Page:Kelley v. Chicago Park District.pdf/14

 novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying.”). No one argues that Wildflower Works was copied; it plainly possesses more than a little creative spark.

The judge was also at a loss to discover “what about the exhibit is original. Is it the elliptical design? The size? The use of native instead of non-native plants? The environmentally-sustainable gardening method to which ‘vegetative management system’ apparently refers?” Kelley, 2008 WL 4449886, at *6. It is true that common geometric shapes cannot be copyrighted. See, § 503.02(a)–(b) (1984); 2  § 4:17 (2010). And “[i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such a work.” 17 U.S.C. § 102(b).

The Park District suggests that Wildflower Works is an uncopyrightable “method” or “system,” and is also ineligible because its design uses simple elliptical shapes. The first of these arguments is not well-developed; the second is misplaced. Although Wildflower Works was designed to be largely self-sustaining (at least initially), it’s not really a “method” or “system” at all. It’s a garden. And Kelley is seeking statutory protection for the garden itself, not any supposed “system” of vegetative management encompassed within it. Regarding the use of elliptical shapes, an author’s expressive combination or arrangement of otherwise noncopyrightable elements (like geometric shapes) may satisfy the originality requirement. Roulo v. Russ Berrie & Co., 886 F.2d 931, 939 (7th Cir.1989); 2 § 4:17 (Geometric shapes or symbols cannot themselves be protected, but an original creative arrangement of them can be.).

The real impediment to copyright here is not that Wildflower Works fails the test for originality (understood as “not copied” and “possessing some creativity”) but that a living garden lacks the kind of authorship and stable fixation normally required to support copyright. Unlike originality, authorship and fixation are explicit constitutional requirements; the Copyright Clause empowers Congress to secure for “authors” exclusive rights in their “writings.” art. 1, § 8, cl. 8; see also 2  § 3:20 (2010) (“[T]he Constitution uses the terms ‘writings’ and ‘authors;’ ‘originality’ is not used.”); id. § 3:22 (2010); 1  § 2.03[A]–[B] (2004). The originality requirement is implicit in these express limitations on the congressional copyright power. See Feist, 499 U.S. at 346, 111 S.Ct. 1282 (The constitutional reference to “authors” and “writings” “presuppose[s] a degree of originality.”). The Supreme Court has “repeatedly construed all three terms in relation to one another [or] perhaps has collapsed them into a single concept”; therefore, “[w]ritings are what authors create, but for one to be an author, the writing has to be original.” 2 § 3:20.

“Without fixation,” moreover, “there cannot be a ‘writing.’ ” Id. § 3:22. The Nimmer treatise elaborates: "Fixation in tangible form is not merely a statutory condition to copyright. It is also a constitutional necessity. That is, unless a work is reduced to tangible form it cannot be regarded as a “writing” within the meaning of the constitutional clause authorizing federal copyright legislation. Thus, certain works of conceptual art stand outside of copyright protection."