Seventh Circuit: No Moral Rights In Flower Gardens Under VARA

In Chapman Kelly v. Chicago Park District, 2011 WL 501161 (7th Cir. Feb 15, 2011), the Seventh Circuit rejected a claim of moral rights in a public garden in Chicago.

What is a painting?  What is a sculpture?   What is original and what is fixation?   All interesting questions tackled by the Seventh Circuit in determining whether an artist had moral rights in a garden under the Visual Artists Rights Act.

From the decision (linked below)

Simply put, gardens are planted and cultivated, not authored. 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 most of its form and appearance to natural forces, though the gardener who plants and tends it obviously assists. All this is true of Wildflower Works, even though it was designed and planted by an artist.

Of course, a human “author”—whether an artist, a professional landscape designer, or an amateur backyard gardener—determines the initial arrangement of the plants in a garden. This is not the kind of authorship required for copyright. To the extent that seeds or seedlings can be considered a “medium of expression,” they originate in nature, and natural forces—not the intellect of the gardener—determine their form, growth, and appearance. Moreover, a garden is simply too changeable to satisfy the primary purpose of fixation; its appearance is too inherently variable to supply a baseline for determining questions of copyright creation and infringement. If a garden can qualify as a “work of authorship” sufficiently “embodied in a copy,” at what point has fixation occurred? When the garden is newly planted? When its first blossoms appear? When it is in full bloom? How—and at what point in time—is a court to determine whether infringing copying has occurred?

Chapman Kelly v Chicago Park District


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Copyright and Fine Art Webcast CLE: 10/28 By West Legal Ed

Copyright Issues Related to Fine Art

Content Partner: West LegalEdcenter (R)
Price: $135.00*
Description: Since the advent of the Internet, most of our friends, family, and clients have become global publishers, copying and repasting copyrighted works of others on a daily basis. At the same time, contemporary art has skyrocketed in economic and symbolic importance in modern society, with a greatly expanded collector base. Changing media, modes of production, and a general lack of transparency in the art world have created a special realm of problems for both casual participants and seasoned art world veterans alike. Ray Dowd, author of Copyright Litigation Handbook (West 2010), teams up with New York and L.A.-based fine art attorney Amy Goldrich to provide the tools necessary to advise clients navigating these issues.

Among the topics to be discussed:
• Overview of copyright and special problems posed by fine art
• Basic copyright concepts generally applicable to fine art
• Recent cases involving the Visual Artists' Rights Act (VARA)
• Legal relationships in the Art World
• Transfers of possession and title: consignments, private sales, auctions, and unfortunate events
• Copyright Infringement and Fair Use
• First Sale Doctrine
• Work for hire

More information and to attend click here.https://westlegaledcenter.com/search/displayDailyWebcastSearchResults.jsf

Practice Areas: Art Fraud, Copyright Law, Enforcement & Anti-Piracy, Entertainment & the Arts, Intellectual Property Law, International Intellectual Property, International Law & Global Trade, Licensing & Intellectual Property Rights

Online Media Type: Audio
Production Date: 10/28/2010 12:00 PM EDT
Level: Intermediate
Category: Standard
Duration: 1 Hours, 0 Minutes
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Fair Use Friday: Exploiting the Mona Lisa

\Partial image of Double Mona Lisa, After Warhol, (Peanut Butter + Jelly) 1999 Full image here

A basic tenet of copyright law is that once a copyright has expired, it enters the public domain, for all to use.  But when someone adds a copyrightable contribution to a public domain work, that contribution is copyrightable.   So when Andy Warhol made Double Mona Lisa:

Double Mona Lisa (Andy Warhol, 1963)

It is clear that Warhol was using Leonardo Da Vinci's public domain image of the Mona Lisa.   He probably took the image from a photograph of of the Mona Lisa.    The case law says that exact images of public domain works are not protected by copyright.

But now we see Vik Muniz taking Warhol's arrangement of the "double" Mona Lisa - and putting Warhol's name in the title of the work - part of an ancient artistic tradition.  Muniz selects the fine art medium of peanut butter and jelly to execute his work.

Is the borrowing of Warhol's name and arrangement of a PD work ok?  Does the selection of peanut butter and jelly drive the transformative nature of the work?   And would the answer change if Warhol's work were an entirely original composition NOT based on a public domain work?   And does the number of copies matter?

I think Muniz's composition is strikingly original and beautiful masterpiece of 20th Century art. 

Some thoughts for Fair Use Friday.  Meanwhile, watch the video to see whether scientists now believe that the Mona Lisa was pregnant.

Fifth Circuit on Corporate Logos, First Amendment, VARA and Copyright, Utilitarian Objects and Ralph the Cactus Planter

http://www.austinchronicle.com/

In Kleinman v. City of San Marcos, --- F.3d ----, 2010 WL 447894 (5th Cir. 2010 Feb. 10, 2010), the Fifth Circuit decided the question of whether Ralph the Cactus Planter, a junked Oldsmobile '88 filled with dirt, planted with cactus and covered with paintings by artists commissioned to include the message "make love not war" was protected by the First Amendment or a work covered by the Visual Artists Rights Act ("VARA").

