Circuit's fatally flawed conclusion regarding site-specific art, the District Court
has unduly restricted and thrown into question the rights of arists everywhere. In essence, the
District Court's holdings threatens to unravel the very essence of the Berne Convention and
Congress's intent codifying artists' rights of attribution and integrty with V ARA.
In finding that the Wildflower Works was not subject to copyrght protection, the District
Court invoked a legal standard that bears no relationship to the extremely low threshold for
copyrght protection established by the Supreme Court in Feist. The District Court asked
whether Chapman Kelley was "the first person ever to conceive of and express an arrangement
The District Court asked the wrong question and got the wrong answer. Based on well
10
established law, the right question is whether Wildflower Works possessed some creative spark,
whether it possessed some minimal degree of creativity. Wildflower Works, which is the
culmination of Chapman Kelley's artistic vision, cultivated over decades of critically acclaimed
work, easily meets this standard. The standard proposed by the District Court, which would
require an originality of even the form of art to justify copyrght protection, was plain error and
Similarly, the District Court erred in adopting the First Circuit's conclusion that VARA
does not apply to site-specific ar. The First Circuit reasoned that because VARA's "public-
Congress must have intended for V ARA to offer no protection for site-specific art. This
reasoning is fatally flawed. First, that Congress allowed one type of damage to site-specific ar
(conceptual damage caused by relocation) does not imply that Congress intended to deny all
protection for site-specific art. Second, had Congress intended to exempt all of the site-specific
art that enriches our culture and beautifies our public spaces from VARA's protection, it would
have done so explicitly. Finally, the public-presentation exception itself makes clear that V ARA
otherwise protects site-specific art. The public-presentation exception, by its clear terms,
contemplates a scenaro in which an artist claims the destrction or mutilation of his or her
artwork by its mere relocation. Such a challenge would only come from an artist of site-specific
work. The public-presentation exception would not be necessary if Congress intended for
V ARA to have no application to site-specific art whatsoever. Finally, the evidence in this case
makes clear that the Wildflower Works is not site-specific to the extent that its relocation would
conceptually destroy it. Thus, the First Circuit's reasoning is not only fatally flawed, but is also
11
Lastly, the District Court erred in finding that Mr. Kelley failed to prove entitlement to
damages.2 The District Court found sufficient evidence to conclude the value of the flowers that
had been removed and destroyed by the Park District. Nonetheless, the District Court found that
it could not determine damages because there was no evidence of what Mr. Kelley's cost of
removal of the flowers would have been had he actually been afforded the opportunity to remove
his property. The evidence before the Court made the cost of removing the plants irrelevant:
Mr. Kelley had amassed a literal army of volunteers over the years that had tended and cared for
Wildflower Works over the past twenty-some years. These volunteers would have been happy to
help Mr. Kelley remove his artwork rather than see it destroyed. Moreover, in placing the
burden on Mr. Kelley to disprove costs he saved by virte of the Park District's breach, the
District Court got the law of Ilinois backwards. Upon a plaintiff presenting evidence that
establishes its total potential damages, it is black-letter law that the burden of proof is on the
defendant to show.what damages the plaintiff avoided as a result of the defendant's breach.
ARGUMENT
I. THE DISTRICT COURT ERRED BY FINDING THAT WILDFLOWER WORK
WAS NOT SO "ORIGINAL" AS TO BE COPYRIGHTABLE
While the District Court correctly ruled that Wildflower Works could be considered art-
either a painting or a sculpture-it erred in finding that it was not subject to copyrght protection.
Kelley v. Chicago Park Dist., No. 04C07715, 2008 WL 4449886, Slip. Opin., *5 (N.D. IlL.
Sept. 29, 2008). In that regard, the Court concluded that there was nothing "inherently original
about Wildflower Works." !d. The District Court was wrong. Chapman Kelley's Wildflower
2 Because the District Court determined that the Wildflower Works was not protected by V AR, it never reached
the issue of damages to which Kelley was entitled under V AR. In addition to concluding that V AR
protected the Wildflower Works and that the Park Distrct violated Kelley's rights under V AR, this Court
should remand to the Distrct Court for the determination of damages for violation of V AR.
12
Works is subject to copyrght protection under 17 U.S.C. § 102 because it clearly exceeds the
"extremely low" threshold of an original work of the artist as defined by the Supreme Court.
Feist Publns, Inc. v. Rural Tel. Servo Co., 499 U.S. 340, 345 (1991) (holding threshold for
creativity is "extremely low" and hence "the vast majority of works make the grade quite easily,
as they possess some creative spark."); see also JCW Invs., Inc. v. Novelty, Inc., 482 F.3d 910,
914 (7th Cir. 2007) (holding that copyrght protection simply requires only a minimal degree of
creativity); Pivot Point Intl, Inc. v. Charlene Prods., Inc., 372 F.3d 913, 929 (7th Cir. 2004)
("To merit protection from copying, a work need not be particularly novel or unusuaL")
"original works of authorship." 17 U.S.C. § 102(a). This originality requirement is rooted in the
Constitution which authorizes Congress "(tJo promote the progress of Science and useful Arts,
by securing for limited Times to Authors and Inventors the exclusive Right to their respective
Writings and Discoveries." U.S. CONST. art. I, § 8, cl. 8. While the Supreme Court has held that
the term writings can be liberally construed, they must be original and "founded in the creative
powers of the mind." In re Trade-Mark Cases, 100 U.S. 82,94 (1879); see also Burrow-Giles
Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884) (holding that originality is the cornerstone
and Burrow-Giles remains the touchstone of copyrght protection." Feist, 499 U.S. at 347.
copyrght protection has not been set high. To the contrary, "original" means no more than "the
work was independently created by the author. . . and that it possesses at least some minimal
degree of creativity." !d. at 345; JCW Invs., 482 F.3d at 914 (holding copyrght protection
requires minimal degree of creativity); Pivot Point, 372 F.3d at 929 ("To merit protection from
13
copying, a work need not be particularly novel or unusuaL") Indeed, as held by the Court in
Feist, the threshold for creativity is "extremely low" and hence "the (v)ast majority of works
make the grade quite easily, as they possess some creative spark." Feist, 499 U.S. at 345.
