Kelley v. Chicago Park District
635 F.3d 290
7th Cir.2011Background
- Kelley, a recognized landscape artist, installed a large outdoor wildflower display in Grant Park (Wildflower Works) in 1984 with Park District permit, later reduced in size and altered in 2004; the Park District terminated the permit in 1988 but Kelley continued planting without a formal permit thereafter.
- Kelley sued for VARA moral-rights violations (integrity) and breach of contract; district court held Wildflower Works lacked copyright originality and possibly site-specific art excluded from VARA, and entered nominal damages on the contract claim.
- District court found Wildflower Works was a painting and a sculpture but not sufficiently original for copyright; it also relied on Phillips to conclude site-specific art is categorically excluded from VARA.
- Kelley challenged VARA eligibility and originality; Park District cross-appealed on the contract claim, arguing Burroughs’s remark created no valid contract and Commissioner's authority to bind the District was lacking.
- On appeal, the Seventh Circuit addressed VARA’s scope, originality, fixation requirements, and site-specific art considerations, and reviewed the contract issue de novo for regulatory authority issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| VARA eligibility for Wildflower Works as a work of visual art | Kelley contends Wildflower Works qualifies under VARA as painting/sculpture. | Park District argues it may be excluded as site-specific or non-original. | Not copyrightable; not a fixed, authored work. |
| Originality and fixation in copyright analysis | Kelley asserts some minimal originality and expressive arrangement. | Park District disputes originality and fixation due to living garden nature. | Living garden cannot satisfy authorship/fixation for copyright. |
| Site-specific art and VARA public-presentation/building exceptions | VARA may apply to site-specific art; exceptions limited. | Phillips excludes site-specific art from VARA protection. | Not decided; safety valves exist but site-specific treatment unresolved. |
| Park District authority to bind by unilateral commissioner action (contract claim) | Burroughs’s remark created implied contract protecting notice before alteration. | Ultra vires because only the Board may bind the District. | Judgment for Kelley on contract reversed; Park District entitled to judgment. |
Key Cases Cited
- Feist Publ'ns., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (U.S. 1991) (Originality as a minimal requirement for copyright)
- Schrock v. Learning Curve Int'l, Inc., 586 F.3d 513 (7th Cir. 2009) (Copyright eligibility treated as a legal issue on review)
- Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128 (1st Cir. 2006) (Site-specific art questioned under VARA)
- Carter v. Helmsley-Spear, Inc., 71 F.3d 77 (2d Cir. 1995) (Moral rights concept genetic origin; attribution and integrity)
- Toney v. L'Oreal USA, Inc., 406 F.3d 905 (7th Cir. 2005) (Fixation/conceptual works; human authorship requirement)