The Fifth Circuit looked to the Second Circuit's analysis in Bery v. Bery, 97 F.3d 689 (2d Cir. 1996) and adopted Bery's distinction between works of fine art and works of decorative art.   The court found the Junked Vehicle statute to survive intermediate scrutiny under a First Amendment analysis. 

The court found that VARA did not apply, since Ralph was a distinctive corporate symbol of the Planet K business (novelty shops).  VARA excludes "any merchandising item or advertising, promotional, descriptive, covering, packaging material or container."    The court upheld the district court's finding that Ralph was "promotional material" and thus VARA did not apply.

In the court's words:

Irrespective of the intentions of its creators or Planet K's owner, the car-planter is a utilitarian device, an advertisement, and ultimately a “junked vehicle.” These qualities objectively dominate any expressive component of its exterior painting. Appellants concede that the car falls within the definition of the San Marcos ordinance. Moreover, the Eighth Circuit, confronted before Hurley with a wrecked auto that was displayed streetside to remind the public how the owner's son had been killed, had no difficulty finding that the auto's removal under a junked-vehicle ordinance survived intermediate scrutiny. Davis v. Norman, 555 F.2d 189 (8th Cir.1977). When the “expressive” component of an object, considered objectively in light of its function and utility, is at best secondary, the public display of the object is conduct subject to reasonable state regulation. We therefore pretermit “recourse to principles of aesthetics.”

The decision is problematic for artists and lacking in copyright analysis.   A chassis of an car that has been almost completely transformed is not at all a "utilitarian object".

Marcel Duchamp Fountain, 1917 photo Alfred Steiglitz

(courtesy Wikipedia).

The artwork would appear to be a sculptural work and have sufficient copyrightable elements to be protected as such under federal law.  Two painters were commissioned to paint the work.  The court's VARA analysis seems problematic, compare the First Circuit's thoughtful analysis in Buchel v. Mass MoCA, discussed here.   Query also how narrowly tailored the junk vehicle statute really is.

Why put a fence around Ralph?  Can the state really put a fence around every art installation that contains part of an old car?

Visual Artists Rights Act: Artist Moral Rights in Unfinished Sculptural Works

In Massachusetts Museum of Contemporary Art Foundation v. Buchel, --- F.3d ---, 2010 WL 297834 (1st. Cir. January 27, 2010), the First Circuit decided a case of first impression that decided a number of complex issues related to the Visual Artists Rights Act ("VARA").

I first wrote about the case here (Visual Artists Rights Act - Right to Display Works That Do Not Yet Exist - December 16, 2007).  The case involved a Swiss installation artist, Christoph Buechel (The "u" in Buechel has an umlaut, but Blogger, unless I am missing something, does not), who, without a clear written agreement, agreed with the Mass Moca to install one of his works.   It was agreed that Mass Moca would pay, and that Buechel would own the copy.

Buechel's installations have been likened to "bristling three-dimensional history paintings" yet are "so obsessively detailed that they might be described as panoramic collage" (full size images here).

The District Court denied Buechel injunctive relief and granted summary judgment against him.   The fact pattern was a law professor's delight:  during the installation, Mass Moca's staff (being directed by emails from Switzerland, allegedly made aesthetic decisions against the artist's will, made "compromises" he did not agree to, covered the work in tarps (allegedly inviting sneek peeks) and held an exhibition next door, which purportedly was orchestrated to subject the artist to ridicule (a local paper referred to the art as "Crap under Wrap").

A few takeaways from a decision that reads like a Peter Greenaway film watches:

1.  artists have rights in unfinished works;
2.  installations are sculptural works;
3. unfinished works are sufficiently "fixed" to be copyrightable subject matter;
4.  if you are going to allege joint authorship (as Mass Moca did, you have to specifically allege your copyrightable contribution);
5.  if you are a museum, get VARA waivers in advance or a clear understanding in writing of who pays for what and what happens if things go wrong;
6.  VARA's moral rights include "attribution" and "integrity";
7. no statutory damages for violations of an artist's right of attribution;
8.   VARA does not include a right of "divulgation" (which sounds a lot like the "display" or "distribution" rights under the Copyright Act;
9.   If you are going to argue that someone violated your rights to prepare a derivative work, if you do not develop the argument on appeal, the court may find that you waived it;
10.  Even if VARA doesn't help you, go back to Section 106 and find another traditional copyright that's been violated and allege it.

