Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:04-cv-07715-David H. Coar, Judge.
The opinion of the court was delivered by: Sykes, Circuit Judge.
Before MANION, SYKES, and TINDER,Circuit Judges.
Chapman Kelley is a nationally recognized artist known for his representational paintings of landscapes and flowers-in particular, romantic floral and woodland interpretations set within ellipses. In 1984 he received permission from the Chicago Park District to install an ambitious wildflower display at the north end of Grant Park, a prominent public space in the heart of downtown Chicago. "Wild-flower Works" was thereafter planted: two enormous elliptical flower beds, each nearly as big as a football field, featuring a variety of native wildflowers and edged with borders of gravel and steel.
Promoted as "living art," Wildflower Works received critical and popular acclaim, and for a while Kelley and a group of volunteers tended the vast garden, pruning and replanting as needed. But by 2004 Wildflower Works had deteriorated, and the City's goals for Grant Park had changed. So the Park District dramatically modified the garden, substantially reducing its size, reconfiguring the oval flower beds into rectangles, and changing some of the planting material.
Kelley sued the Park District for violating his "right of integrity" under the Visual Artists Rights Act of 1990 ("VARA"), 17 U.S.C. § 106A, and also for breach of con-tract. The contract claim is insubstantial; the main event here is the VARA claim, which is novel and tests the boundaries of copyright law. Congress enacted this statute to comply with the nation's obligations under the Berne Convention for the Protection of Literary and Artistic Works. VARA amended the Copyright Act, importing a limited version of the civil-law concept of the "moral rights of the artist" into our intellectual-property law. In brief, for certain types of visual art- paintings, drawings, prints, sculptures, and exhibition photographs-VARA confers upon the artist certain rights of attribution and integrity. The latter include the right of the artist to prevent, during his lifetime, any distortion or modification of his work that would be "prejudicial to his . . . honor or reputation," and to recover for any such intentional distortion or modification undertaken without his consent. See 17 U.S.C. § 106A(a)(3)(A).
The district court held a bench trial and entered a split judgment. The court rejected Kelley's moral-rights claim for two reasons. First, the judge held that although Wildflower Works could be classified as both a painting and a sculpture and therefore a work of visual art under VARA, it lacked sufficient originality to be eligible for copyright, a foundational requirement in the statute. Second, following the First Circuit's decision in Phillips v. Pembroke Real Estate, Inc.,459 F.3d 128 (1st Cir. 2006), the court concluded that site-specific art like Wildflower Works is categorically excluded from protection under VARA. The court then held for Kelley on the contract claim, but found his evidence of damages uncertain and entered a nominal award of $1. Both sides appealed.
We affirm in part and reverse in part. There is reason to doubt several of the district court's conclusions: that Wildflower Works is a painting or sculpture; that it flunks the test for originality; and that all site-specific art is excluded from VARA. But the court was right to reject this claim; for reasons relating to copyright's requirements of expressive authorship and fixation, a living garden like Wildflower Works is not copyrightable. The district court's treatment of the contract claim is another matter; the Park District is entitled to judgment on that claim as well.
Kelley is a painter noted for his use of bold, elliptical outlines to surround scenes of landscapes and flowers. In the late-1970s and 1980s, he moved from the canvas to the soil and created a series of large outdoor wild-flower displays that resembled his paintings. He planted the first in 1976 alongside a runway at the Dallas-Fort Worth International Airport and the second in 1982 outside the Dallas Museum of Natural History. The wildflower exhibit at the museum was temporary; the one at the airport just "gradually petered out."
