Fixation in Copyright Does Not Extend to Wild Flower Garden

The Visual Artists Rights Act of 1990  (VARA) protects artists’ rights of attribution and integrity for a limited subcategory of copyrightable “visual art” works.  VARA is the United States’ attempt to comply with the Berne Convention for the Protection of Literary and Artistic Works, a treaty the United States ratified in 1989.  The Berne Convention protects authors’ and artists’ moral rights.  Moral rights include the right to claim authorship (attribution) and the right to prevent alteration of a work that would be prejudicial to the author’s honor or reputation (integrity).  The 7th Circuit recently declined to protect an artist’s moral rights claim under VARA for a flower garden he created.  Seventh Circuit:  No Moral Rights in Flower Gardens Under VARA, by Ray Dowd, briefly describes the court’s ruling and shows a picture of the garden.

Here is a short recap of Kelley v. Chicago Park District.  Chapman Kelley is an artist who originally was known for painting landscapes and flowers, but switched to planting large outdoor wild flower displays.  In 1984, the Chicago Park District Board of Commissioners granted him a permit to install a wild flower display across 1.5 acres of parkland in Grant Park.  The permit was extended a number of times through 1994.  After that, the display remained in Grant Park without a permit.  Problems caused by insects, rabbits and weeds beset the garden over time.  In 2004, Park District officials met with Kelley to discuss problems with the garden and decreasing the size of the garden.  The Park District then reduced the size of the garden and changed its shape.  Kelley filed suit under VARA.

The 7th Circuit’s decision in Kelley focused on “fixation,” which is separate from VARA, although the court discussed VARA first.  The circuit court disagreed with the district court’s VARA analysis and devoted the first half of its opinion to providing its own VARA analysis.  Since the court decided the case on the copyright “fixation” requirement and not on VARA, the VARA analysis is dicta and not authoritative.  However, the court’s VARA discussion contributes positively to the ongoing VARA discussion.  For example, the court disagrees with the First Circuit’s holding in Phillips v. Pembroke Real Estate, Inc. that “site-specific art is categorically excluded from VARA” and points out some of the inconsistencies in that opinion.  The court also emphasized that VARA protects a subset of works protected by the Copyright Act and that to receive VARA protection, a work must first be copyrightable under the broader Copyright Act.

A work must be fixed to receive copyright protection.

Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

The Copyright Act defines the word “fixed.”

A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

The court declared “a living garden lacks the kind of authorship and stable fixation normally required to support copyright.”  The court made two important points about fixation:

  • Fixation is an explicit constitutional requirement
  • Certain works of conceptual art stand outside of copyright protection

The Copyright Clause  of the United States Constitution speaks of “authors” and their “writings.”  There must be fixation for there to be a writing.  Since some art cannot be fixed in such a way, it does not qualify for copyright protection. 

A living garden like Wildflower Works is neither “authored” nor “fixed” in the senses required for copyright.

[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.

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.

The court distinguished between a garden as a copyrightable work of art and a plan for a garden designed by a landscape designer.  When the landscape designer uses text, diagrams and drawings to plan a garden, the garden plan is embodied in a fixed and tangible copy that can be protected by copyright.

The court explicitly did not rule that only works that are static or fully permanent can be copyrightable or that copyrighted works cannot incorporate natural or living elements.