Chapman Kelley Opening Brief in the 7th Cir April 13 2009

IN THE UNITED STATES COURT OF APPEALSFOR THE SEVENTH CIRCUIT

No. 08-3701 & 08-3712

Chapman Kelley,

Plaintiff - Appellant,Cross-Appellee,

v.

Chicago Park District,

Defendant - Appellee,Cross-Appellant.

) Appeals from the United States District Court) for the Northern District of Illinois,) Eastern Division

))))))))))))

) -

)

David H. Coar, Judge

District Court Case No. 04-CV-07715

U.S.C.A. - 7th CircuitRECEIVED

APR 1 3 2009 RJT

GINO J. AGNELLOCLERK

OPENING BRIEF OF APPELLANT CHAPMAN KELLEY

Alex L. Karan (ARDC No. 6272495)Micah E. Marcus (ARDC No. 6257569)Hector C. Bove (ARC No. 6295946)KIRKLAND & ELLIS LLP300 North LaSalle

Chicago, Ilinois 60654(312) 862-2000 (telephone)(312) 862-2200 (facsimile)

Counsel for Appellant Chapman Kelley

DATED: April 13, 2009

DISCLOSURE STATEMENT

Appellate Court No: 08-3701 & 08-3712

Short Caption: Chapman Kelley v. Chicago Park District

To enable the judges to determine whether recusal is necessary or appropriate, an attorney for anon-governental party or amicus curiae, or a private attorney representing a government pary, mustfurnish a disclosure statement providing the following information in compliance with Circuit Rule 26.1and Fed. R. App. P. 26.1.

The Court prefers that the disclosure statement be fied immediately following docketing; but, thedisclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response,petition, or answer in this court, whichever occurs first. Attorneys are required to file an amendedstatement to reflect any material changes in the required information. The text of the statement must alsobe included in front of the table of contents ofthe party's main brief. Counsel is required to completethe entire statement and to use N/ A for any information that is not applicable if this form is used.

(1) The full name of every party that the attorney represents in the case (if the party is acorporation, you must provide the corporate disclosure information required by Fed. R. App. P.26.1 by completing item #3):

Chapman Kelley

(2) The names of all law firms whose partners or associates have appeared for the party in thecase (including proceedings in the district court or before an administrative agency) or areexpected to appear for the party in this court:

Kirkland & Ellis LLPLaw Office of Frank P. HernandezLaw Office of Susan Hays PCLaw Offce of Richard C. Balough

(3) If the party or amicus is a corporation:

i) Identify all its parent corporations, if any; and

N/A

ii) list any publicly held company that owns 10% or more of the party's or amicus' stock:

N/A ~Attorney's Signature: ~ L .~~ Date: April 13, 2009

Attorney's Printed Name: Alex L. Karan

Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d).Yesl No

Address: 300 North LaSalle

Chicago, IL 60654

Phone Number: (312) 862-2000 Fax Number:

E-Mail Address:alex.karanêkirkland.com

ii

(312) 862-2200

STATEMENT REGARDING ORAL ARGUMENT

Appellant, Chapman Kelley, respectfully requests oral argument pursuant to Circuit

Rule 34(f). The arguments of counsel at oral argument would advance the decisional process of

determining whether the District Court erred in not extending copyrght and V ARA protection to

Wildflower Works.

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TABLE OF CONTENTS

Page

DISCLOSURE STATEMENT ..................................................................................................... i

STATEMENT REGARDING ORAL ARGUMENT ...............................................................ii

TABLE OF CONTENTS ............................................................................................................ iv

TABLE OF AUTHORITIES ...................................................................................................... vi

JURISDICTIONAL STATEMENT .............................................................................................1

STATEMENT OF THE ISSUES..................................................................................................1

STATEMENT OF THE CASE.....................................................................................................1

STATEMENT OF THE FACTS ..................................................................................................2

SUMMARY OF THE ARGUMENT .........................................................................................10

ARGUMENT ................................................................................................................................12

I. THE DISTRICT COURT ERRD BY FINDING THAT WILDFLOWERWORK WAS NOT SO "ORIGINAL" AS TO BE COPYRIGHTABLE.................12

II. THE DISTRICT COURT ERRD IN FINDING THAT VARA DOES NOTPROTECT SITE-SPECIFIC ART.................................................................................16

III. THE PARK DISTRICT'S ACTIONS CONSTITUTED A VIOLATION OFV ARA ................................................................................................................................23

IV. THE DISTRICT COURT ERRED IN FINDING THAT CHAPMANKELLEY FAILED TO PRESENT SUFFICIENT EVIDENCE TOCALCULATE DAMAGES FOR THE CITY'S BREACH OF CONTRACT ...........24

CONCLUSION ............................................................................................................................25

CERTIFICATE OF COMPLIANCE ........................................................................................27

iv

CIRCUIT RULE 30(D) STATEMENT .....................................................................................28

CIRCUIT RULE 31(E) CERTIFICATION ..............................................................................29

CERTIFICATE OF SERVICE ..................................................................................................30

v

TABLE OF AUTHORITIES

Page

Cases

Alfred Bell & Co. v. Catalda Fine Arts,Inc., 191 F.2d 99 (2d Cir. 1951) .......................................................................................16

Burrow-Giles Lithographic Co. v. Sarony,111 U.S. 53 (1884)............................................................................................................ 13

Feist Publ 'ns, Inc. v. Rural TeL. Servo Co.,

499 U.S. 340 (1991)........................................................................................ 13, 14, 15, 16

In re Trade-Mark Cases,100 U.S. 82 (1879)............................................................................................................ 13

JCW Invs., Inc. v. Novelty, Inc.,482 F.3d 910 (7th Cir. 2007) ............................................................................................13

Kelley v. Chicago Park Dist.,No. 04C07715, 2008 WL 4449886 (N.D. Il. Sept. 29, 2008)................................... passim

Kraft, Inc. v. Edgar,138 Ill.2d 178,561 N.E.2d 656 (1990)............................................................................. 20

Phillps V. Pembroke Real Estate, Inc.,459 F.3d 128 (1st Cir. 2006)...................................................................................... passim

Pioneer Bank & Trust Co. v. Seiko Sporting Goods, Co.,184 Il.App.3d 783,540 N.E.2d 808 (1st Dist. 1989)....................................................... 25

Pivot Point Intl, Inc. v. Charlene Prods., Inc.,

372 F.3d 913 (7th Cir. 2004) ............................................................................................ 13

Roulo v. Russ Berrie & Co.,886 F.2d 931 (7th Cir. 1989) ............................................................................................ 14

Runstadler v. MCM Ltd. P'ship,768 F.Supp. 1292 (N.D. IlL. 1991) .................................................................................... 14

Theotokatos V. Sara Lee Pers. Prods.,971 F.Supp. 332 (N.D. IlL. 1997) ...................................................................................... 14

Washington Courte Condo. Assoc. v. Washington-Golf Corp.,267 Il.App.3d 790, 643 N.E.2d 199 (1st Dist. 1994).......................................................25

VI

Statutes

17 U.S.C. § 102................................................................................................................... 1, 13, 16

17U.S.C. § 102(a)........................................................................................................................13

17 U.S.C. § 1 06A............................................................................................................................ 1

17 U.S.C. § 106A(a) ..................................................................................................................... 19

17 U.S.C. § 106A(a)(I)................................................................................................................. 18

17 U.S.C. § 106A(a)(3)................................................................................................................. 18

17 U.S.C. 106(A)(c)(2) ................................................................................................................. 20

28 U.S.C. § 1291............................................................................................................................. 1

28 U.S.C. § 1331.............................................................................................................................1

28 U.S.C. § 1367 ............................................................................................................................. 1

Other Authorities

Off of the Pedestal and Into the Fire: How Phillips Chips Away at the Rights of Site-Specific Artists,35 Fla. St. U. L. Rev. 167 (2007)...................................................................................... 18

U.S. CONST.

ar. I, § 8, cl. 8 ................................................................................................................... 13

Visual Arists Rights Act............. ................................. ............. .................... ................. ....... passim

VB

JURISDICTIONAL STATEMENT

The District Court had jurisdiction over this civil action under the Court's federal

question jurisdiction pursuant to 28 U.S.c. § 1331, and supplemental jurisdiction pursuant to

28 U.S.C. § 1367.

The United States Court of Appeals for the Seventh Circuit has jurisdiction over this

appeal pursuant to 28 U.S.C. § 1291 as an appeal over a final decision of a district court. The

United States District Court for the Northern District of Ilinois, the Honorable David H. Coar

presiding, entered final judgment disposing of all claims on September 29,2008, which Plaintiff

now appeals. Mr. Kelley filed his notice of appeal on October 23, 2008.

STATEMENT OF THE ISSUES

1. Whether the District Court erred in finding that Wildflower Works by Chapman Kelley, anestablished work of fine art, was not subject to copyrght protection under 17 U.S.c. § 102because it was not an original work of authorship.

2. Whether the District Court erred in finding that Wildflower Works is not subject toprotection under the Visual Arists Rights Act because the statute does not protectsite-specific art.

3. Whether the District Court erred in finding that the evidence presented by Chapman Kelleywas insufficient to establish damages from the City's breach of contract.

STATEMENT OF THE CASE

Chapman Kelley brought this case against the Chicago Park District to redress violations

of his rights under the Visual Arists Rights Act (hereinafter "VARA"), 17 U.S.C. § 106A. On

November 30, 2004, Chapman Kelley brought action against the Chicago Park District in the

United States District Court for the Northern District of Ilinois on four counts. (PI's. Orig.

Compl., A0227-304.)! Counts I and II alleged that the Chicago Park District violated

"A" citations are to the Appendix to the Opening Brief of Appellant Chapman Kelley.

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Mr. Kelley's rights under the Visual Artists Rights Act when it destroyed his Wildflower Works

installation. (Id. at irir 38-45, A0234.) Count III alleged that the Chicago Park District's

destruction of Mr. Kelley's Wildflower Works constituted an unlawful taking and that he was

entitled to just compensation. (Id. at irir 46-50, A0237.) Count iv alleged a breach of contract

claim because of the actions taken by the Chicago Park District. (Id. at irir 51-55, A0237-38.)

On September 29, 2008, the District Court ruled in favor of the Chicago Park District on

Counts i and II finding that despite meeting the definition of a work of visual art under V ARA,

Wildflower Works was not protected because it was not a copyrghtable original work of

authorship. (Kelley v. Chicago Park Dist., No. 04C07715, 2008 WL 4449886, Slip Opin., *5-6

(N.D. IlL. Sept. 29, 2008).) Additionally, the court held that Wildflower Works was a

"site-specific" work of visual art and that, as such, it was not subject to protection under V ARA.