Here, Wildflower Works clearly makes the grade as "original" under this minimal
threshold. To that end, Runstadler v. MCM Ltd. P'ship, 768 F.Supp. 1292 (N.D. IlL. 1991), is
highly instructive. In Runstadler, the plaintiff created a sculpture of 39 clear glass rectangles
arranged in a spiral form, which the defendant claimed was not copyrghtable because it lacked
originality and creativity. 768 F.Supp. at 1295. The court, however, ruled that the sculpture
possessed the minimum level of creativity to qualify as original because "(t)he choice of
location, orientation, and dimensions of the glass panes, and the degree of arc of the spiral, show
far more than a trivial amount of intellectual labor and artistic expression." Id. at 1295-96; see
also Theotokatos v. Sara Lee Pers. Prods., 971 F.Supp. 332, 339 (N.D. Il. 1997). The defendant
additionally argued that the sculpture did not deserve copyrght protection because it was simply
a combination of uncopyrghtable shapes. Id. at 1295. The court held that "combinations of
standard shapes may possess the requisite creativity necessary for protection." !d.; see also
Roulo v. Russ Berrie & Co., 886 F.2d 931, 939 (7th Cir. 1989) ("While it is true that these
elements are not individually capable of protection . . . it is the unique combination of these
Similar to the sculpture in Runstadler, Chapman Kelley evinced a "far more than a trivial
amount of intellectual labor and artistic expression," in designing, creating, and maintaining
Wildflower Works. 768 F.Supp. at 1295-96. Wildflower Works was not born in 1984. Rather,
the artistic vision was the culmination of over a decade's worth of Mr. Kelley's paintings.
(A0026-27.) For decades, Mr. Kelley painted his vision of wildflowers encapsulated by elliptical
14
forms. (A0012-14.) These works are among his most sought after and collected pieces. In
creating Wildflower Works, Mr. Kelley chose to apply this artistic vision, using the ground as his
substrate and flowers as his paint. (A0136.) He designed and installed two enormous metal
ellipses (each the size of a football field) running north to south, with one below the other.
(A0139, A0020, A0024-25; A0358.) Within each ellipses, he carefully designed a schematic
that featured a five foot outer band of white wildflower, increasing in color intensity to a second
ten foot middle band, and finally settling on the brightest flowers in a centermost fifteen foot
band. (A0022.) Furthermore, he designed each ellipses to be surrounded by a three foot band of
metal and gravel edging. (AOI39.) Finally, Mr. Kelley did not choose his wildflowers
haphazardly, but rather with extreme caution and care. He specifically chose approximately
sixty varieties of wildflowers that not only were native to the Chicago region, but that would also
blossom sequentially through the Chicago seasons so that the exhibit would vary in appearance
as the seasons progressed. (A0022.) In sum, in Wildflower Works, Chapman Kelley created an
art exhibit that was as "carefully controlled in design, time, and color transition as a pointilist
painting." Id.
Accordingly, the District Court clearly erred in finding that Wildflower Works was not an
original work and therefore not subject to copyrght protection. Kelley, 2008 WL 4449886, at
*5. In paricular, the lower court mistakenly held that "(i)t is not clear what about the exhibit is
originaL. Is it the elliptical design? The size? The use of native instead of non-native plants?"
Id. at *6. The District Court further stated that "Kelley leaves this Court to assume that he is the
first person to ever conceive of and express an arrangement of growing wildflowers in ellipse-
shaped enclosed area." Id. As the Feist decision makes clear, however, "(0 )riginality does not
signify novelty; a work may be original even though it closely resembles other works so long as
15
the similarity is fortitous, not the result of copying." 499 U.S. at 345; see also Alfed Bell &
CO. V. Catalda Fine Arts, Inc., 191 F.2d 99, 102 (2d Cir. 1951) ("No large measure of novelty is
necessary."). Indeed, this Court can take judicial notice of the fact that DaVinci was not the first
person to paint a picture of a woman on a canvass, nor Michaelangelo the first to sculpt a man
out of stone, nor Stephen King the first to write a scary book for that matter. Yet, of course, any
court would be hard-pressed to find that such works of art are not entitled to copyrght
protection.
In sum, the District Court erred in finding that Wildflower Flower works was not subject
render most art today not subject to protection. Chapman Kelley's level of design, planing,
required by the Supreme Court under Feist. Wildflowers Works is subject to copyrght
II. THE DISTRICT COURT ERRD IN FINDING THAT VARA DOES NOT
PROTECT SITE-SPECIFIC ART
The District Court erred in concluding that VARA's protections were entirely
inapplicable to site-specific art. As discussed above, the court reached this conclusion by
adopting the First Circuit's interpretation ofVARA set-forth in Philips v. Pembroke Real Estate,
Inc., 459 F.3d 128, (1st Cir. 2006), the only decision published to date addressing the
relationship between V ARA and site-specific art. There, the First Circuit concluded that V ARA
does not protect site-specific art. Philips, 459 F.3d at 143. This conclusion misinterprets
16
In Philips, the artwork at issue consisted of approximately 27 sculptures, including
abstract bronze and granite pieces and realistic bronze sculptures of various aquatic creatures,
located throughout Boston Harbor's Eastport Park. The artist, David Phillips, was also
responsible for the design and installation of stone walls and granite stones inlaid into the park's
walkways. 459 F.3d at 130-31. Several years after its installation, the investment company
charged with managing the park, Pembroke, decided to remove Phillips' sculptures from the
park. Id. Philips sued to prevent removal of his artwork, invoking the protection ofVARA. Id.
The district court concluded, in relevant par, that V ARA protected Phillips' artwork, but that
under the "public-presentation" exception of VARA, Pembroke could remove Phillips' work
from the park consistent with V ARA, so long as Pembroke did not alter, modify, or destroy the
individual pieces comprising Phillips' artwork. Id. at 141. In affirming the district court's
ruling, the First Circuit refused to accept the lower court's logic, and in doing so, embraced a
radical interpretation of V ARA, concluding that V ARA offered no protection at all to site-
specific art.
