No. A garden can't get this special legal protection because it's not the kind of thing copyright law was made for. To get protection, an artwork must first be copyrightable. Copyright law requires two things: 1) a person must be the creator (the 'author'), and 2) the creation must be 'fixed' in a stable, unchanging form. A garden fails both tests. First, even though a person plants it, nature does most of the 'creating'—the sun, rain, and biology make the plants grow and change, not the artist. Second, a garden is the opposite of 'fixed'; it is alive and always changing from one day to the next. You can't point to one version of it and say 'this is the final artwork.'

No, the garden can't be protected by copyright laws because it's made of living plants that grow and change, and it wasn't created in a way that can be copied or stay the same. For something to be protected by copyright, it has to be made by a person and stay the same, but a garden is always changing. The court also said that even though you don't need to be super creative to get copyright, you still have to make something new and a little bit creative. And they talked about how the law protects an artist's rights to their work in a special way, but it's limited. The park also didn't actually break a promise because one person from the park couldn't make that promise on their own.

It held that a living garden "lacks the kind of authorship and stable fixation normally required to support copyright

—held that the work was neither a work of human authorship nor fixed in tangible form: “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 …

Urbain also cites to a Seventh Circuit decision criticizing the First Circuit's interpretation that the VARA does not apply to site-specific art.

The performance itself was not copyrighted or even copyrightable, not being "fixed in any tangible medium of expression." 17 USC § 102 (a);

The Seventh Circuit opined that "Wildflower Works" garden's "appearance is too inherently variable to supply a baseline for determining questions of copyright creation and infringement

It stated: "We are not suggesting that copyright attaches only to works that are static or fully permanent (no medium of expression lasts forever), or that artists who incorporate natural or living elements in their work can never claim copyright

"Originality" is not an onerous standard, but it does require both independent creation by the author and a "minimal level of creativity."

"Although the planting material is tangible and can be perceived for more than a transitory duration, it is not stable or permanent enough to be called `fixed.'Seeds and plants in a garden are naturally in a state of perpetual change; they germinate, grow, bloom, become dormant and eventually die. "

"Illinois law provides that ultra vires contracts entered into by municipal corporations are invalid."

Rights of attribution and integrity in a "work of visual art" are a "limited version of the civil-law concept of the `moral rights of the artist.'"

No. A living garden is not a 'work of visual art' under VARA because it fails to meet the fundamental copyright prerequisites of authorship and fixation. VARA protection is a supplement to copyright law, so a work must first be copyrightable to be protected by VARA. To be copyrightable, a work must be an 'original work of authorship fixed in any tangible medium of expression.' Wildflower Works fails this test on two grounds. First, it lacks the required authorship, as gardens are cultivated, not authored. The form, colors, and textures of a garden originate primarily in nature, not in the human mind, and copyright law requires authorship to be an entirely human endeavor. Second, it lacks the required fixation. A work is 'fixed' when its embodiment is 'sufficiently permanent or stable.' A garden, by its very nature, is in a state of perpetual change due to growth, blooming, dormancy, and death; its essence is vitality and dynamism, not fixedness. Because Wildflower Works is not 'authored' or 'fixed' in the senses required for copyright, it cannot receive protection under VARA.

No, a living garden like Wildflower Works is not copyrightable because it is not 'authored' or 'fixed' in the senses required for copyright protection. Wildflower Works is neither 'authored' nor 'fixed' because gardens are planted and cultivated, not authored, and the constituent elements of a garden are alive and inherently changeable, not fixed. The essence of a garden is its vitality, not its fixedness. The court also clarified that while originality is not an onerous standard, it does require both independent creation by the author and a minimal level of creativity. Furthermore, the court noted that the Visual Artists Rights Act's rights of attribution and integrity are a limited version of the civil-law concept of the 'moral rights of the artist.' The district court's treatment of the contract claim is reversed; the Park District is entitled to judgment on that claim as well because there is no evidence that the Park District's Board of Commissioners authorized Commissioner Burroughs to enter into a contract with Kelley.

Kelley v. Chicago Park District

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