(Id. at *6-7.) The court found in favor ofMr. Kelley on Count iV, ruling that an implied contract

was created between Chapman Kelley and the Chicago Park District, which the Park District

subsequently breached. (Id. at *7-9.) Despite finding that a breach of contract occurred, the

court held that Mr. Kelley was unable to prove his damages to a reasonable degree of certainty

and only awarded him the nominal sum of$1. (Id. at *9.) Count III was dismissed in a separate

order by the court. (Id. at *1.) Mr. Chapman Kelley now timely appeals the District Court's

September 29,2008 order to the 7th Circuit.

STATEMENT OF THE FACTS

Chapman Kelley is an internationally renowned artist by training and trade, having been

represented in public and private collections in at least eighteen states and three foreign

countries. (A0001-11.) He has studied at both the Hugo D. Pohl Art School in San Antonio,

Texas and the Pennsylvania Academy of Fine Arts, where he was the two-time recipient of their

2

prestigious Wiliam Emlen Cresson European Traveling Scholarship. (A0002.) Throughout his

illustrious career, Mr. Kelley has been the recipient of numerous awards and honors for his

artwork, such as the Biannual Citation in Art, S.J. Wallace Truman Price, and the Childe Hassam

Purchase from the American Academy of Arts and Letters. (AOOOI-2.). He has been a guest

lecturer at numerous universities such as the School of the Museum of Fine Arts in Boston,

Massachusetts, Yale University's School of Art and Architecture, and the School of the Art

Institute in Chicago, Ilinois. (A0010-11.) A defining characteristic ofMr. Kelley's arwork is

the use of bold ellipse-shaped outlines featuring portraits of landscapes and wildflowers.

(A0012-14.) Beginning in the late 1970s, Mr. Kelley began to expand his palette beyond the

canvas, experimenting with large, outdoor pieces of ar incorporating live flowers and plants.

(A0026-27.) In 1976, Mr. Kelley created his first outdoor wildflower installation at the Dallas-

Fort Worth International Airport. (Id.) He later created a second wildflower installation in 1982

at the Dallas Museum of Natural History. (Id.) Through these installations, Mr. Kelley sought to

create a striking new form of art that would incorporate both living and non-living materials, in

an aesthetically pleasing and environmentally-conscious form. (!d.) He sought to expand his

artistic vision of wildflowers and landscapes and physically transform his paintings into

3-dimensional creations.

In 1983, Mr. Kelley was invited by Bonnie and John Swearingen to Chicago for the

purpose of creating and installing one of his wildflower exhibits in the city. (AOI13; A0358.)

Intrigued by the idea, Mr. Kelley traveled to the city and began to extensively tour the area via

plane, helicopter, car, and foot searching for a possible location to install an ar exhibit that was

to be the culmination of his artistic vision. (AOI82-83.) He explored and investigated several

areas, such as Grant Park, Michigan Avenue, Dvorak Park, Oak Park, and Columbus Park before

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finally settling on Daley Bicentennial Plaza in Grant Park. (A0184-85.) Having decided that

Chicago would be a fantastic location to display his work, concept and artistic vision, in

December of 1983, Mr. Kelley met with officials from the Chicago Park District and presented

his plan for a wildflower exhibit in Daley Bicentennial Plaza entitled Wildflower Works.

(AOI25-26; A0358.) At the presentation, Mr. Kelley explained to the members of the Park

District his vision and showed them examples from his installations in Dallas explaining to them

that he was experimenting with new mediums and moving beyond 2-dimensional paintings. (Id.)

Shortly after Mr. Kelley's presentation, the Chicago Park District enthusiastically approved of

the plan presented by Mr. Kelley, and subsequently granted Mr. Kelley a formal permit to begin

a permanent installation of Wildflower Works in Daley Bicentennial Plaza on June 19, 1984.

(Id.; A0029; A0229.) Under the terms of the permit issued and authorized by the Chicago Park

District, Mr. Kelley was to install and maintain Wildflower Works at his own expense. (Kelley

v. Chicago Park Dist., No. 04C07715, 2008 WL 4449886, Slip Opin., *1 (N.D. IlL. Sept. 29,

2008).) Mr. Kelley chose to finance the project himself, at a cost of approximately one millon

dollars, because he wanted to provide the city with the beauty of his art and educate others

regarding his new environmentally-conscious use of wildflowers as art. (A0216-7.) A second

provision of the permit gave the Park District the option of terminating the installation with a 90-

day notice to Mr. Kelley for the purpose of removing his exhibit. (Kelley, 2008 WL 4449886, at

*1.)

In June of 1984, once the permit was granted, Mr. Kelley began the installation of

Wildflower Works, conceived and executed as two elliptical shapes created by steel and gravel

edging surrounding two beds of wildflowers, covering approximately 1.5 acres. (A0139; A0020;

A0024-25; A0358.) In previous paintings, Mr. Kelley made frequent use of ellptical shapes and,

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as such, he considered them his trademark symboL. (AOOI2-14.) As Mr. Kelley testified at trial,

many of his paintings contained figurative elements, depictions of wildflowers, and

non-figurative elements, the space outside of his elliptical boundaries. (AOI38-39.) Through the

use of the steel and gravel boundaries, he created these same figurative and non-figurative

elements in constructing Wildflower Works. (Id.) Another major component for Mr. Kelley in

creating Wildflower Works was to create a work of art that was not only aesthetically beautiful,

but was also environmentally conscious. (A0026.) Likewise, he wanted to incorporate the City

of Chicago in his art piece. (A0135.) As a result of this aristic outlook, he chose approximately

sixty species of wildflowers with extreme care, choosing wildflowers that were native to the

Chicago region. (AOI51.) One of the centerpieces of the exhibit was the Alium Cerum, the

Wild Nodding Onion, the namesake of Chicago. (A0135; A0024-25; AOI57.) His use of these

native wildflowers incorporated an environmental consciousness into the exhibit because they

didn't need water, fertilizer, or insecticides. (A0153.) They also featured a degree of self

sustainability. (!d.)

Using his own money, Mr. Kelley purchased between 200,000 and 380,000 wildflower

plugs at a cost of between $80,000 and $152,000. (A0138; A0231.) Each ellipse was then

carefully designed by Mr. Kelley to feature an outer band of wildflowers that would increase in

color intensity as one moved towards the center of the ellipse. (A0022.) The outer band of

wildflowers was designed by Mr. Kelley to be five feet in width, increasing to a second ten foot

inner band, and a third fifteen foot innermost band. (Id.) In the blossoming of the various

species of wildflowers with the carefully-planned exhibit, Mr. Kelley sought to create a painting

in three dimensional form. (AOI36.) The colors used in the northern ellipse were designed by

Mr. Kelley to evoke a sense of coolness while the southern ellipse would be warmer in character.

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(A0022.) It was a very planned and controlled environment. In fact, before the first planting,

Mr. Kelley had the flowers aranged by color and location. (AOI54.) He cut out holes in the

cloth that was to be overlaid the Wildflower Works ground then he gave very specific

instructions regarding the type of wildflower to be planted in each hole. (ld.) As a result of this

planning, Wildflower Works featured a process known as "sequential blossoming" so that the

exhibit would continually change through the Chicago seasons. (A0136.) In the summer the

exhibit would resemble a painting, while in the winter it would take on more of a sculptural feeL.

(AOI49.) Wildflower Works was designed by Mr. Kelley to "be (as) carefully controlled in

design, time and color transition as a pointillist painting." (A0022.)

Chapman Kelley, along with a team of volunteers, initially planted the seeds and

wildflower plugs according to his designs and then carefully cultivated and pruned the plants

until his installation was changed by the Chicago Park District in 2004. (AOI54.) For several

months out of the year Mr. Kelley and his team of volunteers from all over the city of Chicago

donated their time to ensuring that Wildflower Works stayed within Mr. Kelley's original artistic

vision of a beautiful, environmentally-and people-frendly piece of art. (A0022-24.)

Wildflower Works garnered tremendous amounts of positive attention from both city and

state officials as well as the national media. (Kelley, 2008 WL 4449886, at *2.) Even before the

completion of Wildflower Works, the Chicago Park District issued a press release stating that

"( 0 )nce the ovals mature, the results wil be two breathtaking natural canvases of Kelley-

designed color patterns." (A0022.) The Superintendent of the Chicago Park District stated in a

1984 press release that the installation would "lend a dramatic impact on the overall aesthetics of

the Grant Park/downtown/lakefront area as well as attract millions of visitors annually."

(A0020.) In a letter dated November of 1985, then Mayor of Chicago, Harold Washington,

6

expressed his gratitude to Chapman Kelley for providing the city with "a magnificent piece of

art." (A0028.) The Ilinois Senate passed a resolution praising Chapman Kelley's Wildflower

Works stating that Mr. Kelley had "transformed Chicago's Grant Park into a showcase for a new

form of living ar." (AOOI7-18.) It furthermore hailed Mr. Kelley as "a pioneer in the use of

natural materials" and held that "Grant Park (would) be the first park district in the United States

to display a live wildflower work of art of this scale." (Id.) The New York Times praised

Wildflower Works and Chapman Kelley in its article "Wildflowers as Art for a Chicago Park."

(A0026.) Similarly, the Christian Science Monitor covered Wildflower Works and Mr. Kelley in

its article "Arist Finds His Wildflowers are Growing on Chicago." (A0027.)

In addition to its widespread critical acclaim, Wildflower Works was extremely well

received by the general public and has received millions of visitors since it was first created in

1984. Once the exhibit was up and running, random people would stop Mr. Kelley on the street

to discuss it or even approach him at restaurants with gifts of gratitude. (AOI40.) He would

often lead tours of the exhibit himself, wanting not only to showcase the beauty of Wildflower

Works, but educate people about the nature of wildflowers and their relationship to the

environment. (Id.)

