The opinion of the court was delivered by: Magistrate Judge Mason
PLAINTIFF'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW FINDINGS OF FACT JANE JACOB
1. Jacob is qualified to testify as an expert of art, having worked more than 20 years with four major art institutions: Dallas Museum of Art, Worcester Art Museum, Frank Lloyd Wright Home Studio and Museum, and as Deputy Director of the Terra Museum of American Art in Chicago; having been in the art business for more than 30 years; presently a professor of art history at NYU; and, the owner of Jacob Fine Art. (Rep. Rec. Pg. 9, lines 15-22)
2. Jacob examined Kelley's Wildflower Works project through a thorough examination of well-defined terms. (Rep. Rec. Pg. 10, lines 16-25)
3. Jacob's concluded and through her testimony proved Kelley's project is a work of art. (Rep. Rec. Pg.. 11, lines 1-2, lines 23-24)
4. Jacob applied the tariff laws to define what is art by considering the appearance of the object, Kelley's occupation as an artist and the purpose of the object. (Rep. Rec. Pg.. 11, lines 10-20)
5. Jacob concluded that Chapman Kelley is a well-known artist. (Rep. Rec. Pg. 12, lines 1-11)
6. Jacob concluded that Kelley conceived the whole project as a work of art to be installed on the land provided him by the Chicago Park District. (Rep. Rec. Pg. 12, lines 12-15)
7. At no time did Jacob hear the project referred to as a garden. (Rep. Rec. Pg. 40, lines 1-2)
8. Jacob testified that what may be conceived by some as a garden can definitely be conceived by others as a "work of art." (Rep. Rec. Pg. 13, lines 20-21)
9. Jacob concluded Kelley's project is a work of art in every sense because it's also been written about in numerous art publications as art it is accepted in the art field as art and was produced by someone who makes his living creating art. (Rep. Rec. Pg.. 30, lines 24-25, Rep. Rec. Pg. 31, lines 1-6)
10. Jacob quoted famous artist Andy Warhol describing art as "anything you can get away with." (p. 14, line 7-8).
11. Jacob referred to Ayn Rand's book entitled What is Art: The Esthetic Theory of Ayn Rand, as well as the Bullfinch Dictionary of History to describe how art's definitions have changed since WWII. (Rep. Rec. Pg. 15, lines 8-10, lines 14-22)
12. Sculpture before World War II was art carved out of wood, sculpted from clay, formed from clay or plastic. (p. 15, lines 14-17) But since World War II and the 1960s more specifically, the definitions changed, including the current definition of sculpture "as any non-two dimensional art form". (Rep. Rec. Pg. 16, line 1)
13. Jacob concluded that Kelley's art is also a painting, that the work has been described as a painting since its inception and was initially conceived as a painting (Rep. Rec. Pg.17, lines 16-18).
14. Jacob asserted that the Wildflower Works is a two-dimensional painting when viewed from an airplane above (Rep. Rec. Pg. 18, line 17).
15. The work is also a three-dimensional painting from the ground, noting that many paintings are three dimensional. (Rep. Rec. Pg. 18, lines 22-23)
16. Jacob concluded Kelley's work can not be site specific because it could have been installed in any number of sites, and it would have still been the same installation.
17. Jacob concluded the site was not necessary to create the work of art. (Rep. Rec. Pg. 20, line 25, Pg. 21. lines 1-5).
18. Jacob agreed with the Court that this work is not applied art. (Re. Rec. Pg. 21, line 15).
19. Jacob concluded that the work of art could have been moved within the park, even in its entirety, and therefore is not site specific (Rep. Rec. Pg. 50, lines 5-12, Pg. 55, lines 10-14)
20. Jacob completely disagreed with the suggestion that once a work of art is integrated into a certain environment its removal destroys the artist's concept. (Rep. Rec. Pg. 56,line 48)
21. Jacob cited the works of artist Richard Serra as art that was specifically installed in one museum, then was disassembled, restructured and installed elsewhere -- explaining that it happens all the time. (Rep. Rec. Pg.57, lines 1-7)
22. Jacob applied Section 602 of the Visual Artists Rights Act of 1990 to define Kelley's Wildflower Works as both a painting and a sculpture (Rep. Rec. Pg.22, lines 9-14)
23. Jacob quoted what is not visual art under VARA, Section A, Subsections 1 and 2 to include any poster, map, globe, chart, technical drawing and numerous other forms of drawings and publications unrelated to artistic value. (Rep. Rec. Pg. 24, lines 12-24)
24. VARA was designed to protect the integrity of the artist's work (Rep. Rec. Pg. 25, line 23).
25. VARA's purpose is to prohibit others from altering or destroying works of art without permissions. (Rep. Rec. Pg. 25 lines 24-25, Rep. Rec. Pg. 26.line 1).