The First Circuit's basis for this sweeping conclusion-that VARA offers no protection
at all to the site-specific ar found throughout the public spaces of the United States-is
contained in a single sentence of the Philips opinion: "V ARA does not protect site-specific art
and then permit its destruction by removal from its site pursuant to the statute's public-
presentation exception." !d. at 143. The court also found confirmation for its interpretation of
V ARA in the "inescapable" fact that "the concept of site specific art is never mentioned by
name" in VARA's legislative history. Id. at 143, In.12. In both regards, the First Circuit has
17
The fatal flaw in the First Circuit's interpretation of V ARA is the assumption that
remove (and thereby "conceptually" but not physically damage) site-specific art. This is simply
not the case. V ARA, which was enacted by Congress to give effect to the "moral rights"
recognized under the Berne Convention, grants artists the "moral rights" of integrty and
attribution. Rachel E. Nordby, Off of the Pedestal and Into the Fire: How Phillips Chips Away
at the Rights of Site-Specific Arists, 35 Fla. St. U. L. Rev. 167, 178-9 (2007). VARA protects
the moral right of integrty by preventing "any intentional distortion, mutilation, or other
modification of that work which would be prejudicial to (an Artists) honor or reputation" and
"any destruction of a work of recognized stature, and any intentional or grossly negligent
destruction of that work. . ." 17 U.S.C. § 106A(a)(3). VARA protects the moral right of
attribution by giving the artist the right "to claim authorship" of arwork and "to prevent the use
of his or her name as the author of any work of visual art which (the artist) did not create."
giving the artist the right to "prevent the use of his or her name as the author of a work of visual
ar in the event of a distortion, mutilation, or other modification of the work which would be
Even a cursory analysis of the protections offered by V ARA makes clear that V ARA
meaningfully protects site-specific art even if its public-presentation exception allows public art
to be removed from its location. The conceptual destruction of a site-specific work of art by its
relocation is far from the only conduct that can be prejudicial to an artist's honor or reputation.
For example, denying an artist the right to claim legitimate authorship of site-specific art could
be prejudicial to an artist's honor or reputation. Similarly, not allowing an arist to prevent the
18
use of his or her name for site-specific artwork that the artist did not create, or a site-specific
work of ar that has been distorted, mutilated, or otherwise modified can be prejudicial to an
artist's honor or reputation. Indeed, VARA meaningfully protects an artist's honor and
reputation by prohibiting such violation of the artist's right of attribution in connection with
The same is true of an artist's right of integrty: Site-specific art is just as vulnerable to
acts of distortion, mutilation, or modification which can prejudice an artist's right of integrty as
non site-specific art and which are prohibited by V ARA. A site-specific mural in a public space
is just as vulnerable to mutilation as a painting hanging on the wall of a museum and V ARA
should and does protect both. The only relevant difference between site-specific art and non-
site-specific art as far as V ARA is concerned is that site-specific art is vulnerable to a form of
destrction that is not a threat to non-site specific ar: conceptual damage due to relocation. The
fact that V ARA may not protect site-specific art from conceptual damage due to relocation
simply cannot reasonably be read to imply that Congress intended to deny site-specific art of all
protection altogether. Put another way, that V ARA permits one type of damage to site-specific
art does not suggest that Congress intended to permit any and all types of damage to the honor
and reputation of artists who create the site-specific art-art that, in the words of the First
Circuit, "unmistakably enrches our culture and the beauty of our public spaces." Philips, 459
F.3d at 143.
The case before this Court highlights the extent of the error in the First Circuit's
interpretation of VARA's application to site-specific art. The Park District did not remove and
thereby conceptually damage Wildflower Works. Instead, the Park District did something
equivalent to painting a huge garish mustache on the Mona Lisa-it took a piece of art which
19
contained at its hear a message about the beauty of native and ecologically-sustainable flowers,
and polluted it with non-native resource-intensive shrbbery and roses. The Park District did not
remove and relocate Chapman Kelley's art-instead it distorted and mutilated the Wildflower
Works in the exact location where it has been for decades, eviscerating Mr. Kelley's artistic
intent. However, under the First Circuit's interpretation of VARA, the Park District would be
free not only to mutilate the Wildflower Works (and any other site-specific ar, e.g. placing
Mickey Mouse ears on the "Bean" in Milennium Park) but also to keep claiming that the
mutilated ar was the product of Chapman Kelley. Congress intended no such thing. VARA's
public-presentation exception was not intended to rob site-specific art of all protection.
17 U.S.c. 106(A)(c)(2).
artist claims the destruction or mutilation of his or her artwork by its mere relocation. Such a
challenge would only come from an artist of site-specific work. If such art is not protected at all,
why include the exception? Contrary to the District Court's and the First Circuit's holding, the
clear inference from the inclusion of this "exception" is that Congress contemplated that V ARA
would otherwise protect site-specific art. See Kraft, Inc. v. Edgar, 138 Il1.2d 178, 189, 561
N.E.2d 656, 661 (1990) (holding "(a) statute should be construed so that no word or phrase is
20
Similarly, the fact that site-specific art was not mentioned by name in the V ARA or its
legislative history does not support the First Circuit's interpretation of VARA. Indeed, that
"inescapable fact" cuts the other way. Nowhere does the statute purport to limit the scope of its
protections based on an art-form or style. Had Congress intended to entirely exclude from
VARA's protection all of the site-specific art that enrches our culture and the nation's public
spaces, then Congress would have made such an exception explicit. Congress did not. The First
Circuit's cursory conclusion-that art for which complete protection cannot be provided is not
worthy of any protection at all-is directly contrary to the plain language of V ARA and,
In any event, not only is the logic of Philips fatally flawed, the final conclusion in
Philips-that art which can be constructively destroyed by mere relocation is not protected
under VARA-is irrelevant to the facts of the present case. In Philips, the artist argued and the
court focused on art that was site-specific to the extent that relocation constituted complete
destruction. Philips, 459 F.3d at 134. That is not the case before this Court. Mr. Kelley has not
argued that the Park District would have violated his rights under V ARA by merely removing or
relocating Wildflower Works. To the contrary, he complains that he did not have the notice or
opportnity to move it himself. (AOI74.) Indeed, the evidence adduced at trial confirmed that,
while Wildflower Works was intended to take account of its environment, it was not "site-
specific" to the extent that the mere removal of the project from its location in Grant Park would
result in the destruction of Chapman Kelley's artistic vision. This was the opinion of the artist
himself See A0220-21.
A. It would be a work that would not be destroyed. That is inseparable from its
location and support system.
21
Q. Is Wildflower Works in your opinion site specific art?
A. No.
In this regard, the District Court erred by relying upon Mr. Kelley's statements in his
deposition regarding site-specific aspects of his work. Kelley, 2008 WL 4449886 at *6-7.3 As
Mr. Kelley explained at trial, he did not mean site-specific in the sense that it was inseparable
Q. Do you remember testifying at your deposition that Wildflower Works was site
specific?