Because of the enormous success enjoyed by Wildflower Works, the Chicago Park

District annually extended Mr. Kelley's permit. Suddenly, on June 3, 1988, despite the

significant amount of praise and attention received by Wildflower Works, the Executive Vice

President of the Chicago Park District, Jesse Madison, decided to terminate Chapman Kelley's

permit for Wildflower Works. (A0031.) Because of the Park District's abrupt termination of his

permit, Mr. Kelley sued the Chicago Park District in the Northern District of Ilinois, No. 88 CV

6619. Chapman Kelley and the Chicago Park District subsequently reached a settlement to

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extend the permit for Wildflower Works another year. (A0032; A0359.) As part of the new

permit, Mr. Kelley was to have full responsibility and control regarding any matters for the

aesthetic design and content of Wildflower Works. (Id.) While the new permit did not contain

the 90-day termination clause, it did state that Mr. Kelley could remove his installation if the

permit was not extended by September 1, 1989. (A0033.) Mr. Kelley's permit for Wildflower

Works continued to be offcially extended by the Chicago Park District until 1994. (A0037-46.)

After the last official permit was issued in 1993, Wildflower Works continued to remain in

existence and attract thousands of visitors, all without any actions or complaints from the Park

District. (A0131-32.) In fact, Mr. Kelley and his group of volunteers continued to maintain and

cultivate Wildflower Works for another ten years. (Id.) The permit process was always

instigated by the Chicago Park District. (Id; AOI76.) For ten whole years, Wildflower Works

continued to exist and attract positive attention without a written city permit.

In March of 2004, ten years after the last written city permit was issued, Chapman Kelley

attended a meeting with the President, Jonathan Dedmon, and Secretar, Maurine Slavin, of

Wildflower Works, Inc. and Chicago Park District Commissioner, Margaret Burroughs, to

discuss the installation. (Kelley, 2008 WL 4449886, at *2.) At this meeting, Mr. Dedmon

specifically asked Ms. Burroughs if they needed to apply for a new permit from the Park District,

to which Ms. Burroughs replied "You're stil there, aren't you? That's all you need to do." (Id.)

This statement from the Commissioner of the Chicago Park District was interpreted to mean that

no further action regarding a permit was required. (!d.) She did not ask for them to apply for a

new permit, she did not indicate that a new permit was needed, she did not complain about the

exhibit, nor did she tell the Wildflower Works representatives that the Park District was looking

to change the exhibit. (!d.) The whole point of the meeting, in fact, was to discuss plans for a

8

20th year anniversary celebration that was encouraged by Park Commissioner Burroughs.

9

a letter to the Chicago Park District requesting a meeting with them to discuss the mutilation and

destruction of Wildflower Works, however, he never received a response from the Park District.

(AOIIO; A0235.) Wildflower Works, as conceived by Chapman Kelley, ceased to exist as the

result of the Chicago Park Districts actions. What Chapman Kelley designed as a breathtaking

display of native, self-sustaining flowers arranged in his trademark elliptical format was changed

to blocks of meaningless contents. The native flowers which played a significant part of the

exhibit were replaced. by evergreen hedges and roses. The aesthetic and message of Wildflower

Works was forever altered by the Chicago Park District's actions.

SUMMARY OF THE ARGUMENT

This case has profound implications for artists' rights. The District Court's conclusions

not only denies Chapman Kelley's redress for the mutilation of the work of art central to his

career, but also throws into jeopardy the rights of arists all across the United States. By

adopting its hyper-stringent standard of "originality" and adopting (without any analysis of its

own) the First Circuit's fatally flawed conclusion regarding site-specific art, the District Court

has unduly restricted and thrown into question the rights of arists everywhere. In essence, the

District Court's holdings threatens to unravel the very essence of the Berne Convention and

Congress's intent codifying artists' rights of attribution and integrty with V ARA.

In finding that the Wildflower Works was not subject to copyrght protection, the District

Court invoked a legal standard that bears no relationship to the extremely low threshold for

copyrght protection established by the Supreme Court in Feist. The District Court asked

whether Chapman Kelley was "the first person ever to conceive of and express an arrangement

of growing wildflowers in ellipse-shaped enclosed area." (Kelley, 2008 WL 4449886, at *6.)

The District Court asked the wrong question and got the wrong answer. Based on well

10

established law, the right question is whether Wildflower Works possessed some creative spark,

whether it possessed some minimal degree of creativity. Wildflower Works, which is the

culmination of Chapman Kelley's artistic vision, cultivated over decades of critically acclaimed

work, easily meets this standard. The standard proposed by the District Court, which would

require an originality of even the form of art to justify copyrght protection, was plain error and

should be rejected by this Court.

Similarly, the District Court erred in adopting the First Circuit's conclusion that VARA

does not apply to site-specific ar. The First Circuit reasoned that because VARA's "public-

presentation" exception allows site-specific art to be "conceptually" damaged by relocation,

Congress must have intended for V ARA to offer no protection for site-specific art. This

reasoning is fatally flawed. First, that Congress allowed one type of damage to site-specific ar

(conceptual damage caused by relocation) does not imply that Congress intended to deny all

protection for site-specific art. Second, had Congress intended to exempt all of the site-specific

art that enriches our culture and beautifies our public spaces from VARA's protection, it would

have done so explicitly. Finally, the public-presentation exception itself makes clear that V ARA

otherwise protects site-specific art. The public-presentation exception, by its clear terms,

contemplates a scenaro in which an artist claims the destrction or mutilation of his or her

artwork by its mere relocation. Such a challenge would only come from an artist of site-specific

work. The public-presentation exception would not be necessary if Congress intended for

V ARA to have no application to site-specific art whatsoever. Finally, the evidence in this case

makes clear that the Wildflower Works is not site-specific to the extent that its relocation would

conceptually destroy it. Thus, the First Circuit's reasoning is not only fatally flawed, but is also

completely irrelevant to this case.

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Lastly, the District Court erred in finding that Mr. Kelley failed to prove entitlement to

damages.2 The District Court found sufficient evidence to conclude the value of the flowers that

had been removed and destroyed by the Park District. Nonetheless, the District Court found that

it could not determine damages because there was no evidence of what Mr. Kelley's cost of

removal of the flowers would have been had he actually been afforded the opportunity to remove

his property. The evidence before the Court made the cost of removing the plants irrelevant:

Mr. Kelley had amassed a literal army of volunteers over the years that had tended and cared for

Wildflower Works over the past twenty-some years. These volunteers would have been happy to

help Mr. Kelley remove his artwork rather than see it destroyed. Moreover, in placing the

burden on Mr. Kelley to disprove costs he saved by virte of the Park District's breach, the

District Court got the law of Ilinois backwards. Upon a plaintiff presenting evidence that

establishes its total potential damages, it is black-letter law that the burden of proof is on the

defendant to show.what damages the plaintiff avoided as a result of the defendant's breach.

ARGUMENT

I. THE DISTRICT COURT ERRED BY FINDING THAT WILDFLOWER WORKWAS NOT SO "ORIGINAL" AS TO BE COPYRIGHTABLE

While the District Court correctly ruled that Wildflower Works could be considered art-

either a painting or a sculpture-it erred in finding that it was not subject to copyrght protection.

Kelley v. Chicago Park Dist., No. 04C07715, 2008 WL 4449886, Slip. Opin., *5 (N.D. IlL.

Sept. 29, 2008). In that regard, the Court concluded that there was nothing "inherently original

about Wildflower Works." !d. The District Court was wrong. Chapman Kelley's Wildflower

2 Because the District Court determined that the Wildflower Works was not protected by V AR, it never reachedthe issue of damages to which Kelley was entitled under V AR. In addition to concluding that V ARprotected the Wildflower Works and that the Park Distrct violated Kelley's rights under V AR, this Courtshould remand to the Distrct Court for the determination of damages for violation of V AR.

12

Works is subject to copyrght protection under 17 U.S.C. § 102 because it clearly exceeds the

"extremely low" threshold of an original work of the artist as defined by the Supreme Court.

Feist Publns, Inc. v. Rural Tel. Servo Co., 499 U.S. 340, 345 (1991) (holding threshold for

creativity is "extremely low" and hence "the vast majority of works make the grade quite easily,

as they possess some creative spark."); see also JCW Invs., Inc. v. Novelty, Inc., 482 F.3d 910,

914 (7th Cir. 2007) (holding that copyrght protection simply requires only a minimal degree of

creativity); Pivot Point Intl, Inc. v. Charlene Prods., Inc., 372 F.3d 913, 929 (7th Cir. 2004)

("To merit protection from copying, a work need not be particularly novel or unusuaL")

In order for a painting or a sculpture to acquire copyrght protection they must be

"original works of authorship." 17 U.S.C. § 102(a). This originality requirement is rooted in the

Constitution which authorizes Congress "(tJo 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. I, § 8, cl. 8. While the Supreme Court has held that

the term writings can be liberally construed, they must be original and "founded in the creative

powers of the mind." In re Trade-Mark Cases, 100 U.S. 82,94 (1879); see also Burrow-Giles

Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884) (holding that originality is the cornerstone

for extending copyrght protections). "The originality requirement in In re Trade-Mark Cases

and Burrow-Giles remains the touchstone of copyrght protection." Feist, 499 U.S. at 347.

To encourage such creative endeavors, the threshold of "originality" for purposes of

copyrght protection has not been set high. To the contrary, "original" means no more than "the

work was independently created by the author. . . and that it possesses at least some minimal

degree of creativity." !d. at 345; JCW Invs., 482 F.3d at 914 (holding copyrght protection

requires minimal degree of creativity); Pivot Point, 372 F.3d at 929 ("To merit protection from

13

copying, a work need not be particularly novel or unusuaL") Indeed, as held by the Court in

Feist, the threshold for creativity is "extremely low" and hence "the (v)ast majority of works

make the grade quite easily, as they possess some creative spark." Feist, 499 U.S. at 345.

Here, Wildflower Works clearly makes the grade as "original" under this minimal

threshold. To that end, Runstadler v. MCM Ltd. P'ship, 768 F.Supp. 1292 (N.D. IlL. 1991), is

highly instructive. In Runstadler, the plaintiff created a sculpture of 39 clear glass rectangles

arranged in a spiral form, which the defendant claimed was not copyrghtable because it lacked

originality and creativity. 768 F.Supp. at 1295. The court, however, ruled that the sculpture

possessed the minimum level of creativity to qualify as original because "(t)he choice of

location, orientation, and dimensions of the glass panes, and the degree of arc of the spiral, show

far more than a trivial amount of intellectual labor and artistic expression." Id. at 1295-96; see

also Theotokatos v. Sara Lee Pers. Prods., 971 F.Supp. 332, 339 (N.D. Il. 1997). The defendant

additionally argued that the sculpture did not deserve copyrght protection because it was simply

a combination of uncopyrghtable shapes. Id. at 1295. The court held that "combinations of

standard shapes may possess the requisite creativity necessary for protection." !d.; see also

Roulo v. Russ Berrie & Co., 886 F.2d 931, 939 (7th Cir. 1989) ("While it is true that these

elements are not individually capable of protection . . . it is the unique combination of these

common elements which form the copyrghted materiaL.").

