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

Copyright

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.

Filed Under: copyright, garden