Here is the court's summary of its own holdings:
1. VARA's protection of an artist's moral rights extends to unfinished creations that are “works of art” within the meaning of the Copyright Act;

2. The right of integrity under VARA protects artists from distortions, mutilations or modifications of their works that are prejudicial to their reputation or honor, and prejudice must be shown for both injunctive relief and damages;

3. Büchel has adduced sufficient evidence to raise a genuine issue of material fact as to whether MASS MoCA violated his right of integrity on one of his three asserted bases for liability, namely, by modifying “Training Ground” over his objections in a manner that harmed his honor or reputation. His right-of-integrity claims based on the yellow tarpaulins and the mere display of “Training Ground” lack merit;
4. Büchel's right-of-attribution claim is moot, as VARA provides only injunctive relief to protect the right of attribution and the installation no longer exists;

5. The record reveals a genuine issue of material fact as to whether MASS MoCA violated Büchel's exclusive right under section 106(5) of the Copyright Act to display his work publicly;

6. Büchel fails to adequately develop his claim that MASS MoCA violated his exclusive right under section 106(2) to prepare derivative works based on “Training Ground,” and that claim is therefore waived.

We thus remand the case for further proceedings on Büchel's remaining right-of-integrity claim under VARA and his public display claim under section 106 of the Copyright Act.

Although this has been billed as a victory for artist's rights, it showcases some of VARA's weaknesses (no $$$ for the artist if a right to attribution is violated).   It also means that every museum counsel in the country, if not the world, will be trying to force artists to sign away rights as a condition of display.

Again, a decision and a fact pattern worth reading and savoring, but a decision that seems to be unfortunate for Mass Moca, an institution that seemed to be trying to support the avant-garde in an idealistic and trusting, if perhaps misguided manner.
A scaled-down version of the installation was exhibited at Art Basel in Miami Beach in 2007 and sold.

Visual Artists Rights Act - Right to Display Works That Do Not Yet Exist

The Massachusetts Museum of Contemporary Art sued Swiss artist Christoph Buchel over an installation called Training Ground for Democracy. Buchel is an installation artist who allegedly did not finish an installation piece. The MOCA wanted the right to display the unfinished installation that it had already spent $300,000 for.

In its brief in support of its summary judgment motion, Mass MOCA's counsel Skadden Arps found a couple of cases for the proposition that "VARA most decidedly does not cover works that do not yet exist." citing Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303, 329 (S.D.N.Y. 1994) rev'd on other grounds, 71 F.3d 77 (2d Cir. 1995) cert. denied, 517 1208 (1996) and Flack v. Friends of Queen Catherine Inc., 139 F. Supp.2d 526 (S.D.N.Y. 2001).

To find out whether the court agree with the argument that VARA did not cover non-existent works, I checked the PACER system for the U.S. District Court of Massachusetts. The court's decision was non-existent.

There was a notice of appeal, appealing from "a final order and/or judgment (or alternatively, order denying injunctive relief) announced from the bench on the 21st day of September, 2007 by the Honorable Michael A. Ponsor (1) denying Buchel's motion for summary judgment and request for injunctive relief under . . . . VARA . . . 17 U.S.C. Section 106A, and the Copyright Act Section 101 et seq. and (2) granting plaintiff's relief in its entirety, allowing it to display the work at issue with a disclaimer."

Practice Point: When a judge rules from the bench, counsel can do three things to get a piece of paper from which to appeal. First, order an expedited copy of the transcript from the court reporter. 1. submit the transcript to the judge and ask the judge to "so order" it; 2. submit a proposed order to the judge according to the judge's rules or 3. ask the judge whether the judge will be issuing a written order or decision so that you can appeal it.

Appeals generally require an appealable paper, that is, an existing written decision from a judge from which you appeal. It is analogous to the fixation requirement in copyright law.

Submitting a proposed order is generally the best and most elegant way of proceeding, and if it is not life or death and the court's discussion was lengthy, it will almost certainly help your accuracy to have the transcript. It allows you to get back to your office, clear your mind, and draft something that will make the court's decision clear. It also may be an opportunity to clarify an issue that you were not clear on from the court's oral comments.

I can't wait to see Mass MOCA's display of this non-existent work, to which VARA does not apply, and to see the disclaimer.

Some of the artist's demands in pursuing the work are found at Exhibitionist.

-The artist will not give permission to show an unfinished project nor will the artist allow the museum to show any work in progress, as the museum had suggested in previous discussion related to the postponed opening date.
- Money needs to be raised and in place to finish the project as it was proposed and completed.
- A projected budget for the second round will be sent, if an updated to punch list with very detailed photographs of the installation and the updated list of items that have been organized has been sent.
- The additional monies raised must cover the costs for ALL elements and ALL structural elements, which are clearly defined and which were much discussed. This money would have to cover the cost of the salaries, flights, per diem and housing for the 1st and 2nd round for assistants and the replacement crew and equipment to be hired.
- There is NO negotiation about the scope of the project. It will be realized as proposed.

Sounds like the non-existent Training Ground for Democracy has lessons for us all about the nature of democracy. The above photograph (of the non-existent exhibit) is found on Mass Moca's website. Does a photograph of a non-existent work exist? For more on Buchel, his work and the case, check out Anaba.