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Kelley v. Chicago Park Dist.

September 29, 2008


The opinion of the court was delivered by: Honorable David H. Coar


Plaintiff Chapman Kelley ("Kelley") brought this action against Defendant Chicago Park District ("Park District"), alleging in Counts I and II of the Complaint that the Park District violated the Visual Artists Rights Act, 17 U.S.C. § 106A, when it removed his wildflower plantings that were existing as an exhibit in Grant Park in Chicago, Illinois. He seeks damages to his reputation and integrity as well as statutory damages and attorneys' fees for the allegedly willfully destructive acts of the Park District pursuant to Section 504 of the United States Copyright Act. In Count IV of the complaint,*fn1 Kelley alleges breach of a contract existing between him and the Park District and he seeks the fair market value of materials removed from the Wildflower Works display. The instant matter proceeded to bench trial on September 24, 2007. At the close of trial, both parties submitted post-trial memoranda. Based on the trial and parties' pre-trial and post-trial submissions, the Court makes the following findings of fact and conclusions of law. To the extent that any findings may be deemed conclusions of law, they shall also be considered conclusions. To the extent that any conclusions may be deemed findings of fact, they shall also be considered findings. See Miller v. Fenton, 474 U.S. 104, 113-14 (1985).


a. The Parties

Plaintiff Chapman Kelley is an artist by training and by trade. He has painted on various media and his work is represented in public and private collections in at least eighteen states and three foreign countries. Compl. ¶ 5-6.

Defendant Park District is a duly created public agency organized and existing under the laws of the State of Illinois for the purpose of controlling and supervising the operations of all parks, boulevards, and public ways under its jurisdiction. Final Pretrial Order Agreed Stipulations ("FPTO Stip.") ¶ 2.

b. Wildflower Works

In March 1984, the Park District granted a permit to Kelley to create an exhibit called "Wildflower Works I" ("Wildflower Works") in Chicago's Grant Park. The permit was granted subject to several provisions, including one that gave the Park District the option of terminating the installation with adequate notice:

This installation is subject to a 90 day notice to remove the planting upon written notice from the General Superintendent.

Pl.'s Ex. 12. Under the terms of the permit, Kelley was to install and maintain Wildflower Works at his expense in exchange for the Park District's allowance for the exhibit on its property. Id. Kelley initially financed the project himself and purchased between 200,000 and 380,000 wildflower plugs at a cost of between $80,000 and $152,000.*fn3

In June 1984, Kelley began installing Wildflower Works in an area of Grant Park designated as the Daley Bicentennial Plaza, which is the roof of the East Monroe Street Parking Garage. Grant Park is public land, codified at 70 ILCS 1580, 1585, 1590, and is under the supervision of the Park District. The location is bordered by Monroe and Randolph Streets to the north and south, and Columbus and North Lake Shore Drives to the west and east, and is near the heart of Chicago's central business district. The exhibit consisted of two elliptical shapes, formed by gravel and metal edging, that enclosed two beds of wildflowers, laid out in accordance to Kelley's design. Its approximate size was 1.5 acres, or 66,000 square feet. FPTO Stip. ¶ 17. Kelley planted the wildflower seeds and plugs, cultivated and pruned the plants, and organized volunteers to maintain the gardens. Kelley did maintenance work on the exhibit eight months a year for each of the twenty years it was installed.

After its completion, Wildflower Works attracted the attention of national news outlets, including the New York Times and the Christian Science Monitor, which published articles that commented positively on the exhibit. Wildflowers as Art For a Chicago Park, N.Y. Times, June 20, 1985, at 21; Lucia Mouat, Artist Finds His Wildflowers Are Growing On Chicago, Christian Science Monitor, June 6, 1985, at 1. Kelley was also commended by various state and local officials for the installation. In a letter inviting the press to a preview of Wildflower Works in 1984, Chicago Park District General Superintendent Edmund L. Kelly lauded Kelley as "an internationally renowned artist... a pioneer in the use of natural materials for'living' art [who] has achieved national prominence for his efforts to incorporate landscape in artistic creation." The Illinois Senate recognized Wildflower Works as "a new form of living art... [in] the first park district in the United States to display a live wildflower work of art of this scale" and commended Kelley for "his vast artistic contribution to Grant Park." Pl.'s Ex. 4, Illinois Senate Resolution No. 420 (June 29, 1985).

c. Expiration of the Temporary Permit

In 1988, the Park District notified Kelley that his permit for Wildflower Works was to be terminated within ninety days. Pl.'s Ex. 13, Letter from Jesse Madison, Executive Vice President, Park District, to Chapman Kelley (June 3, 1988). Kelley responded with a lawsuit in the Northern District of Illinois, No. 88 CV 6619, alleging inter alia that his First Amendment rights were being infringed upon. On September 14, 1988, as part of the settlement of that lawsuit, the Park District renewed Kelley's temporary permit for one year. FPTO Stip. ¶ 30, 31; Pl.'s Ex. 14. The 1988 permit did not include the ninety day notice of termination provision of the 1984 permit, supra. Pl.'s Ex. 14. It included instead the following provisions:

The planting material is the property of Mr. Chapman Kelley. If the Chicago Park District does not extend the Permit by September 1, 1989, Mr. Kelley may remove the planting material. If this Permit is not extended by September 1, 1989, the permittees are not required to restore the planted area to its original condition.... This agreement does not create an proprietary interest for Chicago Wildflower Works, Inc. [a non-profit corporation associated with the exhibit], and/or Mr. Chapman Kelley in continuing to operate and maintain the Wildflower Garden Display after September 1, 1989.

Id. The 1988 permit was renewed in 1989, 1990 and 1992. Pl.'s Exs. 15, 17, 19; FPTO Stip. ¶ 33, 34.

The last permit renewal expired on September 30, 1994. After its expiration, Kelley did not apply for a permit, and the Park District did not renew the temporary permit. FPTO Stip. ¶ 35-38. From October 1, 1994 until June 9, 2004, Kelley and his volunteers continued to maintain and install plants in Wildflower Works, and the Park District did not remove the installation. Id. at ¶ 41. In March of 2004, Kelley attended a lunch meeting with Wildflower Works, Inc. President Jonathan Dedmon, Wildflower Works, Inc. Secretary Maurine Slavin, and Park District commissioner Margaret Burroughs. At the meeting, Dedmon asked Burroughs whether Kelley or Wildflower Works, Inc. needed to file a permit for the exhibit. Burroughs responded something to the effect of, "You're still there, aren't you? That's all you need to do."*fn4

The others interpreted Burroughs' statement mean that no further action for a permit was ...

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