26. Many well-known people, artists and publications have referred to Wildflower Works as art. (Rep. Rec. Pg. 27-28).
27. The sketches and the plans for the Wildflower Works project are included in the archives of the Smithsonian Institution in Washington, DC. (Rep. Rec. Pg. 27, lines 1-2)
28. Kelley's Wildflower Works has been written about all over the world in high praise. (Rep. Rec. pg. 27, lines 3-4)
29. The Hirshorns have made statements in public and in public forums about the work. (Rep. Rec. Pg. 27, lines 4-6)
30. The City of Chicago embraced the work on their banners to promote the city, referring to Kelley's art as a painting in written public brochures. Other tourism facts of the City of Chicago, including hotels as late as 2006 this wildflower work as an attraction to the City of Chicago. Other artists have written about it. And it was highly publicized the time of its lifetime as a painting and a valuable installation work of art in the City of Chicago. (Rep. Rec. Pg.27, lines 7-18)
31. Jacob is aware of many occasions when the Chicago Park District referred to Kelley's work as a painting. (Rep/ Rec. Pg.16, lines 24-25, Rep. Rec. Pg.17, line 1)
32. Wildflower Works was not commissioned art. (Rep. Rec. Pg. 290., lines 18-22)
33. Wildflower works falls under the category of experimental materials as artists since the 1960's have sought new, original materials with which to work.(Rep. Rec. Pg. 30, lines 8-13)
34. Jacob testified that all paintings, even those on canvas, are constantly changing and there is no rule in art that says the materials ever have to be fixed. (Rep. Rec. Pg.36, lines 24-25, Rep. Rec. Pg. 37, lines 1-5, 8-0)
35. Jacob described Kelley's art as an example of how a piece can be art even if it is constantly changing in an unpredictable way. (Rep. Rec. Pg. 52, lines 3-5)
36. Jacob's expert opinion was that two elliptical shapes of Kelley's art garden never changed while bounded by cortin steel.(Rep. Rec. Pg. 52, lines 3-5)
37. All art materials change over time. (Rep. Rec. Pg. 52, lines 8-9)
38. Jacob testified that throughout the '60s, '70s to present day artists continue to use three-dimensional applications bound, like Kelley's art garden by a non-changing outside border. (Rep. Rec. Pg. 52, lines 17-21)
39. Jacob concluded it was not necessary that only Kelley make replacements to his original art form. (Rep. Rec. Pg. 52, lines 24-25, Rep. Rec. Pg. 53. lines 4-5)
40. Throughout history, artists have gone back to their original works and retouched or changed things. (Rep. Rec. Pg. 53, lines 8-11)
41. Jacob testified that Picasso was famous for changing his art. (Rep. Rec. Pg. 53,lines 11-12)
42. Jacob testified that the reason the physical changes to the art garden do not bother her is because Chapman Kelley was always involved. (Rep. Rec. Pg. 53, lines 22-25)
43. Jacob testified that Kelley purposely incorporated the vents of the Monroe Street Garage into the work of art (Rep. Rec. Pg. 59,lines 7-9,lines 16-19)
44. Dedmon first began working on the Wildflower project in the late 1980s as member of the Chicago Wildflower Works Board. (Rep. Rec. Pg. 70, lines 19-21)
45. Dedmon has been board president since the mid-90's (Rep. Rec. Pg. 71, lines 15-20).
46. Dedmon's primary responsibility was fundraising (Rep. Rec. Pg. 72, line 6)
47. Dedmon dealt with the Chicago Park District four times regarding Kelley's art (Rep. Rec. Pg.. 72, line 22)
48. Once Kelley's art was being ruined, Dedmon wrote a letter and appeared before the park district at its regularly scheduled meeting to say that a grave injustice had been done. (Rep. Rec. Pg. 74, lines 1-4)
49. The destruction of the art had begun before the meeting in which he raised his objections. (Rep. Rec. Pg. 74, lines 10-14)
50. The destruction of the art had begun even before Dedmon had time to write his letter of complaint. (Rep. Rec. Pg.. 74, lines 12-14)
51. Dedmon was never told the art garden was going to be reshaped (Rep. Rec. Pg. 74,lines 21-22)
52. Dedmon never received written notice there were to be changes done to Kelley's art (Rep. Rec. Pg. 75, lines 6-7)
53. There had been no public meetings to discuss the changing of Kelley's work (Rep. Rec. Pg.. 75, lines 16-17, line 21)
54. Dedmon, Kelley and Maurine Slavin, the Wildflower Works board's secretary, met with Dr. Burroughs of the Park District at lunch in March 2004 (Rep. Rec. Pg. 75, line 25,Rep. Rec. Pg. 76, lines 1-2)
55. Chapman Kelley raised the issue of the expired permit at the luncheon with Dr. Burroughs. (Rep. Rec. Pg. 76, lines 15-22)
56. Dedmon concluded from Dr. Burroughs' responses that the park district had no serious issues with Kelley's art as of that March 2004 meeting. (Rep. Rec. Pg. 77, lines 2-6)