In 1983 Kelley accepted an invitation from Chicago-based oil executive John Swearingen and his wife, Bonnie-collectors of Kelley's paintings-to come to Chicago to explore the possibility of creating a large outdoor wildflower display in the area. He scouted sites by land and by air and eventually settled on Grant Park, the city's showcase public space running along Lake Michigan in the center of downtown Chicago. This location suited Kelley's artistic, environmental, and educational mission; it also provided the best opportunity to reach a large audience. Kelley met with the Park District superintendent to present his proposal, and on June 19, 1984, the Park District Board of Commissioners granted him a permit to install a "permanent Wild Flower Floral Display" on a grassy area on top of the underground Monroe Street parking garage in Daley Bicentennial Plaza in Grant Park. Under the terms of the permit, Kelley was to install and maintain the exhibit at his own expense. The Park District reserved the right to terminate the installation by giving Kelley "a 90 day notice to remove the planting."
Kelley named the project "Chicago Wildflower Works I." The Park District issued a press release announcing that "a new form of 'living' art" was coming to Grant Park- "giant ovals of multicolored wildflowers" created by Kelley, a painter and "pioneer in the use of natural materials" who "attracted national prominence for his efforts to incorporate the landscape in artistic creation." The announcement explained that "[o]nce the ovals mature, the results will be two breathtaking natural canvases of Kelley-designed color patterns."
In the late summer of 1984, Kelley began installing the two large-scale elliptical flower beds at the Grant Park site; they spanned 1.5 acres of parkland and were set within gravel and steel borders. A gravel walkway bisected one of the ovals, and each flower bed also accommodated several large, pre-existing air vents that were flush with the planting surface, providing ventilation to the parking garage below. For planting material Kelley selected between 48 and 60 species of self-sustaining wildflowers native to the region. The species were selected for various aesthetic, environmental, and cultural reasons, but also to increase the likelihood that the garden could withstand Chicago's harsh winters and survive with minimal maintenance. Kelley designed the initial placement of the wildflowers so they would blossom sequentially, changing colors throughout the growing season and increasing in brightness towards the center of each ellipse. He purchased the initial planting material-between 200,000 and 300,000 wild-flower plugs-at a cost of between $80,000 and $152,000. In September of 1984, a battery of volunteers planted the seedlings under Kelley's direction.
When the wildflowers bloomed the following year, Wildflower Works was greeted with widespread acclaim. Chicago's mayor, the Illinois Senate, and the Illinois Chapter of the American Society of Landscape Artists issued commendations. People flocked to see the lovely display-marketed by the Park District as "living landscape art"-and admiring articles appeared in national newspapers. Wildflower Works was a hit. Here's a picture:
For the next several years, Kelley's permit was renewed and he and his volunteers tended the impressive garden. They pruned and weeded and regularly planted new seeds, both to experiment with the garden's composition and to fill in where initial specimen had not flourished. Of course, the forces of nature-the varying bloom periods of the plants; their spread habits, compatibility, and life cycles; and the weather-produced constant change. Some wildflowers naturally did better than others. Some spread aggressively and encroached on neighboring plants. Some withered and died. Unwanted plants sprung up from seeds brought in by birds and the wind. Insects, rabbits, and weeds settled in, eventually taking a toll. Four years after Wildflower Works was planted, the Park District decided to discontinue the exhibit. On June 3, 1988, the District gave Kelley a 90-day notice of termination.
Kelley responded by suing the Park District in federal court, claiming the termination of his permit violated the First Amendment. The parties quickly settled; in exchange for dismissal of the suit, the Park District agreed to extend Kelley's permit for another year. On September 14, 1988, the Park District issued a "Temporary Permit" to Kelley and Chicago Wildflower Works, Inc., a nonprofit organization formed by his volunteers. This permit authorized them "to operate and maintain a two ellipse Wildflowers Garden Display . . . at Daley Bicentennial Plaza in Grant Park" until September 1, 1989. The permit stipulated that Kelley "will have responsibility and control over matters relating to the aesthetic design and content of Wildflower Works I," and Wildflower Works, Inc. "shall maintain the Wildflower Works I at no cost to the Chicago Park District including, without limitation, weeding and application of fertilizer." Although it did not contain a notice-of-termination provision, the permit did state that "[t]he planting material is the property of Mr. Chapman Kelley" and that Kelley "may remove the planting material" if the permit was not extended. Finally, the permit provided that "[t]his agreement does not create any proprietary interest for Chicago Wildflower Works, Inc., or Mr. Chapman Kelley in continuing to operate and maintain the Wildflower Garden Display after September 1, 1989."
