A Garden is Not Copyrightable
by Pamela Chestek • February 17, 2011 • copyright
The Clannco Art+Law blog gives us a thorough summary of a Visual Artists Rights Act case out of the 7th Circuit. The court, clearly troubled by the fact that most everyone would consider the work in question a “garden,”
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?
That strikes me as a whole lot of words, but not much substance explaining why a work made of plants can’t be original or fixed other than “they grow.” Many works of art change over time, like the examples given by Kelley in the decision.
Less problematic for me was the court’s opinion that the work did not fit into the statutory categories of “painting” or “sculpture” as required by VARA, citing to dictionary definitions for those categories. The problem for the Chicago Park District was, though, that the court’s discussion was all dicta – the Chicago Park District never challenged the district court’s decision that the work was indeed either a “painting” or “sculpture.”
An interesting decision on a rarely explored statute.
Kelley v. Chicago Park District, Nos. 08-3701 & 08-3712 (7th Cir. Feb. 15, 2011)
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