Chapter 13 of The Memoirs of Chapman Kelley

Chapter 13 of The Memoirs of Chapman Kelley is now available, click here.

  A work-in-progress, Kelley’s Memoirs are also available at art historian Sam Blain’s Dallas Art History Blog.  Subsequent chapters will be published in the near future.

So important was Dallas wildflower artist Chapman Kelley’s artwork, the Chicago Wildflower Works (1984 – 2004) and the U.S. court system’s consideration of it via the artists’ rights case Chapman Kelley v Chicago Park District from 2004 through 2011, that it continues to draw attention throughout the U.S. and internationally.

Above: Kelley's public artwork, the 66,000 sq.ft. noncommissioned Chicago Wildflower Works (1984 - 2004).  View is south from magnificent Grant Park at Randolph St. Buckingham Fountain is in the distance.

Above: Kelley’s public artwork, the 66,000 sq.ft. noncommissioned Chicago Wildflower Works (1984 – 2004). View is south from magnificent Grant Park at Randolph St. Buckingham Fountain is in the distance.

For example, recently Erica Esposito of the Harvard Journal on Sports and Entertainment Law penned an article called “Fixation and Authorship in ‘Living Art’: A Weakness in Copyright Law.”  Here is the link to the original article. For your convenience the full text of the article follows:

“In 1990, Congress passed the Visual Artist’s Rights Act (VARA) as part of the Copyright Act, intended to expand and protect artists’ rights over their works. Specifically, the act acknowledges an artist’s moral rights by granting artists the rights of attribution and integrity whereby they may claim or deny authorship and prevent any modifications of their work that might result in reputational damage.

Rather than protect artistic work, the courts’ application of VARA and copyright law generally has done more to signal the suppression of the very qualities for which we value artists, namely their inventiveness and creativity. This is no clearer than in the recent case of Kelley v. Chicago Park District, in which the Seventh Circuit held that renowned artist Chapman Kelley’s Wildflower Works, a site-specific wildflower installation in Grant Park, lacked the authorship and stable fixation required for copyright protection. Ineligible for copyright protection, this “living art” was consequently precluded from moral rights protection under VARA.

The court held that Wildflower Works lacked sufficient authorship because nature, not Kelley, primarily determined the medium’s – wildflower seeds – form, growth, and appearance. While nature determines the flowers’ appearance, an artist’s influence over his medium’s appearance has never been determinative of authorship in art or law. Intuitively, authorship derives from an artist’s mastery in employing and manipulating his medium to influence the appearance of his composition as a whole. Saying that nature is the primary author of Wildflower Works because it determines the appearance of each flower is akin to saying that nature is the author of Michelangelo’s David because it determined the appearance of the marble from which the sculpture was carved. The court incorrectly focuses its discussion on the origins of the artist’s medium, rather than on how the artist manipulates that medium to produce a new whole. Indeed, as Michelangelo once said, “every block of stone has a statue inside it and it is the task of the sculptor to discover it.”

Likewise, the court argues that Wildflower Works lacks fixation given that its “constituent elements are alive and inherently changeable.” While the court recognizes that copyright does not only attach “to works that are static or fully permanent,” and denies “that artists who incorporate natural or living elements in their work can never claim copyright,” it seems to have a very superficial and constrained notion of what fixation requires. The court finds that Jeff Koons’ sculpture, Puppy, involving a metal frame covered with flowers, may be appropriately fixed for the purposes of copyright protection. Are the courts so antiquated to suggest that copyright protection hinges on the presence or absence of a metal frame or some other more ‘typical’ media, regardless of whether such a feature adds to the work’s integrity?

Artists receive moral rights because we view artistic work as an extension of the artist himself. Thus, artists have a more profound connection to, and deserve greater protection over, the commodities they produce than do producers of other commodities. The raison d’etre of moral rights is to facilitate creativity by assuring artists that the objects of their self-expression, the extensions of their personhood, may not be altered, destroyed, or appropriated without certain recourse. I am not suggesting that recent legal developments have altered the way artists today engage in the creative process. However, persistently narrow statutory interpretations may force artists to conform their work to arbitrary legal requirements in order to acquire the protection and security they need to grow their brand and profit from their work. Would this not stifle the very creativity and artistic integrity that moral rights were meant to enhance?”    (A comments section is open at the Harvard Journal website.)

And Kelley has a standing invitation (unsolicited) to address the Chicago Bar Association this Spring about his WW.
Kelley initiated litigation against the CPD in 2004 to protect his artist rights after the CPD destroyed his public artwork, the 66,000 sq. ft. noncommissionedChicago Wildflower Works (1984 – 2004).  The work was located in Daley Bicentennial Plaza, just a stone’s throw from Millennium Park.  Widely accepted by the public and free to taxpayers, his installation had official CPD approval for the duration.  It was an environmental and artistic success story ahead of its time. The lawsuit’s underpinning, in what eventually became Kelley’s seven-year court battle, is the Visual Artists Rights Act of 1990 or VARA.  In 1988 Kelley sued the CPD for threats to the CWW by asserting that his 1st Amendment right would be infringed; he “won” by way of a court settlement.

The Harvard Journal write up comes on the heels of an event held some months ago in Europe that included a discussion of Kelley v CPD. As an invited guest-speaker, practicing attorney David Liatowitsch journeyed from Switzerland to Italy in May of 2012 to give a PowerPoint presentation of Kelley’s work at the International Bar Association’s annual conference.  Titled New Art: New Legal Challenges, it was held at Rome’s MAXXI  – Museo nazionale delle arti del XXI secolo. The conference was presented by the International Bar Association Art, Cultural Institutions and Heritage Law Committee in cooperation with MAXXI.

The IBA’s annual conference followed a March of 2012 public lecture in Chicago by Professor Roberta Kwall of DePaul University where Chicago Wildflower Works was a major consideration. Kwall said that she had hoped the Supreme Court of the United States would take Kelley vs. CPD under consideration in order to clarify VARA.

     And prior to the Kwall lecture, in January of 2012 Nashville Tennessee’s Vanderbilt University held a Copyright & Creativity Symposium titled Perspectives on Fixation, Authorship and Expresssion where Kelley’s artwork and litigation was a topic of discourse.  Professor Kwall presented her piece, “The Lessons of Living Gardens and Jewish Process Theology for Authorship and Moral Rights.”
     Preceding the Vanderbilt symposium, the Art Newspaper’s U.S. Legal Correspondent Martha Lufkin spoke in October 2011 at a supper lecture titled Artists’ Rights and Free Speech in the Art World, at the Cosmos Club (established in 1878) a private social club in Washington D.C., about Kelley’s litigation.  Not surprisingly, The Art Newspaper, an international print and Internet publication, has taken an active role in covering artists’ rights by writing more than a half dozen articles specifically about Kelley vs. CPD.

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