Page:Kelley v. Chicago Park District.pdf/16

 to satisfy the primary purpose of fixation; its appearance is too inherently variable to supply a baseline for determining questions of copyright creation and infringement. If a garden can qualify as a “work of authorship” sufficiently “embodied in a copy,” at what point has fixation occurred? When the garden is newly planted? When its first blossoms appear? When it is in full bloom? How—and at what point in time—is a court to determine whether infringing copying has occurred?

In contrast, when a landscape designer conceives of a plan for a garden and puts it in writing—records it in text, diagrams, or drawings on paper or on a digital-storage device—we can say that his intangible intellectual property has been embodied in a fixed and tangible “copy.” This writing is a sufficiently permanent and stable copy of the designer’s intellectual expression and is vulnerable to infringing copying, giving rise to the designer’s right to claim copyright. The same cannot be said of a garden, which is not a fixed copy of the gardener’s intellectual property. Although the planting material is tangible and can be perceived for more than a transitory duration, it is not stable or permanent enough to be called “fixed.” Seeds and plants in a garden are naturally in a state of perpetual change; they germinate, grow, bloom, become dormant, and eventually die. This life cycle moves gradually, over days, weeks, and season to season, but the real barrier to copyright here is not temporal but essential. The essence of a garden is its vitality, not its fixedness. It may endure from season to season, but its nature is one of dynamic change.

We are not suggesting that copyright attaches only to works that are static or fully permanent (no medium of expression lasts forever), or that artists who incorporate natural or living elements in their work can never claim copyright. Kelley compares Wildflower Works to the Crown Fountain, a sculpture by Spanish artist Jaume Plensa that sits nearby in Chicago’s Millennium Park. The surfaces of Plensa’s fountain are embedded with LED screens that replay recorded video images of the faces of 1,000 Chicagoans. See http://www.explorechicago.org/city/en/things_see_do/attractions/dca_tourism/Crown_Fountain.html (last visited Feb. 10, 2011). But the Copyright Act specifically contemplates works that incorporate or consist of sounds or images that are broadcast or transmitted electronically, such as telecasts of sporting events or other live performances, video games, and the like. See 17 U.S.C. § 101 (defining “fixed” as including a “work consisting of sounds, images, or both, that are being transmitted … if a fixation of the work is being made simultaneously with its transmission”); see also ''Balt. Orioles, Inc. v. Major League Baseball Players Ass’n, 805 F.2d 663, 675 (7th Cir.1986); Midway Mfg. Co. v. Artic Int’l, Inc.'', 704 F.2d 1008, 1013–14 (7th Cir.1983). Wildflower Works does not fit in this category; the Crown Fountain is not analogous.

Though not addressing the requirement of fixation directly, the district court compared Wildflower Works to “[t]he mobiles of Alexander Calder” and “Jeff Koons’ ‘Puppy,’ a 43-foot flowering topiary.” Kelley, 2008 WL 4449886, at *4. These analogies are also inapt. Although the aesthetic effect of a Calder mobile is attributable in part to its subtle movement in response to air currents, see http://en.wikipedia.org/wiki/Alexander_Calder (last visited Feb. 10, 2011), the mobile itself is obviously fixed and stable. In “Puppy” the artist assembled a huge metal frame in the shape of a puppy and covered it with thousands of blooming flowers sustained by an irrigation system within the frame. See http://en.wikipedia.org/wiki/Jeff_Koons (last visited Feb. 10, 2011). This may be