Wildflower Garden Lacked "Authorship" and "Fixation"

by Janette Spencer-Davis, Legal Editor, CCH Copyright Law Reports   

An artist's live wildflower garden display in a public city park did not qualify for moral-rights protection under the Visual Artists Rights Act (VARA), the U.S. Court of Appeals in Chicago ruled. Accordingly, judgment in favor of a park district on the artist's claim that the district violated his "right of integrity" by reducing the size of his garden, reconfiguring the shape, and changing the planting materials was affirmed.

The VARA gives an artist "rights of attribution" --the right to be recognized as the author of his work and to prevent attribution of his name to works he did not create, and "rights of integrity" --the right to prevent the modification, mutilation, or distortion of his work. To qualify for protection as a "work of visual art" under the VARA, a work must first satisfy the basic copyright standards. Pursuant to Section 102(a) of the Copyright Act, copyright subsists in "original works of authorship fixed in any tangible medium of expression."

The garden was not copyrightable because it lacked the kind of authorship and stable fixation normally required to support copyright. Authorship is an entirely human endeavor. Authors of copyrightable works must be human. Works owing their form to the forces of nature cannot be copyrighted. A living garden is neither "authored" nor "fixed" in the senses required for copyright. The wildflower garden was planted and cultivated, not authored. Moreover, the garden's constituent elements were alive and inherently changeable, not fixed. Most of what one sees and experiences in a garden --colors, shapes, textures, and scents of plants --originate in nature, not in the mind of the gardener. Thus, the park district was entitled to judgment on the VARA claim (Kelley v. Chicago Park District, 7thCir, ΒΆ30,043).