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Millennium Park Garden Deemed Not Copyrightable, Because Gardens Are Not Authored

from the fixed-how? dept

Eric Goldman points us to a fascinating ruling concerning whether or not an artistic garden can be covered by copyright (pdf). The ruling itself (embedded below) is interesting for a variety of reasons. It goes over the basics of “moral rights” in US copyright in great detail. As most people know, for the most part, the US does not recognize moral rights — even though the Berne Convention (which the US has tragically signed on to) requires it. Partly to get around this, the US did put in extremely limited moral rights for a very small subset of works, and part of this case revolves around that.

An artist by the name of Chapman Kelley created an artistic wildflower garden in Chicago’s Millennium Park, which he often described as a “living painting.” Years later, after the wildflowers (which had been maintained by others) started to die off, the city of Chicago reduced the size of the garden and reconfigured it. In response, Kelley sued, claiming a violation of his “right of integrity.”

The court goes through a nice discussion on the history of moral rights and copyright in the US and then overrules, partly, the lower court decision that found the garden to be a painting or statue, but not copyrightable because it lacked originality. The court agrees that the work should not qualify for such protections and is uncopyrightable, but not due to the originality argument (which the court says makes little sense). Instead, the appeals court points out something rather basic: copyright only applies to works that are “fixed in a tangible medium of expression.” And here it sees a big problem: a garden is not fixed:

We fully accept that the artistic community might classify Kelley’s garden as a work of postmodern conceptual art. We acknowledge as well that copyright’s prerequisites of authorship and fixation are broadly defined. But the law must have some limits; not all conceptual art may be copyrighted. In the ordinary copyright case, authorship and fixation are not contested; most works presented for copyright are unambiguously authored and unambiguously fixed. But this is not an ordinary case. A living garden like Wildflower Works is neither “authored” nor “fixed” in the senses required for copyright….

Simply put, gardens are planted and cultivated, not authored. A garden’s constituent elements are alive and inherently changeable, not fixed. Most of what we see and experience in a garden–the colors, shapes, textures, and scents of the plants–originates in nature, not in the mind of the gardener. At any given moment in time, a garden owes most of its form and appearance to natural forces, though the gardener who plants and tends it obviously assists. All this is true of Wildflower Works, even though it was designed and planted by an artist.

Of course, a human “author”–whether an artist, a professional landscape designer, or an amateur backyard gardener–determines the initial arrangement of the plants in a garden. This is not the kind of authorship required for copyright. To the extent that seeds or seedlings can be considered a “medium of expression,” they originate in nature, and natural forces–not the intellect of the gardener–determine their form, growth, and appearance. Moreover, a garden is simply too changeable 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?

Seems like an excellent ruling all around, though it is a symptom of our “ownership society” that people believed something like a garden might be copyrightable.

On a separate note, this is not the first time that Chicago’s Millennium Park has run into copyright issues over “artwork” installed in the park. Back in 2005 there was a big controversy over the metallic bean-shaped sculpture in the park, which most people call “The Bean,” but which is technically called “Cloud Gate.” It really makes you wonder why parks don’t require any artists providing artwork for such public displays to relinquish any copyright claims.

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Comments on “Millennium Park Garden Deemed Not Copyrightable, Because Gardens Are Not Authored”

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21 Comments
xenomancer (profile) says:

A Possible Digital Corollary?

“A garden’s constituent elements are alive and inherently changeable, not fixed.”

The vast majority of digital memory is not really a fixed medium either. The bits themselves are “constituent elements” of digital intellectual property that are “inherently changeable.” Though, the pattern supposedly being claimed as protected intellectual property is logically a fixed arrangement of said “inherently changeable” “constituent elements.” Perhaps this could be used as precedent for strengthening fair use? It would be nice to have the substantive mutability of the digital medium critically considered when it comes to attempts to legislate its use.

As for the gardener, wouldn’t copyrighting a garden arrangement be a moot action? The natural variance of plant growth makes the arrangement itself a high order abstraction of the tangible layout. To me, that would seem to be more of an idea in practice rather than a fixed form of expression. I guess that’s what the judge was (succinctly) pointing out.

Anonymous Coward says:

Re: A Possible Digital Corollary?

“A garden’s constituent elements are alive and inherently changeable, not fixed.”

The vast majority of digital memory is not really a fixed medium either. The bits themselves are “constituent elements” of digital intellectual property that are “inherently changeable.” Though, the pattern supposedly being claimed as protected intellectual property is logically a fixed arrangement of said “inherently changeable” “constituent elements.” Perhaps this could be used as precedent for strengthening fair use? It would be nice to have the substantive mutability of the digital medium critically considered when it comes to attempts to legislate its use.

Leave a flower and a memory stick alone in a dark closet. See which one changes…

opit (profile) says:

patents and copyrighting of plants

LOL This should shake up the legal eagles who are busy registering native/aboriginal cultured strains as corporate property. Norwegian archives are filling with seeds from all over to be preserved. And then there’s Monsanto.
I don’t know how eager you are to get into the Rumsfeld WMD activity : NWO plans without a doubt, enabled by the USDA.
Try this : no promises. It was changed to Monsanto HQ’s URL at http://opitslinkfest.blogspot.com/2009/07/corporate-farming.html!
The World According to Monsanto – YouTube Video
http://www.youtube.com/watch?v=fvGddgHRQyg

Anonymous Coward says:

Word Play

Simply put, gardens are planted and cultivated, not authored.

The court here is simply playing with words by finding a word different from “authored” to use. I can do the exact same thing with books: “Books are written, not authored.” So, does that mean that copyright does not apply to books simply because I can find a different word for “authored”?

Anonymous Coward says:

Re: Re: Word Play

The act of cultivation is not an artistic endeavor. Try again?

Sure it is, if it creates a work of art.

What you’re saying is similar to “arranging words is not an artistic endeavor”, or “putting paint on something is not an artistic endeavor.” I’d say that it is, if it produces a work of art.

vivaelamor (profile) says:

Re: Word Play

“Books are written, not authored.”

Technically, books are written and authored. I don’t think the distinction between cultivated and authored is the point, as much as the distinction between cultivated and written, painted and recorded. For your point to hold you’d have to ignore the rest of the judgement, which further clarifies the point.

Anonymous Coward says:

Re: Re: Word Play

Technically, books are written and authored. I don’t think the distinction between cultivated and authored is the point, as much as the distinction between cultivated and written, painted and recorded.

The gardens were cultivated and authored. The plants were cultivated and the layout was authored.

vivaelamor (profile) says:

Re: Re: Re: Word Play

“The gardens were cultivated and authored. The plants were cultivated and the layout was authored.”

You missed my point. I agree with your statement, which is a fair summary of my first point. Then I went on to explain why it doesn’t matter because they clarify the issue in the rest of the judgement. So, really you’ve made that point too, by failing to acknowledge the second half of my comment.

benecere (profile) says:

It is inconsistent

Sorry, my hand slipped on my overly sensitive keyboard.

But, my point is this: The ruling pisses me off for reasons other than my wanting gardens copyrighted. What pisses me off is that this proves that most of the other cases, where the courts, the congress and even damn diplomats are pushing to sue and pull people off the internet are only viable because they are backed by the strong-arms of the RIAA and MPAA.

If the laws were consistent and set precedent, this guy should have won. Perhaps, if it got to that point, people would pay more attention and demand better laws.

I don’t know, but I’d guess if landscapers had a huge lobby behind them, the situation would be a whole lot different.

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