Similar to the sculpture in Runstadler, Chapman Kelley evinced a "far more than a trivial

amount of intellectual labor and artistic expression," in designing, creating, and maintaining

Wildflower Works. 768 F.Supp. at 1295-96. Wildflower Works was not born in 1984. Rather,

the artistic vision was the culmination of over a decade's worth of Mr. Kelley's paintings.

(A0026-27.) For decades, Mr. Kelley painted his vision of wildflowers encapsulated by elliptical

14

forms. (A0012-14.) These works are among his most sought after and collected pieces. In

creating Wildflower Works, Mr. Kelley chose to apply this artistic vision, using the ground as his

substrate and flowers as his paint. (A0136.) He designed and installed two enormous metal

ellipses (each the size of a football field) running north to south, with one below the other.

(A0139, A0020, A0024-25; A0358.) Within each ellipses, he carefully designed a schematic

that featured a five foot outer band of white wildflower, increasing in color intensity to a second

ten foot middle band, and finally settling on the brightest flowers in a centermost fifteen foot

band. (A0022.) Furthermore, he designed each ellipses to be surrounded by a three foot band of

metal and gravel edging. (AOI39.) Finally, Mr. Kelley did not choose his wildflowers

haphazardly, but rather with extreme caution and care. He specifically chose approximately

sixty varieties of wildflowers that not only were native to the Chicago region, but that would also

blossom sequentially through the Chicago seasons so that the exhibit would vary in appearance

as the seasons progressed. (A0022.) In sum, in Wildflower Works, Chapman Kelley created an

art exhibit that was as "carefully controlled in design, time, and color transition as a pointilist

painting." Id.

Accordingly, the District Court clearly erred in finding that Wildflower Works was not an

original work and therefore not subject to copyrght protection. Kelley, 2008 WL 4449886, at

*5. In paricular, the lower court mistakenly held that "(i)t is not clear what about the exhibit is

originaL. Is it the elliptical design? The size? The use of native instead of non-native plants?"

Id. at *6. The District Court further stated that "Kelley leaves this Court to assume that he is the

first person to ever conceive of and express an arrangement of growing wildflowers in ellipse-

shaped enclosed area." Id. As the Feist decision makes clear, however, "(0 )riginality does not

signify novelty; a work may be original even though it closely resembles other works so long as

15

the similarity is fortitous, not the result of copying." 499 U.S. at 345; see also Alfed Bell &

CO. V. Catalda Fine Arts, Inc., 191 F.2d 99, 102 (2d Cir. 1951) ("No large measure of novelty is

necessary."). Indeed, this Court can take judicial notice of the fact that DaVinci was not the first

person to paint a picture of a woman on a canvass, nor Michaelangelo the first to sculpt a man

out of stone, nor Stephen King the first to write a scary book for that matter. Yet, of course, any

court would be hard-pressed to find that such works of art are not entitled to copyrght

protection.

In sum, the District Court erred in finding that Wildflower Flower works was not subject

to copyrght protection by applying an inapplicable standard of originality that would likely

render most art today not subject to protection. Chapman Kelley's level of design, planing,

control, and execution in Wildflower Works clearly illustrates a significant amount of

intellectual labor and artistic expression that extends far beyond the low level of creativity

required by the Supreme Court under Feist. Wildflowers Works is subject to copyrght

protection under 17 US.C. § 102.

II. THE DISTRICT COURT ERRD IN FINDING THAT VARA DOES NOTPROTECT SITE-SPECIFIC ART

The District Court erred in concluding that VARA's protections were entirely

inapplicable to site-specific art. As discussed above, the court reached this conclusion by

adopting the First Circuit's interpretation ofVARA set-forth in Philips v. Pembroke Real Estate,

Inc., 459 F.3d 128, (1st Cir. 2006), the only decision published to date addressing the

relationship between V ARA and site-specific art. There, the First Circuit concluded that V ARA

does not protect site-specific art. Philips, 459 F.3d at 143. This conclusion misinterprets

V ARA and should be rejected by this Court.

16

In Philips, the artwork at issue consisted of approximately 27 sculptures, including

abstract bronze and granite pieces and realistic bronze sculptures of various aquatic creatures,

located throughout Boston Harbor's Eastport Park. The artist, David Phillips, was also

responsible for the design and installation of stone walls and granite stones inlaid into the park's

walkways. 459 F.3d at 130-31. Several years after its installation, the investment company

charged with managing the park, Pembroke, decided to remove Phillips' sculptures from the

park. Id. Philips sued to prevent removal of his artwork, invoking the protection ofVARA. Id.

The district court concluded, in relevant par, that V ARA protected Phillips' artwork, but that

under the "public-presentation" exception of VARA, Pembroke could remove Phillips' work

from the park consistent with V ARA, so long as Pembroke did not alter, modify, or destroy the

individual pieces comprising Phillips' artwork. Id. at 141. In affirming the district court's

ruling, the First Circuit refused to accept the lower court's logic, and in doing so, embraced a

radical interpretation of V ARA, concluding that V ARA offered no protection at all to site-

specific art.

The First Circuit's basis for this sweeping conclusion-that VARA offers no protection

at all to the site-specific ar found throughout the public spaces of the United States-is

contained in a single sentence of the Philips opinion: "V ARA does not protect site-specific art

and then permit its destruction by removal from its site pursuant to the statute's public-

presentation exception." !d. at 143. The court also found confirmation for its interpretation of

V ARA in the "inescapable" fact that "the concept of site specific art is never mentioned by

name" in VARA's legislative history. Id. at 143, In.12. In both regards, the First Circuit has

profoundly misconstrued V ARA.

17

The fatal flaw in the First Circuit's interpretation of V ARA is the assumption that

VARA's protections are meaningless if the "public-presentation" exception can be used to

remove (and thereby "conceptually" but not physically damage) site-specific art. This is simply

not the case. V ARA, which was enacted by Congress to give effect to the "moral rights"

recognized under the Berne Convention, grants artists the "moral rights" of integrty and

attribution. Rachel E. Nordby, Off of the Pedestal and Into the Fire: How Phillips Chips Away

at the Rights of Site-Specific Arists, 35 Fla. St. U. L. Rev. 167, 178-9 (2007). VARA protects

the moral right of integrty by preventing "any intentional distortion, mutilation, or other

modification of that work which would be prejudicial to (an Artists) honor or reputation" and

"any destruction of a work of recognized stature, and any intentional or grossly negligent

destruction of that work. . ." 17 U.S.C. § 106A(a)(3). VARA protects the moral right of

attribution by giving the artist the right "to claim authorship" of arwork and "to prevent the use

of his or her name as the author of any work of visual art which (the artist) did not create."

17 U.S.c. § 106A(a)(1). An artist's moral right of attribution is also protected by VARA by

giving the artist the right to "prevent the use of his or her name as the author of a work of visual

ar in the event of a distortion, mutilation, or other modification of the work which would be

prejudicial to his or her honor or reputation." Id.

Even a cursory analysis of the protections offered by V ARA makes clear that V ARA

meaningfully protects site-specific art even if its public-presentation exception allows public art

to be removed from its location. The conceptual destruction of a site-specific work of art by its

relocation is far from the only conduct that can be prejudicial to an artist's honor or reputation.

For example, denying an artist the right to claim legitimate authorship of site-specific art could

be prejudicial to an artist's honor or reputation. Similarly, not allowing an arist to prevent the

18

use of his or her name for site-specific artwork that the artist did not create, or a site-specific

work of ar that has been distorted, mutilated, or otherwise modified can be prejudicial to an

artist's honor or reputation. Indeed, VARA meaningfully protects an artist's honor and

reputation by prohibiting such violation of the artist's right of attribution in connection with

either site-specific or non-site-specific art. 17 US.c. § 106A(a).

The same is true of an artist's right of integrty: Site-specific art is just as vulnerable to

acts of distortion, mutilation, or modification which can prejudice an artist's right of integrty as

non site-specific art and which are prohibited by V ARA. A site-specific mural in a public space

is just as vulnerable to mutilation as a painting hanging on the wall of a museum and V ARA

should and does protect both. The only relevant difference between site-specific art and non-

site-specific art as far as V ARA is concerned is that site-specific art is vulnerable to a form of

destrction that is not a threat to non-site specific ar: conceptual damage due to relocation. The

fact that V ARA may not protect site-specific art from conceptual damage due to relocation

simply cannot reasonably be read to imply that Congress intended to deny site-specific art of all

protection altogether. Put another way, that V ARA permits one type of damage to site-specific

art does not suggest that Congress intended to permit any and all types of damage to the honor

and reputation of artists who create the site-specific art-art that, in the words of the First

Circuit, "unmistakably enrches our culture and the beauty of our public spaces." Philips, 459

F.3d at 143.

The case before this Court highlights the extent of the error in the First Circuit's

interpretation of VARA's application to site-specific art. The Park District did not remove and

thereby conceptually damage Wildflower Works. Instead, the Park District did something

equivalent to painting a huge garish mustache on the Mona Lisa-it took a piece of art which

19

contained at its hear a message about the beauty of native and ecologically-sustainable flowers,

and polluted it with non-native resource-intensive shrbbery and roses. The Park District did not

remove and relocate Chapman Kelley's art-instead it distorted and mutilated the Wildflower

Works in the exact location where it has been for decades, eviscerating Mr. Kelley's artistic

intent. However, under the First Circuit's interpretation of VARA, the Park District would be

free not only to mutilate the Wildflower Works (and any other site-specific ar, e.g. placing

Mickey Mouse ears on the "Bean" in Milennium Park) but also to keep claiming that the

mutilated ar was the product of Chapman Kelley. Congress intended no such thing. VARA's

public-presentation exception was not intended to rob site-specific art of all protection.

Indeed, the public-presentation exception of V ARA itself confirms that Congress

intended VARA to protect site-specific art. The public-presentation exception states:

The modification of a work of visual ar which is a result ofconservation, or of the presentation, including lighting and

placement, of the work is not a destruction, distortion, mutilation,or other modifications described in subsection (a)(3) unless themodification is caused by gross negligence.