The Park District formally extended this permit each succeeding year through 1994. After that point Kelley and his volunteers continued to cultivate Wildflower Works without a permit, and the Park District took no action, adverse or otherwise, regarding the garden's future. In March 2004 Kelley and Jonathan Dedmon, president of Wildflower Works, Inc., attended a luncheon to discuss the 20th anniversary of Wildflower Works. At the luncheon Dedmon asked Park District Commissioner Margaret Burroughs if Wildflower Works needed a new permit. Commissioner Burroughs responded, "You're still there, aren't you? That's all you need to do."
Three months later, on June 10, 2004, Park District officials met with Kelley and Dedmon to discuss problems relating to inadequate maintenance of the garden and forthcoming changes to Grant Park necessitated by the construction of the adjacent Millennium Park. The officials proposed reconfiguring Wildflower Works-decreasing its size from approximately 66,000 square feet to just under 30,000 square feet and remaking its elliptical flower beds into rectangles. The District's director of development invited Kelley's views on this proposal but made it clear that the District planned to go forward with the reconfiguration with or without Kelley's approval. Kelley objected to the proposed changes, but did not request an opportunity to remove his planting material before the reconfiguration took place. A week later the Park District proceeded with its plan and reduced Wildflower Works to less than half its original size. The elliptical borders became rectilinear, weeds were removed, surviving wildflowers were replanted in the smaller-scale garden, and some new planting material was added. Dedmon sent a letter of protest to the Park District.
Kelley then sued the Park District for violating his moral rights under VARA. He claimed that Wildflower Works was both a painting and a sculpture and therefore a "work of visual art" under VARA, and that the Park District's reconfiguration of it was an intentional "distortion, mutilation, or other modification" of his work and was "prejudicial to his . . . honor or reputation." See 17 U.S.C. § 106A(a)(3)(A). He also alleged breach of contract; he claimed that Commissioner Burroughs's remark created an implied contract that the Park District had breached when it altered Wildflower Works without *fn1sought compensation for the moral-rights violation, statutory damages, and attorney's fees; on the contract claim he sought the fair-market value of the planting material removed in the reconfiguration. He later quantified his damages, estimating the value of the plants at $1.5 million and requesting a staggering $25 million for the VARA violation.
The case proceeded to a bench trial, and the district court entered judgment for the Park District on the VARA claim and for Kelley on the contract claim. See Kelley v. Chi. Park Dist., No. 04 C 07715, 2008 WL 4449886 (N.D. Ill. Sept. 29, 2008). The judge first concluded that Wild-flower Works could be classified as both a painting and a sculpture and therefore qualified as a work of visual art under VARA. Id. at *4-5. But he also held that Wild-flower Works was insufficiently original for copyright, a prerequisite to moral-rights protection under VARA. Id. at *6. Alternatively, the judge concluded that Wild-flower Works was site-specific art, and following the First Circuit's decision in Phillips, held that VARA did not apply to this category of art. Id. at *6-7. On the contract claim the court construed the Chicago Park District Act, 70 ILL. COMP. STAT. 1505/7.01, to permit individual commissioners to enter into binding contracts providing reasonable notice. On the VARA claim Kelley on the Park District's behalf. Id. at *7-8. The judge found that Commissioner Burroughs's statement- "You're still there, aren't you? That's all you need to do."-created an implied contract that the Park District had breached by failing to give Kelley reasonable notice before altering Wildflower Works. Id. But the judge also concluded that Kelley had failed to prove damages to a reasonable certainty and awarded $1 in nominal damages. Id. at *9.
