Page:Kelley v. Chicago Park District.pdf/12

 , 2008 WL 4449886, at *5. For its part the Park District initially marketed Wildflower Works as “living art,” but this adds little to the analysis. VARA plainly uses the terms “painting” and “sculpture” as words of limitation. Even assuming a generous stance of what qualifies, see 5 § 16:7 (suggesting a “liberal attitude toward what may be considered a painting, drawing, print, or sculpture”), the terms cannot be read coextensively with the broader categories of “pictorial” and “sculptural” works that are generally eligible for copyright under § 102(a)(5). If a living garden like Wildflower Works really counts as both a painting and a sculpture, then these terms do no limiting work at all.

The district judge worried about taking “too literalist an approach to determining whether a given object qualifies as a sculpture or painting.” Kelley, 2008 WL 4449886, at *4. His concern was the “tension between the law and the evolution of ideas in modern or avant garden art; the former requires legislatures to taxonomize artistic creations, whereas the latter is occupied with expanding the definition of what we accept to be art.” Id. We agree with this important insight. But there’s a big difference between avoiding a literalistic approach and embracing one that is infinitely malleable. The judge appears to have come down too close to the latter extreme. The district court basically concluded that the term “sculpture” included any three-dimensional art form—that is, any “non-two dimensional” work that can be called “art.” Kelley, 2008 WL 4449886, at *5. As we have noted, this expansive approach fails to distinguish between “sculptural works,” included in the broad subject matter of copyright, and VARA’s use of the more limited term “sculpture.” As for “painting” the judge consulted this verb definition for “paint”: “ ‘[1] to apply color, pigment, or paint to … [2] to produce in lines and colors on a surface by applying pigments, [3] to depict by such lines and colors, [4] to decorate, adorn, or variegate by applying lines and colors.’ ” Id. (quoting Merrian-Webster’s Online Dictionary, http://www.m-w.com/dictionary/paint[1] (last visited September 25, 2008)). The judge then characterized Wildflower Works as “[a]n exhibit that corrals the variegation of wildflowers into pleasing oval swatches” and concluded from this that the garden “could certainly fit within some of the[se] … definitions of a painting.” Id.

As we have explained, however, VARA’s definition of a “work of visual art” uses nouns, not verbs. The noun “painting” is more precise that the verb “paint.” A “painting” is: "1.a. Painted matter; that which is painted; … a representation on a surface executed in paint or colours; a painted picture or likeness. b. The representing of a subject on a surface by the application of paint or colours; the art of making such representations; … the practice of applying paint to a canvas, etc., for any artistic purpose."

Painting Definition,, http://www.oed.com/viewdictionaryentry/Entry/136092 (last visited Feb. 10, 2011). The noun “sculpture” means: "1.a …. the process or art of carving or engraving a hard material so as to produce designs or figures in relief, in intaglio, or in the round. In modern use, that branch of fine art which is concerned with the production of figures in the round or in relief, either by carving, by fashioning some plastic substance, or by making a mould for casting in metal; the practice of this art …. 2. concr. a. The product of the sculptor’s art; that which is sculptured (or engraved); sculptured figures in general. b. In particularized sense: A work of sculpture; a sculptured (or engraved) figure or design."

Sculpture Definition, id., http://www.oed.com/viewdictionaryentry/Entry/173877 (last visited Feb. 10, 2011). A living garden might be said to have “painterly” or “sculptural” attributes, but it’s hard to classify a garden as a