## Facts

- Chapman Kelley, an artist, received permission in 1984 from the Chicago Park District to install “Wildflower Works,” a large wildflower display in Grant Park consisting of two large elliptical planted beds intended as “living art.”
- The Park District renewed permits annually until 1994; thereafter Kelley continued maintaining the installation without formal renewals.
- In 2004, the Park District substantially altered the installation by reducing its size, changing the beds from ovals to rectangles, and reconfiguring the overall design, despite Kelley’s objections.
- Kelley sued alleging (1) violation of the Visual Artists Rights Act of 1990 (VARA) based on the “right of integrity,” and (2) breach of an implied contract based on assurances that no new permit was needed and the work would not be altered without notice.
- After a bench trial, the district court rejected the VARA claim and found an implied contract, awarding $1 in nominal damages.
- Both parties appealed.

## Issues

1. Whether a living garden installation qualifies as a copyrightable “work of authorship” fixed in a tangible medium and thus can be a “work of visual art” protected by VARA.
2. Whether “site-specific” art is categorically excluded from VARA protection.
3. Whether statements by a Park District commissioner created an enforceable contract binding the Park District.

## Decision

- The Seventh Circuit affirmed judgment for the Park District on the VARA claim but on different grounds than the district court.
- The court held that a living garden is not copyrightable because it fails copyright’s requirements of expressive human authorship and fixation; therefore it is not protected by VARA.
- The court rejected the district court’s conclusion that the work lacked originality and expressed doubt that site-specific art is categorically outside VARA, but found those questions unnecessary to resolve.
- The court reversed the contract judgment for Kelley, holding that a single commissioner lacked authority to bind the Park District without board approval; thus no valid contract existed.

## Legal Principles

- VARA supplements the Copyright Act and applies only to works that are copyrightable in the first instance.
- Copyright protection requires human expressive authorship and fixation in a tangible medium that is sufficiently permanent or stable to be perceived or reproduced for more than transitory duration.
- A living garden’s form and appearance are materially shaped by natural forces and continual change, defeating the required authorship and stable fixation for copyrightability.
- Municipal entities are not bound by purported agreements made without the contracting authority required by law; assurances by an individual official do not create an enforceable contract absent the entity’s required approval.

## Conclusion

The Seventh Circuit held that a large, designed living garden is not copyrightable because it lacks the required human authorship and stable fixation, placing it outside VARA’s protection, and it also held the Park District was not contractually bound where an individual commissioner lacked authority to make the alleged agreement.


Kelley v. Chi. Park Dist., 635 F.3d 290 (7th Cir. 2011)