Page:Kelley v. Chicago Park District.pdf/13

 In short, this case raises serious questions about the meaning and application of VARA’s definition of qualifying works of visual art—questions with potentially decisive consequences for this and other moral-rights claims. But the Park District has not challenged this aspect of the district court’s decision, so we move directly to the question of copyrightability, which is actually where the analysis should start in the first place.


 * 4. Is Wildflower Works copyrightable?

To merit copyright protection, Wildflower Works must be an “original work[ ] of authorship fixed in a[ ] tangible medium of expression … from which [it] can be perceived, reproduced, or otherwise communicated.” 17 U.S.C. § 102(a). The district court held that although Wildflower Works was both a painting and a sculpture, it was ineligible for copyright because it lacked originality. There is a contradiction here. As we have explained, VARA supplements general copyright protection and applies only to artists who create the specific subcategories of art enumerated in the statute. VARA-eligible paintings and sculptures comprise a discrete subset of otherwise copyrightable pictorial and sculptural works; the statute designates these works of fine art as worthy of special protection. If a work is so lacking in originality that it cannot satisfy the basic requirements for copyright, then it can hardly qualify as a painting or sculpture eligible for extra protection under VARA. See Cronin, Dead on the Vine, 12 at 239 (“[I]f a work does not evince sufficient original expression to be copyrightable, the work should belong in a category other than ‘visual art’ as this term is contemplated under VARA.”).

That point aside, the district court’s conclusion misunderstand the originality requirement. Originality is “the touchstone of copyright protection today,” an implicit constitutional and explicit statutory requirement. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 347, 346, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991) (“Originality is a constitutional requirement.”); id. at 355 (The Copyright Act of 1976 made the originality requirement explicit.); see also Schrock, 586 F.3d at 518–19 (“As a constitutional and statutory matter, ‘[t]he sine qua non of copyright is originality.’ ” (quoting Feist, 499 U.S. at 345, 111 S.Ct. 1282)). Despite its centrality in our copyright regime, the threshold for originality is minimal. See Feist, 499 U.S. at 345, 111 S.Ct. 1282; ''Am. Dental Ass’n v. Delta Dental Plans Ass’n'', 126 F.3d 977, 979 (7th Cir.1997) (“The necessary degree of ‘originality’ is low….”). The standard requires “only that the work was independently created by the author (as opposed to copied from other works), and that is possesses at least some minimal degree of creativity.” Feist, 499 U.S. at 345, 111 S.Ct. 1282 (citation omitted). The “requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark.” Id. (citation omitted).

The district court took the position that Wildflower Works was not original because Kelley was not “the first person to ever conceive of and express and arrangement of growing wildflowers in ellipse-shaped enclosed area[s].” Kelley, 2008 WL 4449886, at *6. This mistakenly equates originality with novelty; the law is clear that a work can be original even if it is not novel. Feist, 499 U.S. at 345, 111 S.Ct. 1282 (“Originality does not signify