Kelley appealed, challenging the adverse judgment on the VARA claim and the district court's treatment of the damages issue on the contract claim. The Park District cross-appealed from the judgment on the contract claim.
This case comes to us from a judgment entered after a bench trial; we review the district court's factual findings for clear error and its conclusions of law de novo. Spurgin-Dienst v. United States,359 F.3d 451, 453 (7th Cir. 2004). In this circuit, questions of copyright eligibility are issues of law subject to independent review. Schrock v. Learning Curve Int'l, Inc.,586 F.3d 513, 517 (7th Cir. 2009).
A. Kelley's Moral-Rights Claim Under the Visual Artists Rights Act of 1990
1. A brief history of moral rights
That artists have certain "moral rights" in their work is a doctrine long recognized in civil-law countries but only recently imported into the United States.Moral rights are generally grouped into two categories: rights of attribution and rights of integrity. "Rights of attribution" generally include the artist's right to be recognized as the author of his work, to publish anonymously and pseudonymously, to prevent attribution of his name to works he did not create, and to prevent his work from being attributed to other artists. Carter v. Helmsley-Spear, Inc., 71 F.3d 77, 81 (2d Cir. 1995) (citing RALPH E. LERNER & JUDITH BRESLER, ART LAW 419-20 (1989)). "Rights of integrity" include the artist's right to prevent the modification, mutilation, or distortion of his work, and in some cases (if the work is of recognized stature), to prevent its destruction. Id. at 81-82 (citing ART LAWat 420-21).
Originating in nineteenth-century France, moral rights- le droit moral -are understood as rights inhering in the*fn2artist's personality, transcending property and contract rights and existing independently of the artist's economic interest in his work. See 3 MELVILLE B. NIMMER &DAVID NIMMER, NIMMER ON COPYRIGHT § 8D.01[A] (2010); 5 WILLIAM F. PATRY, PATRY ON COPYRIGHT §§ 16:1,16:3 (2010); John Henry Merryman, The Refrigerator of Bernard Buffet,27 HASTINGS L.J. 1023, 1023-28 (1976). American copyright law, on the other hand, protects the economic interests of artists; Article I of the Constitution authorizes Congress "To Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." U.S. CONST. art. 1, § 8, cl. 8. Unlike other intellectual-property rights, moral rights are unrelated to the artist's pecuniary interests and are grounded in philosophical ideas about the intrinsic nature and cultural value of art rather than natural-property or utility justifications. See Carter, 71 *fn3F.3d at 81 (describing moral rights as "rights of a spiritual, non-economic and personal nature [that] . . . spring from a belief that an artist in the process of creation injects his spirit into the work and that the artist's personality, as well as the integrity of the work, should therefore be protected and preserved"). VARA introduced a limited version of this European doctrine into American law, but it is not an easy fit.*fn4
VARA was enacted as a consequence of the United States' accession to the Berne Convention for the Protection of Literary and Artistic Works. After many years of resistance, the Senate ratified the treaty in 1988, bringing the United States into the Berne Union effective the following year. See 4 NIMMER § 17.01[C] (2010); 5 PATRY §§ 16:1, 16:3. The Berne Convention dates to 1886, when seven European nations (plus Haiti and Tunisia) joined together to extend copyright protection across their borders. See 4 NIMMER § 17.01[B] nn.10 & 17 (2002). During the course of the next century, many other nations joined, and the treaty underwent periodic revisions, most notably for our purposes in 1928 when Article 6bis was added, incorporating the concept of moral rights. See 3 id. § 8D.01[B] (2004); 5 PATRY §§ 16:1, 16:3. Article 6bis provides:
(1) Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.
(3) The means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where protection is claimed.
Berne Convention for the Protection of Literary and Artistic Works, art. 6bis, Sept. 9, 1886, as revised at Paris on July 24, ...