57. The luncheon with Dr. Burroughs was "very friendly" (Rep. Rec. Pg. 77, lines 21-25).
58. The last Park District permit for Kelley's work was issued sometime in the late '80s or early '90s. (Rep. Rec. Pg. 77, lines 9-13)
59. Dedmon witnessed the destruction of the art work. (Rep. Rec. Pg. 78, lines 19-25, Rep. Rec. Pg. 79, line 1)
60. During the destruction, Kelley's two large ovals were reduced to much smaller rectangles, the hedges were added, and in terms of space Dedmon estimated 35 to 40 percent of the large ovals were demolished. (Rep. Rec. Pg. 79, lines 8-18)
61. Dedmon had visited Kelley's art garden many times previous to the dismantling. (Rep. Rec. Pg. 80, lines 9-10)
62. Dedmon said the condition of the art, just prior to it's dismantling, was the same as it had been over the previous 10 years. (Rep. Rec. Pg. 81, lines 13-25).
63. The flowers were healthy just prior to their destruction. (Rep. Rec. Pg. 82, lines 3-4)
64. Following the 1988 litigation, Dedmon never received any written complaints from Park District members regarding the art garden's condition (Rep. Rec. Pg.. 82, lines 13-21)
65. The work of art was constantly changing. (Rep. Rec. Pg. 84, lines 21-25, Rep. Rec. Pg. 85, lines 1-8)
66. Volunteers helped maintain the wildflowers. (Rep. Rec. Pg. 85,lines 15-17)
67. In certain seasons of the year, volunteers groomed the art garden in different ways (Rep. Rec. Pg. 85, lines 21-25, Rep. Rec. Pg. 86. lines 1-5).
68. The garden had to be weeded (Rep. Rec. Pg. 87, lines 3-5).
69. Rabbits and birds and various insects lived there. (Rep. Rec. Pg. 87, lines 10-15, 19-20, 23-25)
70. Dedmon testified that over time Chapman Kelley grew disenchanted with the Grant Park Advisory Council, noting that the Council's agenda had changed and moved away from Kelley's intentions for his art. (Rep. Rec. Pg. 89, lines 21-25, Rep. Rec. Pg. 90,lines 1-9) Dedmon testified that Kelley had a keen interest in using the Wildflower Works to teach water conservation, the right way to do wildflowers when many people had failed. (Rep. Rec. Pg, 90,lines 1-6)
71. Dedmon remembered Dr. Burroughs referring to Kelley's conservation efforts as "the people's flowers.'" (Rep. Rec. Pg. 90, lines 4-5)
72. In 2000-2001, Dedmon and Kelley met with a West Coast design group. (Rep. Rec. Pg. 90, lines 17-21).
73. Both Dedmon and Kelley spoke at the meeting regarding their philosophy of the garden art. Rep. Rec. Pg. 90, lines 9-14)
74. Dedmon was aware of a permit for Wildflower Works dated September 14, 1988. (Rep. Rec. Pg. 94, lines 14-17).
75. That Chicago Wildflower Works did apply for a permit (Rep. Rec. Pg. 103, line 25, Rep. Rec. Pg. 104, lines 1-2)
76. However, Demon never received any correspondence from the Park District on permitting. (Rep. Rec. Pg. 105, lines 10-11)
77. Dedmon said he did not know why the Park District quit issuing permits and no one told him why. (Rep. Rec. Pg. 105, lines 22-25, Rep. Rec. Pg. 106,lines 1-2).
78. Dedmon testified that for the 8-9 previous years his board operated with the Park District's knowledge on the permits that had already been granted. (Rep. Rec. Pg. 108, lines 16-18).
79. Because there were park people in the park daily, and because Kelley had relationships with people in the field house and others in the park district, Dedmon said any complaints would have been brought to his attention earlier than one week before ...