17 U.S.c. 106(A)(c)(2).

The public-presentation exception, by its clear terms, contemplates a scenario in which an

artist claims the destruction or mutilation of his or her artwork by its mere relocation. Such a

challenge would only come from an artist of site-specific work. If such art is not protected at all,

why include the exception? Contrary to the District Court's and the First Circuit's holding, the

clear inference from the inclusion of this "exception" is that Congress contemplated that V ARA

would otherwise protect site-specific art. See Kraft, Inc. v. Edgar, 138 Il1.2d 178, 189, 561

N.E.2d 656, 661 (1990) (holding "(a) statute should be construed so that no word or phrase is

rendered superfluous or meaningless").

20

Similarly, the fact that site-specific art was not mentioned by name in the V ARA or its

legislative history does not support the First Circuit's interpretation of VARA. Indeed, that

"inescapable fact" cuts the other way. Nowhere does the statute purport to limit the scope of its

protections based on an art-form or style. Had Congress intended to entirely exclude from

VARA's protection all of the site-specific art that enrches our culture and the nation's public

spaces, then Congress would have made such an exception explicit. Congress did not. The First

Circuit's cursory conclusion-that art for which complete protection cannot be provided is not

worthy of any protection at all-is directly contrary to the plain language of V ARA and,

therefore, should not be followed by this Court.

In any event, not only is the logic of Philips fatally flawed, the final conclusion in

Philips-that art which can be constructively destroyed by mere relocation is not protected

under VARA-is irrelevant to the facts of the present case. In Philips, the artist argued and the

court focused on art that was site-specific to the extent that relocation constituted complete

destruction. Philips, 459 F.3d at 134. That is not the case before this Court. Mr. Kelley has not

argued that the Park District would have violated his rights under V ARA by merely removing or

relocating Wildflower Works. To the contrary, he complains that he did not have the notice or

opportnity to move it himself. (AOI74.) Indeed, the evidence adduced at trial confirmed that,

while Wildflower Works was intended to take account of its environment, it was not "site-

specific" to the extent that the mere removal of the project from its location in Grant Park would

result in the destruction of Chapman Kelley's artistic vision. This was the opinion of the artist

himself See A0220-21.

Q. What is site specific?

A. It would be a work that would not be destroyed. That is inseparable from itslocation and support system.

21

Q. Is Wildflower Works in your opinion site specific art?

A. No.

In this regard, the District Court erred by relying upon Mr. Kelley's statements in his

deposition regarding site-specific aspects of his work. Kelley, 2008 WL 4449886 at *6-7.3 As

Mr. Kelley explained at trial, he did not mean site-specific in the sense that it was inseparable

from its location and support system. (A0221-22.)

Q. Do you remember testifying at your deposition that Wildflower Works was sitespecific?

A. Site specific in the sense that if it was changed, it would not be a work of art.Site specific in terms of whether it could be removed, they take up the grass.They have giant machines that take up turf grass, roll it up and sell it and youmove it, and put it somewhere else.

A famous artist, whose work I showed at the gallery, took a meadow in Germanyand took it up and put it on the roof of a museum as a work of art, NewtonHarrson.

Q. Do you remember testifying in your deposition that it was not portable?

A. Well, I didn't understand what sense she was talking about portable. I justexplained that in one way it is, in another way, it is not.

In addition to Mr. Kelly's testimony about his own artwork, the testimony of

Mr. Kelley's expert confirmed that Wildflower Works was not "site-specific" as that term was

defined in Philips. In particular, Jane Jacobs testified that that works like Wildflower Works are

3 The District Court also relied on the steps that Mr. Chapman went through in selecting an appropriate locationfor his work and his incorporation of the Monroe garage vents as "figurative elements in the 'painting. '"Kelley, 2008 WL 4449886 at *7. Again, this reliance was misplaced and contradictory to the actual evidenceproduced at tral. Indeed, Mr. Chapman actually testified that, originally, he preferred another location in GrantPark. (AOI84.) Moreover, while he ultimately chose Grant Park, the park itself was not an essential element ofthe piece, rather: "(He) was simply interested in making a work of art in a place that seemed very appropriateand that had a very good possibility for (him) to make the sort of composition that (he) wanted to make."(A0186; see also AOI84-85.) (explaining Mr. Kelley's willingness to move Wildflower Works, just not to other"silk stocking" neighborhoods).

22

frequently broken down and moved to different locations without any destruction of the artist's

artistic vision. (AOI00; AOI06-07; AOI05.)

In sum, the First Circuit's ruling in Phillps is completely inapposite to the present facts.

While the question of whether V ARA protects against conceptual destruction of art by its mere

movement is an interesting one, it is not one that needs to be answered here.

III. THE PARK DISTRICT'S ACTIONS CONSTITUTED A VIOLATION OF VARA

The Park District neither moved nor requested Chapman Kelley to remove his artwork.

Instead, the Park District distorted and mutilated Wildflower Works where it had sat for twenty

years. The Chicago Park District took Mr. Kelley's carefully designed ellipses and changed

them to rectilinear shapes. (A0208.) The Park District reduced the size of Mr. Kelley's

installation by more than half, from 66,000 square feet to under 30,000 square feet. (!d.)

Furthermore, the Park District removed the metal and gravel edging conceived and painstakingly

installed by Chapman Kelley. (!d.) Midland roses were added around Wildflower Works by the

Park District. (A0213.) What Chapman Kelley designed as a breathtaking display of native,

self-sustaining flowers arranged in his trademark elliptical format was changed to blocks of

meaningless contents. The native flowers which played a significant part of the exhibit were

replaced by evergreen hedges and roses. (Id.) The aesthetic and message of Wildflower Works

was forever altered by the Chicago Park District's actions. All done over Mr. Chapman's

objections while providing him no meaningful opportnity to protect his life's work. (A0174;

A0360.)

For all intent and purposes, the Park District drew a large, garish mustache on

Mr. Kelley's Mona Lisa. Such conduct is clearly not appropriate under the public-presentation

exception. This was a direct violation of Mr. Chapman's rights under V ARA, and he is entitled

23

to recover damages as a result thereof. The District Court's failure to arrve at this conclusion

and to award Mr. Kelley damages was clear error.

iv. THE DISTRICT COURT ERRED IN FINDING THAT CHAPMAN KELLEYFAILED TO PRESENT SUFFICIENT EVIDENCE TO CALCULATE DAMAGESFOR THE CITY'S BREACH OF CONTRACT

The District Court erred in finding that it was unable to reasonably calculate damages

from the Park District's breach of contract. Mr. Kelley presented expert testimony showing that

the total value of all of the flowers in Wildflower Works as of the date of the Park District's

action had a then-existing value of $ 1.5 millon. Kelley, 2008 WL 4449886 at *9. The District

Court further found that approximately 55% of the flowers had been removed and destroyed. !d.

A simple calculation leads to a finding of damages of $825,000.

Nonetheless, the District Court found that it could not determine damages because there

was no evidence of what Mr. Kelley's cost of removal of the flowers would have been had he

actually been afforded the opportnity to remove his property. Id. That is, the Court found that

Mr. Kelley, without being able to show the costs he avoided as a result of the Park District's

breach, was not entitled to any damages. This was clear error.

As an initial matter, the only reasonable conclusion that could have been derived from the

evidence presented to the District Court is that Mr. Kelley would not have had any cost of

removal of his property from the park. Indeed, the evidence at trial demonstrated that Mr. Kelley

had amassed a literal army of volunteers that had tended and cared for Wildflower Works over

the past twenty-some years, for free. It is clear that if faced with the Park District's intentional

mutilation of the ar that they had spent their own blood, sweat, and tears to maintain for over

twenty years, more than a sufficient number of individuals would have volunteered to help

Mr. Kelley remove his artwork rather than see it destroyed.

24

Moreover, though, in placing the burden on Mr. Kelley to disprove costs he saved by

virtue of the Park District's breach, the District Court got the law of Ilinois backwards. Upon a

plaintiff presenting evidence that establishes its total potential damages, it is black-letter law that

the burden of proof is on the defendant to show what damages the plaintiff could mitigate.

Washington Courte Condo. Assoc. v. Washington-Golf Corp., 267 Il1.App.3d 790, 822, 643

N.E.2d 199, 220 (1st Dist. 1994) (holding that "the party asserting non-mitigation of damages

bears the burden of proof as to the extent of non-mitigation") citing Pioneer Bank & Trust Co. v.

Seiko Sporting Goods, Co., 184 Il.App.3d 783, 790, 540 N.E.2d 808, 813 (1st Dist. 1989). It

was not Mr. Kelley's obligation to present evidence of his mitigated costs by virtue of the Park

District's breach. The burden of that evidence lay with the Park District. Washington Courte

Condo. Assoc., 267 Il.App.3d at 819-20.

In that regard, the Park District failed to provide even a scintila of evidence about what

costs Mr. Kelley was able to save as a result of the Park District's destruction of his property.

Other than asking Mr. Kelley and his expert of their thoughts, they had no information to

provide.

CONCLUSION

A society cannot be said to value art if it does not adequately protect the rights of its

artists. In concluding the Park District was free, as far as V ARA was concerned, to wilfully

mutilate the most important work of art of Chapman Kelley's long and distinguished career, the

District Court embraced an interpretation of V ARA that does not come close to adequately

protecting artists' rights. By adopting a hyper-stringent standard of copyrghtability and the First

Circuit's fatally flawed conclusion regarding site-specific art, the District Court has unduly

restricted and thrown into question the rights of artists everywhere. The District Court's

25

interpretation of V ARA does to V ARA what the Park District did to the Wildflower Works: it

removes from V ARA the essential rights that V ARA was clearly intended to protect and thereby

unravels the very essence of the Berne Convention and of V ARA itself.

Accordingly, Chapman Kelley respectfully requests that this Court enter an order:

(i) reversing the District Court's holding that Wildflower Works is not protected under VARA;

(ii) awarding Kelley damages of no less than $825,000 for his breach of contract claim; and

(iii) remanding this matter to the District Court for a trial on damages of the Park District's

violation ofMr. Kelley's rights under VARA.

Dated: April 13, 2009 Respectfully submitted,

~L.~~~Alex L. Karan (ARDC No. 6272495)Micah E. Marcus (ARDC No. 6257569)Hector C. Bove (ARDC No. 6295946)KIRKLAND & ELLIS LLP300 North LaSalle



26

CERTIFICATE OF COMPLIANCE

Pursuant to Circuit Rule 32(a)(7)(B), the undersigned counsel certifies that this brief

complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief

contains 8,255 words. Counsel further certifies that this brief complies with the typeface

requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P.

32(a)(6) because this briefhas been prepared in a proportionally spaced typeface using Microsoft

Word 2000 in Times New Roman type style and 12 point type in the body of the brief and 11

point type in the footnotes.