A. Site specific in the sense that if it was changed, it would not be a work of art.
Site specific in terms of whether it could be removed, they take up the grass.
They have giant machines that take up turf grass, roll it up and sell it and you
move it, and put it somewhere else.
A famous artist, whose work I showed at the gallery, took a meadow in Germany
and took it up and put it on the roof of a museum as a work of art, Newton
Harrson.
A. Well, I didn't understand what sense she was talking about portable. I just
explained that in one way it is, in another way, it is not.
In addition to Mr. Kelly's testimony about his own artwork, the testimony of
Mr. Kelley's expert confirmed that Wildflower Works was not "site-specific" as that term was
defined in Philips. In particular, Jane Jacobs testified that that works like Wildflower Works are
3
The District Court also relied on the steps that Mr. Chapman went through in selecting an appropriate location
for his work and his incorporation of the Monroe garage vents as "figurative elements in the 'painting. '"
Kelley, 2008 WL 4449886 at *7. Again, this reliance was misplaced and contradictory to the actual evidence
produced at tral. Indeed, Mr. Chapman actually testified that, originally, he preferred another location in Grant
Park. (AOI84.) Moreover, while he ultimately chose Grant Park, the park itself was not an essential element of
the piece, rather: "(He) was simply interested in making a work of art in a place that seemed very appropriate
and that had a very good possibility for (him) to make the sort of composition that (he) wanted to make."
(A0186; see also AOI84-85.) (explaining Mr. Kelley's willingness to move Wildflower Works, just not to other
"silk stocking" neighborhoods).
22
frequently broken down and moved to different locations without any destruction of the artist's
In sum, the First Circuit's ruling in Phillps is completely inapposite to the present facts.
While the question of whether V ARA protects against conceptual destruction of art by its mere
The Park District neither moved nor requested Chapman Kelley to remove his artwork.
Instead, the Park District distorted and mutilated Wildflower Works where it had sat for twenty
years. The Chicago Park District took Mr. Kelley's carefully designed ellipses and changed
them to rectilinear shapes. (A0208.) The Park District reduced the size of Mr. Kelley's
installation by more than half, from 66,000 square feet to under 30,000 square feet. (!d.)
Furthermore, the Park District removed the metal and gravel edging conceived and painstakingly
installed by Chapman Kelley. (!d.) Midland roses were added around Wildflower Works by the
Park District. (A0213.) What Chapman Kelley designed as a breathtaking display of native,
self-sustaining flowers arranged in his trademark elliptical format was changed to blocks of
meaningless contents. The native flowers which played a significant part of the exhibit were
replaced by evergreen hedges and roses. (Id.) The aesthetic and message of Wildflower Works
was forever altered by the Chicago Park District's actions. All done over Mr. Chapman's
objections while providing him no meaningful opportnity to protect his life's work. (A0174;
A0360.)
For all intent and purposes, the Park District drew a large, garish mustache on
Mr. Kelley's Mona Lisa. Such conduct is clearly not appropriate under the public-presentation
exception. This was a direct violation of Mr. Chapman's rights under V ARA, and he is entitled
23
to recover damages as a result thereof. The District Court's failure to arrve at this conclusion
The District Court erred in finding that it was unable to reasonably calculate damages
from the Park District's breach of contract. Mr. Kelley presented expert testimony showing that
the total value of all of the flowers in Wildflower Works as of the date of the Park District's
action had a then-existing value of $ 1.5 millon. Kelley, 2008 WL 4449886 at *9. The District
Court further found that approximately 55% of the flowers had been removed and destroyed. !d.
Nonetheless, the District Court found that it could not determine damages because there
was no evidence of what Mr. Kelley's cost of removal of the flowers would have been had he
actually been afforded the opportnity to remove his property. Id. That is, the Court found that
Mr. Kelley, without being able to show the costs he avoided as a result of the Park District's
breach, was not entitled to any damages. This was clear error.
As an initial matter, the only reasonable conclusion that could have been derived from the
evidence presented to the District Court is that Mr. Kelley would not have had any cost of
removal of his property from the park. Indeed, the evidence at trial demonstrated that Mr. Kelley
had amassed a literal army of volunteers that had tended and cared for Wildflower Works over
the past twenty-some years, for free. It is clear that if faced with the Park District's intentional
mutilation of the ar that they had spent their own blood, sweat, and tears to maintain for over
twenty years, more than a sufficient number of individuals would have volunteered to help
24
Moreover, though, in placing the burden on Mr. Kelley to disprove costs he saved by
virtue of the Park District's breach, the District Court got the law of Ilinois backwards. Upon a
plaintiff presenting evidence that establishes its total potential damages, it is black-letter law that
the burden of proof is on the defendant to show what damages the plaintiff could mitigate.
Washington Courte Condo. Assoc. v. Washington-Golf Corp., 267 Il1.App.3d 790, 822, 643
N.E.2d 199, 220 (1st Dist. 1994) (holding that "the party asserting non-mitigation of damages
bears the burden of proof as to the extent of non-mitigation") citing Pioneer Bank & Trust Co. v.
Seiko Sporting Goods, Co., 184 Il.App.3d 783, 790, 540 N.E.2d 808, 813 (1st Dist. 1989). It
was not Mr. Kelley's obligation to present evidence of his mitigated costs by virtue of the Park
District's breach. The burden of that evidence lay with the Park District. Washington Courte
In that regard, the Park District failed to provide even a scintila of evidence about what
costs Mr. Kelley was able to save as a result of the Park District's destruction of his property.
Other than asking Mr. Kelley and his expert of their thoughts, they had no information to
provide.
CONCLUSION
A society cannot be said to value art if it does not adequately protect the rights of its
artists. In concluding the Park District was free, as far as V ARA was concerned, to wilfully
mutilate the most important work of art of Chapman Kelley's long and distinguished career, the
District Court embraced an interpretation of V ARA that does not come close to adequately
protecting artists' rights. By adopting a hyper-stringent standard of copyrghtability and the First
Circuit's fatally flawed conclusion regarding site-specific art, the District Court has unduly
restricted and thrown into question the rights of artists everywhere. The District Court's
25
interpretation of V ARA does to V ARA what the Park District did to the Wildflower Works: it
removes from V ARA the essential rights that V ARA was clearly intended to protect and thereby
unravels the very essence of the Berne Convention and of V ARA itself.
