Page:Kelley v. Chicago Park District.pdf/6

 Park District proceeded with its plan and reduced Wildflower Works to less than half its original size. The elliptical borders became rectilinear, weeds were removed, surviving wildflowers were replanted in the smaller-scale garden, and some new planting material was added. Dedmon sent a letter of protest to the Park District.

Kelley then sued the Park District for violating his moral rights under VARA. He claimed that Wildflower Works was both a painting and a sculpture and therefore a “work of visual art” under VARA, and that the Park District’s reconfiguration of it was an intentional “distortion, mutilation, or other modification” of his work and was “prejudicial to his … honor or reputation.” See 17 U.S.C. § 106A(a)(3)(A). He also alleged breach of contract; he claimed that Commissioner Burroughs’s remark created an implied contract that the Park District had breached when it altered Wildflower Works without providing reasonable notice. On the VARA claim Kelley sought compensation for the moral-rights violation, statutory damages, and attorney’s fees; on the contract claim he sought the fair-market value of the planting material removed in the reconfiguration. He later quantified his damages, estimating the value of the plants at $1.5 million and requesting a staggering $25 million for the VARA violation.

The case proceeded to a bench trial, and the district court entered judgment for the Park District on the VARA claim and for Kelley on the contract claim. See ''Kelley v. Chi. Park Dist.'', No. 04 C 07715, 2008 WL 4449886 (N.D.Ill. Sept. 29, 2008). The judge first concluded that Wildflower Works could be classified as both a painting and a sculpture and therefore qualified as a work of visual art under VARA. Id. at *4–5. But he also held that Wildflower Works was insufficiently original for copyright, a prerequisite to moral-rights protection under VARA. Id. at *6. Alternatively, the judge concluded that Wildflower Works was site-specific art, and following the First Circuit’s decision in Phillips, held that VARA did not apply to this category of art. Id. at *6–7. On the contract claim the court construed the Chicago Park District Act, 70 1505/7.01, to permit individual commissioners to enter into binding contracts on the Park District’s behalf. Id. at *7–8. The judge found that Commissioner Burroughs’s statement—“You’re still there, aren’t you? That’s all you need to do.”—created an implied contract that the Park District had breached by failing to give Kelley reasonable notice before altering Wildflower Works. Id. But the judge also concluded that Kelley had failed to prove damages to a reasonable certainty and awarded $1 in nominal damages. Id. at *9.

Kelley appealed, challenging the adverse judgment on the VARA claim and the district court’s treatment of the damages issue on the contract claim. The Park District cross-appealed from the judgment on the contract claim.

This case comes to us from a judgment entered after a bench trial; we review the district court’s factual findings for clear error and its conclusions of law de novo. Spurgin-Dienst v. United States, 359 F.3d 451, 453 (7th Cir.2004). In this circuit, questions of copyright