Page:Kelley v. Chicago Park District.pdf/11

 Id. § 113 (emphasis added). This is known as the “building exception.”

VARA rights cannot be transferred or assigned, but they can be waived in a writing signed by the artist and “specifically identify[ing] the work, and uses of that work, to which the waiver applies.” Id. § 106A(e)(1). Absent a written waiver, the artist retains VARA rights during his lifetime even if he transfers ownership of the work or assigns his copyright. Id. § 106A(d)(1), (e)(2).


 * 3. Is Wildflower Works a painting or sculpture?

The district court held that Wildflower Works was both a painting and a sculpture but was insufficiently original to qualify for copyright. Alternatively, the court concluded that it was site-specific art and held that all site-specific art is implicitly excluded from VARA. Other arguments—in particular, whether Wildflower Works satisfies additional threshold requirements for copyright and whether VARA’s public-presentation or building exceptions applied—were not reached.

On appeal Kelley contests the district court’s conclusions regarding originality and site-specific art. The Park District defends these holdings and also reiterates the other arguments it made in the district court, except one: The Park District has not challenged the district court’s conclusion that Wildflower Works is a painting and a sculpture.

This is an astonishing omission. VARA’s definition of “work of visual art” operates to narrow and focus the statute’s coverage; only a “painting, drawing, print or sculpture,” or an exhibition photograph will qualify. These terms are not further defined, but the overall structure of the statutory scheme clearly illuminates the limiting effect of this definition. Copyright’s broad general coverage extends to “original works of authorship,” and this includes “pictorial, graphic, and sculptural works.” 17 U.S.C. § 102(a)(5). The use of the adjectives “pictorial” and “sculptural” suggests flexibility and breadth in application. In contrast VARA uses the specific nouns “painting” and “sculpture.” To qualify for moral-rights protection under VARA, Wildflower Works cannot just be “pictorial” or “sculptural” in some aspect or effect, it must actually be a “painting” or a “sculpture.” Not metaphorically or by analogy, but really.

That Kelley considered the garden to be both a painting and a sculpture—only rendered in living material—is not dispositive. He also characterized it as an experiment in environmental theory, telling a reporter he was trying to “figure out the economic and ecological impact of introducing wildflowers into cities.” In promoting Wildflower Works, Kelley variously described the project as a “living wildflower painting,” a “study on wildflower landscape and management,” and “a new vegetative management system that beautifies [the] landscape economically with low-maintenance wildflowers.”

Kelley’s expert, a professor of art history, reinforced his view that Wildflower Works was both a painting and a sculpture, but the district court largely disregarded her testimony as unhelpful.