Accordingly, Chapman Kelley respectfully requests that this Court enter an order:
(i) reversing the District Court's holding that Wildflower Works is not protected under VARA;
(ii) awarding Kelley damages of no less than $825,000 for his breach of contract claim; and
(iii) remanding this matter to the District Court for a trial on damages of the Park District's
violation ofMr. Kelley's rights under VARA.
~L.~~~
Alex L. Karan (ARDC No. 6272495)
Micah E. Marcus (ARDC No. 6257569)
Hector C. Bove (ARDC No. 6295946)
KIRKLAND & ELLIS LLP
300 North LaSalle
Chicago, Ilinois 60654
(312) 862-2000 (telephone)
(312) 862-2200 (facsimile)
26
CERTIFICATE OF COMPLIANCE
Pursuant to Circuit Rule 32(a)(7)(B), the undersigned counsel certifies that this brief
complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief
contains 8,255 words. Counsel further certifies that this brief complies with the typeface
requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P.
32(a)(6) because this briefhas been prepared in a proportionally spaced typeface using Microsoft
Word 2000 in Times New Roman type style and 12 point type in the body of the brief and 11
.~ (.~~--
Alex L. Karan (ARDC No. 6272495)
Micah E. Marcus (ARDC No. 6257569)
Hector C. Bove (ARDC No. 6295946)
KIRKLAND & ELLIS LLP
300 North LaSalle
Chicago, Ilinois 60654
(312) 862-2000 (telephone)
(312) 862-2200 (facsimile)
27
CIRCUIT RULE 30(D) STATEMENT
Pursuant to Circuit Rule 30(d), I hereby certify that all material required by Circuit Rule
30(a) and (b) are included in the Appendix. The material required by Circuit Rule 30(a) is
included in the Appendix filed by the Appellants. The material required by Circuit Rule 30(b) is
separately filed.
~L~&~
Alex L. Karan (ARDC No. 6272495)
Micah E. Marcus (ARDC No. 6257569)
Hector C. Bove (ARDC No. 6295946)
KILAND & ELLIS LLP
300 North LaSalle
Chicago, Ilinois 60654
(312) 862-2000 (telephone)
(312) 862-2200 (facsimile)
28
CIRCUIT RULE 3l(E) CERTIFICATION
Pursuant to Circuit Rule 31 (e), the undersigned counsel certifies that a digital version of
this brief and all of the appendix items that are available in non-scanned portable document
("PDF") format have been fied with the Court on CD-ROM, that the digital version is in PDF
format and was generated by printing to PDF from the original word processing file, and that the
'$t:Lj;~
Alex L. Karan (ARDC No. 6272495)
Micah E. Marcus (ARDC No. 6257569)
Hector C. Bove (ARDC No. 6295946)
KIRKLAND & ELLIS LLP
300 North LaSalle
Chicago, Ilinois 60654
(312) 862-2000 (telephone)
(312) 862-2200 (facsimile)
29
CERTIFICATE OF SERVICE
I, Micah Marcus, hereby certify that on April 13, 2009, I did cause a true and correct
copy of the foregoing Opening Brief of Appellant Chapman Kelley and Appendix, as well as a
digital version of this brief to be served by overnight mail upon the following:
Annette M. McGarr
McGarry & McGarry, LLC
120 N. LaSalle, #1100
Chicago, IL 60602
David Donnersberger
Nelson A. Brown, Jr.
Chicago Park District
Law Department
541, N. Fairbanks Court, 3W
~t..~--
Chicago, IL 60611
30
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 08-3701 & 08-3712 ) Appeals from the United States District Court
) for the Northern District of Illnois,
Chapman Kelley, ) Eastern Division
)
Plaintiff - Appellant, ) David H. Coar, Judg,e
Cross-Appellee, )
v. ) District Court Case No. 04-CV-07715
)
Chicago Park District, )
)
Defendant - Appellee, )
Cross-Appellant. )
)
)
)
)
)
Document
2
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Westlaw.
Slip Copy Page 1
Slip Copy, 2008 WL 4449886 (N.D.Ill.)
(Cite as: 2008 WL 4449886 (N.D.ID.))
Jeanne G. Toft, David R. Donnersberger, Nelson A. FN2. Made pursuant to Federal Rule of
Brown, Jr., Chicago Park District, Annette Michele Civil Procedure 52(a).
McGany, McGar & McGar, LLC, Chicao, IL,
for Defendant.
a. The parties
OA0001
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This installation is subject to a 90 day notice to reo Chicago Park, N.Y. Times, June 20, 1985, at 21;
move the planting upon written notice from the Lucia Mouat, Artist Finds His Wildflowers Are
General Superintendent. Growing On Chicago, Christian Science Monitor,
June 6, 1985, at 1. Kelley was also commended by
Pl.'s Ex. 12. Under the terms of the permit, Kelley varous state and local offcials for the installation.
was to install and maintain Wildflower Works at In a letter inviting the press to a preview of Wild-
his expense in exchange for the Park District's al~ flower Works in 1984, Chicago Park District Gen.
lowance for the exhibit on its propert. Id. Kelley eral Superintendent Edmund L. Kelly lauded Kelley
initially financed the project himself and purchased as "an internationally renowned arist ... a pioneer
between 200,000 and 380,000 wildflower plugs at a in the use of natual materials for 'living' ar (who)
cost of between $80,000 and $152,000.nI3 has achieved national prominence for his effort to
incorporate landscape in arstic creation."The
FN3. Although Kelley's complaint lists the Ilinois Senate recognized Wildflower Works as "a
higher figure as only $120,000, this Court new form of living art ... (in) the first park district
arves at the $152,000 figure based on in the United States to display a live wildflower
Kelley's testimony that he purchased work of ar of this scale" and commended Kelley
380,000 wildflower plugs at approximately for "his vast arstic contribution to Grant
$.40 apiece. Compi. ii 16; Trial Tr. voL. i, Park."PI.'s Ex. 4, Illnois Senate Resolution No. 420
129, Sept. 24,2007. (June 29, 1985).
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does not create an proprietary interest for Chica- 2007. The Court credits Slavin and Ded-
go Wildflower Works, Inc. (a non-profit corpora- man's testimony.
tion associated with the exhibit), and/or Mr.
Chapman Kelley in continuing to operate and
maintain the Wildflower Garden Display afer d. Reconfiguration of Wildflower Works
September 1, 1989.