.~ (.~~--Alex L. Karan (ARDC No. 6272495)Micah E. Marcus (ARDC No. 6257569)Hector C. Bove (ARDC No. 6295946)KIRKLAND & ELLIS LLP300 North LaSalle



27

CIRCUIT RULE 30(D) STATEMENT

Pursuant to Circuit Rule 30(d), I hereby certify that all material required by Circuit Rule

30(a) and (b) are included in the Appendix. The material required by Circuit Rule 30(a) is

included in the Appendix filed by the Appellants. The material required by Circuit Rule 30(b) is

separately filed.


~L~&~Alex L. Karan (ARDC No. 6272495)Micah E. Marcus (ARDC No. 6257569)Hector C. Bove (ARDC No. 6295946)KILAND & ELLIS LLP300 North LaSalle



28

CIRCUIT RULE 3l(E) CERTIFICATION

Pursuant to Circuit Rule 31 (e), the undersigned counsel certifies that a digital version of

this brief and all of the appendix items that are available in non-scanned portable document

("PDF") format have been fied with the Court on CD-ROM, that the digital version is in PDF

format and was generated by printing to PDF from the original word processing file, and that the

CD-ROM containing the digital version is virus-free.

Dated: April 13,2009 Respectfully submitted,

'$t:Lj;~Alex L. Karan (ARDC No. 6272495)Micah E. Marcus (ARDC No. 6257569)Hector C. Bove (ARDC No. 6295946)KIRKLAND & ELLIS LLP300 North LaSalle



29

CERTIFICATE OF SERVICE

I, Micah Marcus, hereby certify that on April 13, 2009, I did cause a true and correct

copy of the foregoing Opening Brief of Appellant Chapman Kelley and Appendix, as well as a

digital version of this brief to be served by overnight mail upon the following:

Annette M. McGarrMcGarry & McGarry, LLC120 N. LaSalle, #1100Chicago, IL 60602

David DonnersbergerNelson A. Brown, Jr.Chicago Park DistrictLaw Department541, N. Fairbanks Court, 3WChicago, IL 60611 ~t..~--

Alex L. Karan (ARDC No. 6272495)Micah E. Marcus (ARDC No. 6257569)Hector C. Bove (ARDC No. 6295946)KIRKLAND & ELLIS LLP300 North LaSalle



30

IN THE UNITED STATES COURT OF APPEALSFOR THE SEVENTH CIRCUIT

No. 08-3701 & 08-3712

Chapman Kelley,

Plaintiff - Appellant,Cross-Appellee,

v.

Chicago Park District,

Defendant - Appellee,Cross-Appellant.

) Appeals from the United States District Court) for the Northern District of Illnois,) Eastern Division

)) David H. Coar, Judg,e

)) District Court Case No. 04-CV-07715)

)))))))))

OPENING APPENDIX "OA" TO OPENINGBRIEF OF APPELLANT CHAPMAN KELLEY

Alex L. Karan (ARDC No. 6272495)Micah E. Marcus (ARDC No. 6257569)Hector C. Bove (ARDC No. 6295946)KIRKLAND & ELLIS LLP300 North LaSalle



DATED: April 13, 2009

OPENING APPENDIX TABLE OF CONTENTS

Document

Kelley v. Chicago Park Dist.,No. 04 C 07715, 2008 WL 4449886

(N.D. IlL. Sept. 29, 2008)................................................................................................................... OAOOOI - OA0009

2

Westlaw.Slip CopySlip Copy, 2008 WL 4449886 (N.D.Ill.)(Cite as: 2008 WL 4449886 (N.D.ID.))

COnly the Westlaw citation is currently available.

United Staes District Court,N.D. Ilinois,

Eastern Division.Chapman KELLEY, Plaintiff,

v.CHICAGO PAR DISTRCT, Defendant.

No. 04 C 07715.

Sept. 29, 2008.

Frank Patrick Hernandez, Law Offce of Frank P.Hernandez, Susan L. Hays, Law Offce of SusanHays, PC, Dallas, TX, for Plaintiff.

Jeanne G. Toft, David R. Donnersberger, Nelson A.Brown, Jr., Chicago Park District, Annette MicheleMcGany, McGar & McGar, LLC, Chicao, IL,for Defendant.

MEMORAUM OPINION AND ORDER

DA VID H. COAR, District Judge.

"'1 Plaintiff Chapman Kelley ("Kelley") broughtthis action against Defendant Chicago Park District("Park Distrct"), alleging in Counts I and II of theComplaint that the Park District violated the VisualArtists Rights Act, 17 U.S.C. § 106A, when it re-moved his wildflower plantings that were existingas an exhibit in Grat Park in Chicago, Ilinois. Heseeks damages to his reputation and integrity aswell as statutory damages and attorneys' fees for theallegedly wilfully destructive acts of the Park Dis-trct pursuant to Section 504 of the United States

Copyright Act. In Count iV of the complaint, fNl

Kelley alleges breach of a contract existing betweenhim and the Park District and he seeks the fair mar-ket value of materials removed frm the Wild-flower Works display. The instat matter proceeded

to bench tral on September 24, 2007. At the close

Page 1 of9

Page 1

of trial, both paries submittd post-trial memor-

anda. Based on the trial and paries' pre-trial andpost-trial submissions, the Cour makes the follow-ing findings of fact and conclusions of law. To theextent that any findings may be deemed conclu-sions of law, they shall also be considered conclu-

sions. To the extent that any conclusions may be

deemed findings of fact, they shall also be con-sidered findings. See Miller v. Fenton; 474 U.S.104, 113-14, 106 S.O. 445. 88 L.Ed.2d 405 (1985).

FN I. Count II was dismissed in a separteorder of this Court.

1. FINDINGS OF FAClfN2

FN2. Made pursuant to Federal Rule ofCivil Procedure 52(a).

a. The parties

Plaintiff Chapman Kelley is an arist by trainingand by trde. He has painted on varous media and

his work is represented in public and private collec-tions in at leat eighteen state.s and three foreign

countries. CompI. ii 5-6.

Defendant Park Distrct is a duly created public

agency organized and existing under the laws of theState of Ilinois for the purpose of controllng andsupervising the operations of all parks, boulevards,

and public ways under its jurisdiction. Final PretrialOrder Agreed Stipulatons ("FPTO Stip.") ii 2.

b. Wildflower Works

In March 1984, the Park District granted a pennit toKelley to create an exhibit called "Wildflower

Works l' ("Wildflower Works") in Chicago's GratPark. The pennit was granted subject to severalprovisions, including one that gave the Park Districtthe option of tenninating the installation with ad-equate notice:

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

Pl.'s Ex. 12. Under the terms of the permit, Kelleywas to install and maintain Wildflower Works athis expense in exchange for the Park District's al~lowance for the exhibit on its propert. Id. Kelley

initially financed the project himself and purchasedbetween 200,000 and 380,000 wildflower plugs at acost of between $80,000 and $152,000.nI3

FN3. Although Kelley's complaint lists thehigher figure as only $120,000, this Court

arves at the $152,000 figure based onKelley's testimony that he purchased

380,000 wildflower plugs at approximately

$.40 apiece. Compi. ii 16; Trial Tr. voL. i,129, Sept. 24,2007.

In June 1984, Kelley began installng WildflowerWorks in an area of Grant Park designated as theDaley Bicentennial PLaZ which is the roof of theEast Monroe Street Parking Garage. Grat Park is

public land, codified at 70 ILCS 1580, 1585, 1590,and is under the supervision of the Park District.The location is bord.ered by Monroe and RadolphStreets to the nort and south, and Columbus andNort Lae Shore Drives to the west and east, andis near the hear of Chicago's central business dis-

trct. The exhibit consisted of two ellptical shapes,

formed by gravel and meta edging, that enclosedtwo beds of wildflowers, laid out in accordance toKelley's design. Its approximate size was 1.5 acres,or 66,000 square feet. FPTO Stip. ir 17. Kelleyplanted the wildflower seeds and plugs, cultivatedand pruned the plants, and organized volunteers tomaintain the gardens. Kelley did maintenance workon the exhibit eight months a year for each of thetwenty years it wa installed.

-2 After its completion, Wildflower Works attac-ted the attention of national news outlets, includingthe New York Times and the Christian ScienceMonitor, which published aricles that commentedpositively on the exhibit. Wila¡owers as Art For a

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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 byvarous state and local offcials for the installation.In a letter inviting the press to a preview of Wild-flower Works in 1984, Chicago Park District Gen.eral Superintendent Edmund L. Kelly lauded Kelleyas "an internationally renowned arist ... a pioneerin the use of natual materials for 'living' ar (who)has achieved national prominence for his effort toincorporate landscape in arstic creation."The

Ilinois Senate recognized Wildflower Works as "anew form of living art ... (in) the first park district

in the United States to display a live wildflowerwork of ar of this scale" and commended Kelley

for "his vast arstic contribution to Grant

Park."PI.'s Ex. 4, Illnois Senate Resolution No. 420(June 29, 1985).

c. Expiration of the temporary permit

In 1988, the Park Distrct notified Kelley that hispermit for Wildflower Works was to be terminatedwithn ninety days. Pl.'s Ex. 13, Letter from JesseMadison, Executive Vice President, Park Distrct,to Chapman Kelley (June 3, 1988). Kelley respon-ded with a lawsuit in the Nortern District ofIllnois, No. 88 CV 6619, alleging inter alia that hisFirst Amendment rights were being infrnged upon.On September 14, 1988, as par of the settlement ofthat lawsuit, the Park District renewed Kelley's

temporar permit for one year. FPTO Stip. ii 30, 31;Pl.'s Ex. 14. The 1988 permit did not include theninety day notice of termination provision of the

1984 permit, supra.PI.'s Ex. 14. It included instead

the following provisions:

The planting material is the propert of Mr. Chap-man Kelley. If the Chicago Park District does notextend the Pennit by September 1, 1989, Mr.

Kelley may remove the planting material. If thisPermit is not extended by September 1, 1989, thepermittees are not required to restore the planted

area to its original condition .... This agreement

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does not create an proprietary interest for Chica-go Wildflower Works, Inc. (a non-profit corpora-tion associated with the exhibit), and/or Mr.

Chapman Kelley in continuing to operate andmaintain the Wildflower Garden Display aferSeptember 1, 1989.

ld The 1988 penn it was renewed in 1989, 1990

and 1992. Pi"s Exs. 15, 17, 19; FPTO Stip." 33,34.

The last pennit renewal expired on September 30,

1994. After its expiration, Kelley did not apply fora pennit, and the Park District did not renew the

tempora pennit. FPTO Stip. ii 35-38. From Octo-ber 1, 1994 unti June 9, 2004, Kelley and his vo-

lunteers continued to maintain and install plants inWildflower Works, and the Park Distrct did not re-move the instalation. ld at ii 41.n March of 2004,Kelley attended a lunch meeting with WildflowerWorks, Inc. President Jonathan Dedmon, Wild-flower Works, Inc. Secretar Maurine Slavin, andPark District commissioner Margaret Burroughs. Atthe meeting, Dedmon asked Buroughs whetherKelley or Wildflower Works, Inc. needed to fie a

pennit for the exhibit. Burroughs responded

something to the effect of, "You're stil there, aren'tyou? Thats all you need to dO."FN4The others in-

terpreted Burrughs' statement mean that no furtheraction for a pennit was required. Trial Tr. vol. 1, 77.

FN4. The paries dispute whether Bur-roughs made this remark, but the weight ofthe evidence favors Kelley's position. Slav-in and Dedman testified, consistent witheach other, that Burroughs made the com-ment. On the other hand, Burroughs testi-fied that she did not say anything to Kelleyregarding the pennit for Wildflower works,but could not remember other details fromthe meeting, and could not remember thatshe had signed an affdavit in the course ofthis litigation regarding the maUer. TrialTr. vol. 1, 76, Sept. 24, 2007; vol. 2, 276,

Sept. 25, 2007; vol. 3, 326-38, Sept. 26,

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2007. The Court credits Slavin and Ded-man's testimony.

d. Reconfiguration of Wildflower Works

*3 In May of 2004, ongoing issues with the main-tenance of Wildflower Works and the oncoming

opening of a new adjacent park space prompted the

Par District to conclude that changes would have

to be made to Wildflower Works. Trial Tr. vol. 2,293. On June 10, 2004, Kelley met with persons

frm the Park District who presented plans to re-duce the size and to change the shape and design ofWildflower Works. FPTO Stip. ii 45. At the meet-ing, Arnold Radall, then Director of Development

and Planning for the Park District, told Kelley thatthe Park District intended to move forward with thereconfiguration plan but wanted Kelley's input Tri-al Tr. vol. 2, 307. Kelley did not approve of eitherthe reconfigured new shape or the design, but didnot request to be given an opportnity to remove

any of his wildflower plants from Wildflower

Works. FPTO Stip. ii 47, 49.

Despite Kelley's disapproval, the Park District wentforward with the reconfiguration plans. During thesummer of 2004, the Park Distrct reduced the wild-flower-planted spaces in Daley Bicentennial Plazfrom roughly 66,000 square feet to under 30,000

squar feet, and reconfigured the two ellpses asrectilnear shapes. The wildflower beds were edgedwith new evergreen hedges. FPTO Stip. ii 46.

2. CONCLUSIONS OF LAW

a. Jurisdiction and venue are both appropriate.

Jurisdiction over this action is appropriate under

this Court's federal question jurisdiction, pursuant

to 28 U.S.C. § 1331, and supplementa jurisdiction,pursuant to 28 U.S.C. § 1367. Venue is proper pur-suant to 28 U.S.c. § 1391(b).

b. Wildflower Works is not protected by V AR.

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Kelley's first two claims assert his rights under theVisual Artists Rights Act ("V AR"), i 7 U.S.C. §106A. Under that statute, an "author of a work ofvisual art" is entitled to certain rights of attibution(the right of the arist to be recognize by name asthe author of the work) and integrity (the right ofthe arist to prevent distortion or mutilation of the

work), subject to exceptions and limitations. 17U.S.C. § 106A(a).

To be protected by VAR, an object must (1) meetthe statutory definition of "a work of visual ar" and(2) be subject to copyright protection. 17 U.S.C. §101. The Court wil consider the two prongs of theanalysis separately.

i. Wildflower Works is a "work of visual art."

V AR defines a "work of visual ar" as, inter alia,

~1) a painting, drawing, print, or sculpture, existingin a single copy, in a limited edition of 200 cop-ies or fewer that are signed and consecutively

numbered by the author, or, in the case of a

sculptue, in multiple. cast, carved, or fabricated

sculptures of 200 or fewer that are consecutively

numbered by the author and bea the signature orother identifying mark of the author...

17 U.S.C. § !OJ. Kelley advances two theories un-der which Wildflower Works could be a "work ofvisual ar": the exhibit is either a painting or a

sculpture.

*4 Nowhere in the Copyright Act are the tenns"painting" or "sculpture" defined. The Park Distrctcites legislative history to support its contention

that V AR only applies to a narrow range of ar-work, but a closer reading of the cited legislativehistory reveals only that the speaker was concernedwith differentiating visual art from films and otherkinds of intellectual propert. Def.'s Resp. Br. 6,May 31, 2007. Absent a statutory definition or aclearly expressed legislative intent to the contrar,

words ar to be given their plain and ordinarmeaning. United States v. Lock, 466 F.3d 594, 598

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(7th Cir.2006) (citing Am. Tobacco Co. v. Paller-son, 456 U.S. 63, 68, 102 S.Ct. J534, 71 .LEd.2d

748 (1982). However, this Court is loath to tae tooliteralist an approach to detennining whether a giv-en object qualifies as a sculpture or a painting.

There is a tension between the law and the evolu-tion of ideas in modem or avant garde ar; thefonner requires legislatures to taxonomize artisticcreations, whereas the latter is occupied with ex-panding the definition of what we accept to be ar.While Andy Warhol's suggestion that "ar iswhatever you ca get away with" is too nihilsticfor the law to accommodate, neither should V ARbe read so narowly as to protect only the mostrevered work of the Old Masters. In other words,

the "plain and ordinar" meanings of words de-

scribing modem ar are stil slippery. With theseconcern in mind, the Cour turns to the tak of de-tennining whether the two ellptical gardens of Kel-ley's creation could be considered a painting or asculpture under V AR.

The Wildflower Works exhibit consisted of ar-rangements of living plants within two ellpticalspaces. Those spaces were circumscribed by threefeet of grvel and a band of steel edging. At trial,Kelley likened the gravel and metal band in Wild-flower Works to the figurative area in his paint-ings; indeed, many of Kelley's paintings depict ban-ded ellptical fonns enclosing colorfl wildflowers.

Pl.'s Ex. 2. The display required Kelley and his vo-lunteers to plant, cultivate and prune the wild-flowers in the gardens, activities typically asoci-ated with landscaping, not ar.

Defendant's insistence that an artifact that changesover time, requires ongoing maintenance, or con-

tains living matter cannot be considered a work ofvisual ar protected by V AR is misplaced. The

mobiles of Alexander Calder are undoubtedly ar

even though the dynamic fonns they create are eph-emeral by their nature. An example of ar thatchanges or requires maintenance can be found lessthan half a mile away from Wildflower Works, inthe Ar Institute of Chicago, alongside such works

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as Seurat's "Sunday Afternoon on the Island of LaGrande Jatte" and Van Gogh's "Bedoom at Aries."Felix Gonzalez-Torres' "Untitled (portait of Ross

in L.A.)" consists of 175 pounds of individually-wrapped multicolored candies laid on the floor of

the museum. Viewers are invited to tae candies

from the arork, which is intended to represent theweight loss due to ilness of the arst's parer, whodied of causes related to AIS. The cady piledwindles each day; each morning, the candies arereplenished by museum staff. Although arguably notwo viewers of "Untitled (portait of Ross in L.A.)"

see the same work, there is no argument that itsmutability precludes it from being described as awork of art. Finally, this Court wil not concludethat such an arrangement of living plants can neverbe a work of visual art per se; Jeff Koons' ''Puppy,''a 43-foot flowering topiar, comes to mind.

(I) Wildflower Works as sculpture

*5 According to one common dictionar, a sculp-ture is "a work of ar created by the practice of

shaping figures or designs in the round or in relief,as by chiseling marble, modeling clay, or casting inmetal."The American Heritae Dictionar of the

English Laguage (4th Ed.2004). Another diction-ar defines a sculpture as the "(1) action or ar ofprocessing (as by carving, modeling, or welding)

plastic or hard materials into works of ar: (2) workproduced by sculpture, (or)(3) a three-dimensionalwork of art (as a statue)." Merriam-Webstets On-line Dictionar, ht-tp://ww.m-w.comldictionar/sculptue (last vis-ited September 25, 2008). Kelley's expert witnessJane Jacob, a fine ar advisor and appmiser and aprofessor of art history at New York University,testified that "since World War IT and since the1960s in particular, sculpture (has been) defined asany non-two dimensional art form ... including en-vironmenta ar and some conceptual art ." Tnal Tr.voL. i, 15-16. At a minimum, the manipulation ofthe flowers, metal, and gravel into an ellpticalshape fits within the broadest of the definitions ofsculpture cited above. Accordingly, this Court finds

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that Wildflower Works is a sculpture within thedefinition ofVARA.

(2) Wildflawer Works as painting

Jacob also testified that she considered WildflowerWorks to be a painting, under her definition of apainting as "two dimensional representations,where a picture is executed by applying colored

matter to varous surfaces as decoration, among

other things ...... Trial Tr. vol i, 18. She noted thatwhile Wildflower Works appeared as a garden frmground level, it was conceived as a painting to beviewed from a height, aiid that many paintings are,in fact, three dimensionaL. Id This Court need notpass on Jacob's strange assertion that three dimen-sional objects become two dimensional paintingswhen viewed from airplanes, because a widely-useddictionar offers a more accommodating definitionof "painting." According to Merriam-Webster, to

"paint" is "(1) to apply color, pigment, or paint to

... (2) to produce in lines and colors on a surface byapplying pigments, (3) to depict by such lines andcolors, (4) to decorate, adorn, or variegate by ap-

plying lines and colors."Merriam-Webstets OnlineDictionar, ht-tp://ww.m-w.com/dictionar/paint(l) (last visitedSeptember 25, 2008). An exhibit that corrals thevariegation of wildflowers in bloom into pleasingoval swatches, as Wildflower Works did, could cer-tainty fit within some of the above definitions of apainting. Accordingly, Wildflower Works could beconsidered either a painting or a sculpture under

VAR.

ii. Wildflower Works was not copyrightable.

An object is subject to copyright protection if it is an

Jfiginal (work) of authorship fixed in any tangible

medium of expression, now .known or later de-veloped, from which (it) can be perceived, reproduced, or otherwise communicated, either dir-ectly or with the aid of a machine or device.