*3 In May of 2004, ongoing issues with the main-
ld The 1988 penn it was renewed in 1989, 1990 tenance of Wildflower Works and the oncoming
and 1992. Pi"s Exs. 15, 17, 19; FPTO Stip." 33,34. opening of a new adjacent park space prompted the
Par District to conclude that changes would have
The last pennit renewal expired on September 30, to be made to Wildflower Works. Trial Tr. vol. 2,
1994. After its expiration, Kelley did not apply for 293. On June 10, 2004, Kelley met with persons
a pennit, and the Park District did not renew the frm the Park District who presented plans to re-
tempora pennit. FPTO Stip. ii 35-38. From Octo- duce the size and to change the shape and design of
ber 1, 1994 unti June 9, 2004, Kelley and his vo- Wildflower Works. FPTO Stip. ii 45. At the meet-
lunteers continued to maintain and install plants in ing, Arnold Radall, then Director of Development
Wildflower Works, and the Park Distrct did not re- and Planning for the Park District, told Kelley that
move the instalation. ld at ii 41.n March of 2004, the Park District intended to move forward with the
Kelley attended a lunch meeting with Wildflower reconfiguration plan but wanted Kelley's input Tri-
Works, Inc. President Jonathan Dedmon, Wild- al Tr. vol. 2, 307. Kelley did not approve of either
flower Works, Inc. Secretar Maurine Slavin, and the reconfigured new shape or the design, but did
Park District commissioner Margaret Burroughs. At not request to be given an opportnity to remove
the meeting, Dedmon asked Buroughs whether any of his wildflower plants from Wildflower
Kelley or Wildflower Works, Inc. needed to fie a Works. FPTO Stip. ii 47, 49.
pennit for the exhibit. Burroughs responded
something to the effect of, "You're stil there, aren't Despite Kelley's disapproval, the Park District went
you? Thats all you need to dO."FN4The others in- forward with the reconfiguration plans. During the
terpreted Burrughs' statement mean that no further summer of 2004, the Park Distrct reduced the wild-
action for a pennit was required. Trial Tr. vol. 1, 77. flower-planted spaces in Daley Bicentennial Plaz
from roughly 66,000 square feet to under 30,000
FN4. The paries dispute whether Bur- squar feet, and reconfigured the two ellpses as
roughs made this remark, but the weight of rectilnear shapes. The wildflower beds were edged
the evidence favors Kelley's position. Slav- with new evergreen hedges. FPTO Stip. ii 46.
in and Dedman testified, consistent with
each other, that Burroughs made the com-
ment. On the other hand, Burroughs testi- 2. CONCLUSIONS OF LAW
fied that she did not say anything to Kelley
regarding the pennit for Wildflower works, a. Jurisdiction and venue are both appropriate.
but could not remember other details from
the meeting, and could not remember that Jurisdiction over this action is appropriate under
she had signed an affdavit in the course of this Court's federal question jurisdiction, pursuant
this litigation regarding the maUer. Trial to 28 U.S.C. § 1331, and supplementa jurisdiction,
Tr. vol. 1, 76, Sept. 24, 2007; vol. 2, 276, pursuant to 28 U.S.C. § 1367. Venue is proper pur-
Sept. 25, 2007; vol. 3, 326-38, Sept. 26, suant to 28 U.S.c. § 1391(b).
OA0003
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Slip Copy, 2008 WL 4449886 (N.D.nl.)
(Cite as: 2008 WL 4449886 (N.D.II.))
Kelley's first two claims assert his rights under the (7th Cir.2006) (citing Am. Tobacco Co. v. Paller-
Visual Artists Rights Act ("V AR"), i 7 U.S.C. § son, 456 U.S. 63, 68, 102 S.Ct. J534, 71 .LEd.2d
106A. Under that statute, an "author of a work of 748 (1982). However, this Court is loath to tae too
visual art" is entitled to certain rights of attibution literalist an approach to detennining whether a giv-
en object qualifies as a sculpture or a painting.
(the right of the arist to be recognize by name as
the author of the work) and integrity (the right of There is a tension between the law and the evolu-
the arist to prevent distortion or mutilation of the tion of ideas in modem or avant garde ar; the
work), subject to exceptions and limitations. 17 fonner requires legislatures to taxonomize artistic
U.S.C. § 106A(a). creations, whereas the latter is occupied with ex-
panding the definition of what we accept to be ar.
To be protected by VAR, an object must (1) meet While Andy Warhol's suggestion that "ar is
the statutory definition of "a work of visual ar" and whatever you ca get away with" is too nihilstic
(2) be subject to copyright protection. 17 U.S.C. § for the law to accommodate, neither should V AR
101. The Court wil consider the two prongs of the be read so narowly as to protect only the most
analysis separately. revered work of the Old Masters. In other words,
the "plain and ordinar" meanings of words de-
scribing modem ar are stil slippery. With these
i. Wildflower Works is a "work of visual art." concern in mind, the Cour turns to the tak of de-
tennining whether the two ellptical gardens of Kel-
V AR defines a "work of visual ar" as, inter alia, ley's creation could be considered a painting or a
sculpture under V AR.
~1) a painting, drawing, print, or sculpture, existing
in a single copy, in a limited edition of 200 cop- The Wildflower Works exhibit consisted of ar-
ies or fewer that are signed and consecutively rangements of living plants within two ellptical
numbered by the author, or, in the case of a spaces. Those spaces were circumscribed by three
sculptue, in multiple. cast, carved, or fabricated feet of grvel and a band of steel edging. At trial,
sculptures of 200 or fewer that are consecutively Kelley likened the gravel and metal band in Wild-
numbered by the author and bea the signature or flower Works to the figurative area in his paint-
other identifying mark of the author... ings; indeed, many of Kelley's paintings depict ban-
ded ellptical fonns enclosing colorfl wildflowers.
17 U.S.C. § !OJ. Kelley advances two theories un- Pl.'s Ex. 2. The display required Kelley and his vo-
der which Wildflower Works could be a "work of lunteers to plant, cultivate and prune the wild-
visual ar": the exhibit is either a painting or a flowers in the gardens, activities typically asoci-
sculpture. ated with landscaping, not ar.
*4 Nowhere in the Copyright Act are the tenns Defendant's insistence that an artifact that changes
"painting" or "sculpture" defined. The Park Distrct over time, requires ongoing maintenance, or con-
cites legislative history to support its contention tains living matter cannot be considered a work of
that V AR only applies to a narrow range of ar- visual ar protected by V AR is misplaced. The
work, but a closer reading of the cited legislative mobiles of Alexander Calder are undoubtedly ar
history reveals only that the speaker was concerned even though the dynamic fonns they create are eph-
with differentiating visual art from films and other emeral by their nature. An example of ar that
kinds of intellectual propert. Def.'s Resp. Br. 6, changes or requires maintenance can be found less
May 31, 2007. Absent a statutory definition or a than half a mile away from Wildflower Works, in
clearly expressed legislative intent to the contrar, the Ar Institute of Chicago, alongside such works
words ar to be given their plain and ordinar
meaning. United States v. Lock, 466 F.3d 594, 598
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as Seurat's "Sunday Afternoon on the Island of La that Wildflower Works is a sculpture within the
Grande Jatte" and Van Gogh's "Bedoom at Aries." definition ofVARA.
Felix Gonzalez-Torres' "Untitled (portait of Ross
in L.A.)" consists of 175 pounds of individually-
wrapped multicolored candies laid on the floor of (2) Wildflawer Works as painting
the museum. Viewers are invited to tae candies
from the arork, which is intended to represent the Jacob also testified that she considered Wildflower
weight loss due to ilness of the arst's parer, who Works to be a painting, under her definition of a
died of causes related to AIS. The cady pile painting as "two dimensional representations,
dwindles each day; each morning, the candies are where a picture is executed by applying colored
replenished by museum staff. Although arguably no matter to varous surfaces as decoration, among
two viewers of "Untitled (portait of Ross in L.A.)" other things ...... Trial Tr. vol i, 18. She noted that
see the same work, there is no argument that its while Wildflower Works appeared as a garden frm
mutability precludes it from being described as a ground level, it was conceived as a painting to be
work of art. Finally, this Court wil not conclude viewed from a height, aiid that many paintings are,
that such an arrangement of living plants can never in fact, three dimensionaL. Id This Court need not
be a work of visual art per se; Jeff Koons' ''Puppy,'' pass on Jacob's strange assertion that three dimen-
a 43-foot flowering topiar, comes to mind. sional objects become two dimensional paintings
when viewed from airplanes, because a widely-used
dictionar offers a more accommodating definition
of "painting." According to Merriam-Webster, to
(I) Wildflower Works as sculpture
"paint" is "(1) to apply color, pigment, or paint to
*5 According to one common dictionar, a sculp- ... (2) to produce in lines and colors on a surface by
ture is "a work of ar created by the practice of applying pigments, (3) to depict by such lines and
Dictionar, ht-
shaping figures or designs in the round or in relief, colors, (4) to decorate, adorn, or variegate by ap-
as by chiseling marble, modeling clay, or casting in plying lines and colors."Merriam-Webstets Online
metal."The American Heritae Dictionar of the
English Laguage (4th Ed.2004). Another diction- tp://ww.m-w.com/dictionar/paint(l) (last visited
ar defines a sculpture as the "(1) action or ar of
September 25, 2008). An exhibit that corrals the
processing (as by carving, modeling, or welding) variegation of wildflowers in bloom into pleasing
plastic or hard materials into works of ar: (2) work oval swatches, as Wildflower Works did, could cer-
produced by sculpture, (or)(3) a three-dimensional tainty fit within some of the above definitions of a
work of art (as a statue)." Merriam-Webstets On- painting. Accordingly, Wildflower Works could be
line Dictionar, ht- considered either a painting or a sculpture under
VAR.
tp://ww.m-w.comldictionar/sculptue (last vis-
ited September 25, 2008). Kelley's expert witness
Jane Jacob, a fine ar advisor and appmiser and a
professor of art history at New York University, ii. Wildflower Works was not copyrightable.
testified that "since World War IT and since the
1960s in particular, sculpture (has been) defined as An object is subject to copyright protection if it is an
any non-two dimensional art form ... including en-
vironmenta ar and some conceptual art ." Tnal Tr. Jfiginal (work) of authorship fixed in any tangible
voL. i, 15-16. At a minimum, the manipulation of medium of expression, now .known or later de-
the flowers, metal, and gravel into an ellptical veloped, from which (it) can be perceived, repro
shape fits within the broadest of the definitions of duced, or otherwise communicated, either dir-
sculpture cited above. Accordingly, this Court finds ectly or with the aid of a machine or device.
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Slip Copy
Slip Copy, 2008 WL 4449886 (N.D.III.)
(Cite as: 2008 WL 4449886 (N.D.II.))
*6 17 U .S.c. § 102. "Works of authorship include not subject to copyright protection. Therefore, it is
... (5) pictorial, graphic, and sculptural works
not protected under V ARA.
...."IdExcluded from copyright protection is "any
idea, procedure, process, system, method of opera- FN5. If indeed the only original element of
tion, concept, principle, or discovery, regardless of Kelley's exhibit was this "vegetative man-
the form in which it is described, explained, ilus- agement system," then Wildflower Works
trted, or embodied in such work." 17 U.S.C. § would be excluded from copyright protec-
I 02(b) (emphasis added). tion under 17 U.S.C. § I02(b).
OA0006
from its location necessarly destroys that work of They were considered because I wouldn't have
art."459 F.3d l29.Instead, the First Circuit con- done it there if I couldn't have, you know, in-
cluded that V AR does not protect site-speCific ar cluded them as part of it... So they became, in
at alL. essence, I guess, a certin element.
*7 Wildflower Works is clearly a site-specific ar- Trial Tr. voL. 1, 123. Therefore, Wildflower Works
work. Kelley admitted at his deposition that it was was site-specific and not protected under V AR.
site-specific. Trial Tr. voL. 3, 383. Ke\ley's expert
Jane Jacob stated unequivocally that Wildflower Because the Court concludes that Wildflower
Works was site-specific. Trial Tr. voL. 1, 34 ("Q: Works is both site-specific and not copyrightable
Mr. Kelley's work is site-speCific, isn't it? A: Yes, it and therefore not protected under V ARA, it needs
is. It is site-specific, yes."). In addition, the theoret- not reach the Park District's additional arguments
ical concepts that motivated Kelley's design and that Kelley waived his V ARA rights or that Wild-
placement of Wildflower Works required that it be flower Works is a work installed on a building be-
placed in Grant Park; Kelley wanted a location that fore 1991 and therefore not subject to V AR pro-
would create a contrast between the linearty of the tection.
urban grid, the rondure of the ellptical gardens, and
the entropy of the wildflower beds. FPTO Stip. 25;
Trial Tr. voL. 1, 91-93; voL. 2, 251. Before choosing c. Commissioner Burroughs' statement created
the location, Kelley hired helicopters and airplanes an implied contract, which was breached by the
so that he could survey Chicago from the air, and Park District.
drove around the city extensively to find a place
that would be express his aristic vision. Trial Tr. In his final claim, Kelley contends that the Park
voL. 2, 247-48. In Grat Park, the gardens were set District breached a contract between the paries by
against a backdrop of Chicago's skyscrapers and
failing to provide reasonable notice to Kelley re-
garding the reconfiguration of Wildflower Works.
grd system. Prior to the first lawsuit, the Park Dis-
trict and Ke\ley discussed relocating the exhibit, but The final tempora permit expired in 1994, so this
Ke\ley rejected all other locales as incompatible Court presumes that Kelley advances some sort of
with his artistic vision for the exhibit. Trial Tr. voL. implied contract theory based on prior course of
2,251-52. dealing to support this claim.
Finally, Wildflower Works incorporated pre- *8 In a contrct implied in fact, a contractual duty
existing elements of the environment into its dis- is imposed by reason of a promissory expression in-
play. It is situated on the roof of the East Monroe ferred from facts, circumstaces and expressions by
Street Parking Garage. Air vents from the garge the promisor showing an intent to be bound. In re
were incorprated into the arork: each ellpse had Estate oj Milhorn, 122 IlApp.3d 688, 78 IIl.ec.
three large square vents spaced evenly along its ma- 241,461 N.E.2d 1075 (I1J.App.Ct.984). Such con-
jor axis, which worked as figurative elements in the trct may be proved by circumstaces showing that
"painting" just as the band of gravel and steel the paries intended to contrct and by the general
around the ellpses did. Kelley testified that he de- course of dealing between them. However, there
signed Wildflower Works around those vents: can be no promise implied where the relation
between the paries excludes the inference that they
were dealing on a footing of contract. South Sub-
Q: When you did Wildflower Works, when you did
that, did you design it to include those air duct? urban SaJeway Lines, Inc. v. Regional Transporta-
tion Authority. 166 ni.App.3d 361, 116 IIl.ec.
Kelley: Well, of course, yes, they were par of it. 790, 519 N.E.2d 1005, 1008 (I1I.App.Ct.988). Un-
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der Ilinois law, "no contract or liabilty may be im- fails; if so, Kelley's claim for damages un-
plied against a municipal corporation where there der the contract claim stil fails for reasons
has been a failure to comply with a statute or ordin- discussed below.
ance prescribing the method by which an offcer or
agent can bind such corporation by contract." Id, Even though the post-1988 penn its did not include
116 Il.Dec. 790, 519 N.E.2d at 1007 (citation omit- the ninety day notice provision, they did provide
ted). The City of Chicago's power to contrct is Kelley the right to remove his wildflowers upon the
limited by law; only "corporate authorities" can ex- expiration of the pennits. Accordingly, under the
ecute contracts that bind the municipal entity unless implied pennit extension, the Park District should
there has been an express delegation of that power. have given Kelley reasonable time to remove his
Chicago Food Mgmt. v. City of Chicago. 163 wildflowers. Based on the tenns of the first pennit,
riJ.App.3d 638, 114 Il.Dec. 725, 516 N.E.2d 880 this Court finds that ninety days would have been a
(lII.App.Ct.1987); 65 rLCS 5/2-2- 12. reasonable time for the removal of those plants. Be-
cause the Park District did not provide the requisite
The Park District argues that under 70 IlL. Compo ninety days, it is in breach of the implied contract.
Stat. 150517.01, which delineates the powers of the
Park Distrct, only the Board of Commissioners of
the Park District (rather than the commissioners in- i. Kelley did not prove his damages to a reason-
dividually) has the power to issue a renewal pennit able degree of certinty.
involving more than a limited, short-tenn use of
Park District propert. But the statute actually *9 Although he is entitled to damages under Count
provides that "(tJhe commissioners of such district IV of the complaint, Kelley failed to meet his bur-
constitute the corporate authorities thereof, and den of proving the amount of his damages to a reas-
have full power to manage and control all the of- onable degree of certinty. CSC Holdings, Inc. v.
ficers and propert of the district, and all parks, Redisi, 309 F.3d 988, 995 (7th Cir.2002) ("While
driveways, boulevards and parkways maintained by we have no problem with the basic premise that un-
such district or committed to its care and custody" certainties as to damages should be resolved against
(emphasis added). From the language of the statute the wrongdoer, this does not give an injured par
it is possible that because Buroughs was a com. carte blanche to provide wild guesses at its dam-
missioner, she was a "corporate authority" capable ages. A reasonable estimate ... must be grounded in
of binding the Park Distict in contrat and she some record evidence, not numbers pulled frm
could do so orally.~"N('See Chicago Food Mgmt. v. thin air.") (citations omitted). When a par estab-
City of Chicago, 163 I1I.App.3d 638, 114 IIl.ec. lishes that it is entitled to damages but fails to
725, 516 N.E.2d 880. An implied agreement to ex- prove the amount of those damages to a reasonable
tend the date of the temporar pennit was therefore degree of certinty, a trial court may award the
created when Burroughs told Kelley, ''You're stil plaintiff only nominal damages. Fideliy Ins. Agen-
there, aren't you? That's all you need to do" when cies v. Citzens Cas. Co ql'New York, 194 F.2d 43,
queried about the state of the pennit for Wildflower 47 (7th Cir.J 952). Kelley has not sought nominal
Works. damages.
FN6. Notwithstanding the statute, the re- Kelley seeks damages in "compensation for the ma-
cord is unclear as to whether a Parks Dis- terials removed by the Park District."Compl. , 54.
trict commissioner indeed has the power to The measure of damages would therefore be the
act unilaterally in granting an extension of value of the plants that Kelley could have removed,
a penn it. If not, Kelley's contrct claim less the costs of removal. The only evidence ad-
duced by Kelley with regard to the issue of dam-
OAOOOS
3. CONCLUSION
N.D.I11.,2008.
Kelley v. Chicago Park Dist.
Slip Copy, 2008 WL 4449886 (N.DJli.)
END OF DOCUMNT
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