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*6 17 U .S.c. § 102. "Works of authorship include

... (5) pictorial, graphic, and sculptural works

...."IdExcluded from copyright protection is "anyidea, procedure, process, system, method of opera-tion, concept, principle, or discovery, regardless ofthe form in which it is described, explained, ilus-trted, or embodied in such work." 17 U.S.C. §

I 02(b) (emphasis added).

For the sae reasons that it can be considered a

painting or a sculpture under the definition of''work of visual art" under 17 U.S.C. § 101, Wild-flower Works qualifies as a "pictorial, graphic, andsculptural (work)." However, the Park District chal-lenges the copynghtabilty of Wildflower Works onthree grounds: it contans living elements, so it can-not be "fixed in a tagible medium of expression";

Kelley has descnbed it as a "vegetative manage-

ment system," Tnal Tr. vol. 3, 382 (emphasis ad-

ded), so it is excluded under 17 U.S.c. § i 02(b);and it is not an "original work of authorship."

On the last point, this Court agrees with the ParkDistrict. It is not clear what about the exhibit is ori-ginaL. Is it the ellptical design? The size? The useof native instead of non-native plants? The environ-mentally-sustainable gardening method to which"vegetative management system" apparentlyrefers?lN$ Kelley leaves this Court to assume that

he is the first person to ever conceive of and ex-press an arangement of growing wildflowers in el-lipse-shaped enclosed area in the manner in whichhe created his exhibit. He has submitted no evid-ence or argument on the copyrightabilty of Wild.flower Works, except for the conclusory, tautolo-gical statement that "Wildflower Works is copy-rightable under the Copyright Act because the ar-ragement, coordination or selection displayed byPlaintiff is copyrightable."Pl.'s Proposed Findingsof Fact and Conclusions of Law 40. Without anyevidence differentiating Kelley's work from, for ex-ample, the oval wildflower beds of Monticello, see

http://ww.monticello.orglgardens/flower/ovalbeds.html,this Court can only find that Wildflower Works is

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not subject to copyright protection. Therefore, it isnot protected under V ARA.

FN5. If indeed the only original element ofKelley's exhibit was this "vegetative man-

agement system," then Wildflower Workswould be excluded from copyright protec-tion under 17 U.S.C. § I02(b).

iii. Even if Wildflower Works was copyrightable,it would still not be protected under V AR be-cause it is site-specific.

Even if Wildflower Works was copyrightable, itwould not be protected by V AR because the stat-ute does not protect "site-specific" ar. Phillps v.Pembroke Real Estate, Inc., 459 F.3d 128 (1stCir.2006). Site-specific ar is arork in which "oneof the component physical object is the location ofthe ar." ¡d, 459 F.3d at 129. According to Kelley'sexpert Jane Jacob, "Site-specific art usually takesinto consideration the natural environment in whicha work of ar is installed. It could be anyting froma mural that is put into a public building, to a lobbyin a hotel, to a hill."Trial Tr. voL. i, 34.

V AR is silent on the issue of site-specific ar.There are few published decisions dealing withV AR; the Seventh Circuit has only published twodecisions on the statute. No court in this circuit hasdealt with the issue of V AR's coverage of site-specific ar. This Court wil therefore follow the

persuasive reasoning set fort by the First Circuit inPhilips. In ilat cae, an arist sued to prevent the re-

moval of his artork from a public park. The ar-work at issue integrated the artist's sculptures withthe large graite stones of the park and the nearby

granite sea walls of Boston harbor. 459 F.3d at 137.The distnct cour held that V AR protected such

site-specific arork from alteration or distortion,but that under the public presentaion exception at

17 U.S.c. § 106A(c)(2), the defendant could move

the artist's sculptures to a different location. TheFirst Circuit disagreed with the district court's reas-oning, because "the removal of a site-specific work

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from its location necessarly destroys that work ofart."459 F.3d l29.Instead, the First Circuit con-

cluded that V AR does not protect site-speCific arat alL.

*7 Wildflower Works is clearly a site-specific ar-work. Kelley admitted at his deposition that it wassite-specific. Trial Tr. voL. 3, 383. Ke\ley's expertJane Jacob stated unequivocally that WildflowerWorks was site-specific. Trial Tr. voL. 1, 34 ("Q:Mr. Kelley's work is site-speCific, isn't it? A: Yes, itis. It is site-specific, yes."). In addition, the theoret-ical concepts that motivated Kelley's design andplacement of Wildflower Works required that it beplaced in Grant Park; Kelley wanted a location thatwould create a contrast between the linearty of theurban grid, the rondure of the ellptical gardens, andthe entropy of the wildflower beds. FPTO Stip. 25;Trial Tr. voL. 1, 91-93; voL. 2, 251. Before choosingthe location, Kelley hired helicopters and airplanesso that he could survey Chicago from the air, anddrove around the city extensively to find a placethat would be express his aristic vision. Trial Tr.voL. 2, 247-48. In Grat Park, the gardens were setagainst a backdrop of Chicago's skyscrapers and

grd system. Prior to the first lawsuit, the Park Dis-trict and Ke\ley discussed relocating the exhibit, butKe\ley rejected all other locales as incompatible

with his artistic vision for the exhibit. Trial Tr. voL.

2,251-52.

Finally, Wildflower Works incorporated pre-existing elements of the environment into its dis-play. It is situated on the roof of the East MonroeStreet Parking Garage. Air vents from the gargewere incorprated into the arork: each ellpse hadthree large square vents spaced evenly along its ma-jor axis, which worked as figurative elements in the"painting" just as the band of gravel and steelaround the ellpses did. Kelley testified that he de-signed Wildflower Works around those vents:

Q: When you did Wildflower Works, when you didthat, did you design it to include those air duct?

Kelley: Well, of course, yes, they were par of it.

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They were considered because I wouldn't havedone it there if I couldn't have, you know, in-

cluded them as part of it... So they became, in

essence, I guess, a certin element.

Trial Tr. voL. 1, 123. Therefore, Wildflower Workswas site-specific and not protected under V AR.

Because the Court concludes that WildflowerWorks is both site-specific and not copyrightableand therefore not protected under V ARA, it needs

not reach the Park District's additional arguments

that Kelley waived his V ARA rights or that Wild-flower Works is a work installed on a building be-fore 1991 and therefore not subject to V AR pro-tection.

c. Commissioner Burroughs' statement createdan implied contract, which was breached by thePark District.

In his final claim, Kelley contends that the Park

District breached a contract between the paries byfailing to provide reasonable notice to Kelley re-garding the reconfiguration of Wildflower Works.

The final tempora permit expired in 1994, so thisCourt presumes that Kelley advances some sort ofimplied contract theory based on prior course ofdealing to support this claim.

*8 In a contrct implied in fact, a contractual duty

is imposed by reason of a promissory expression in-ferred from facts, circumstaces and expressions bythe promisor showing an intent to be bound. In reEstate oj Milhorn, 122 IlApp.3d 688, 78 IIl.ec.241,461 N.E.2d 1075 (I1J.App.Ct.984). Such con-trct may be proved by circumstaces showing that

the paries intended to contrct and by the general

course of dealing between them. However, therecan be no promise implied where the relationbetween the paries excludes the inference that theywere dealing on a footing of contract. South Sub-

urban SaJeway Lines, Inc. v. Regional Transporta-tion Authority. 166 ni.App.3d 361, 116 IIl.ec.790, 519 N.E.2d 1005, 1008 (I1I.App.Ct.988). Un-

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der Ilinois law, "no contract or liabilty may be im-plied against a municipal corporation where therehas been a failure to comply with a statute or ordin-ance prescribing the method by which an offcer oragent can bind such corporation by contract." Id,116 Il.Dec. 790, 519 N.E.2d at 1007 (citation omit-ted). The City of Chicago's power to contrct islimited by law; only "corporate authorities" can ex-ecute contracts that bind the municipal entity unlessthere has been an express delegation of that power.

Chicago Food Mgmt. v. City of Chicago. 163riJ.App.3d 638, 114 Il.Dec. 725, 516 N.E.2d 880(lII.App.Ct.1987); 65 rLCS 5/2-2- 12.

The Park District argues that under 70 IlL. Compo

Stat. 150517.01, which delineates the powers of thePark Distrct, only the Board of Commissioners ofthe Park District (rather than the commissioners in-dividually) has the power to issue a renewal pennitinvolving more than a limited, short-tenn use ofPark District propert. But the statute actuallyprovides that "(tJhe commissioners of such districtconstitute the corporate authorities thereof, andhave full power to manage and control all the of-ficers and propert of the district, and all parks,driveways, boulevards and parkways maintained bysuch district or committed to its care and custody"(emphasis added). From the language of the statuteit is possible that because Buroughs was a com.missioner, she was a "corporate authority" capableof binding the Park Distict in contrat and she

could do so orally.~"N('See Chicago Food Mgmt. v.City of Chicago, 163 I1I.App.3d 638, 114 IIl.ec.

725, 516 N.E.2d 880. An implied agreement to ex-tend the date of the temporar pennit was thereforecreated when Burroughs told Kelley, ''You're stilthere, aren't you? That's all you need to do" whenqueried about the state of the pennit for WildflowerWorks.

FN6. Notwithstanding the statute, the re-cord is unclear as to whether a Parks Dis-trict commissioner indeed has the power toact unilaterally in granting an extension ofa penn it. If not, Kelley's contrct claim

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fails; if so, Kelley's claim for damages un-der the contract claim stil fails for reasonsdiscussed below.

Even though the post-1988 penn its did not include

the ninety day notice provision, they did provide

Kelley the right to remove his wildflowers upon theexpiration of the pennits. Accordingly, under the

implied pennit extension, the Park District shouldhave given Kelley reasonable time to remove his

wildflowers. Based on the tenns of the first pennit,this Court finds that ninety days would have been areasonable time for the removal of those plants. Be-cause the Park District did not provide the requisiteninety days, it is in breach of the implied contract.

i. Kelley did not prove his damages to a reason-able degree of certinty.

*9 Although he is entitled to damages under CountIV of the complaint, Kelley failed to meet his bur-den of proving the amount of his damages to a reas-onable degree of certinty. CSC Holdings, Inc. v.Redisi, 309 F.3d 988, 995 (7th Cir.2002) ("Whilewe have no problem with the basic premise that un-certainties as to damages should be resolved againstthe wrongdoer, this does not give an injured parcarte blanche to provide wild guesses at its dam-

ages. A reasonable estimate ... must be grounded insome record evidence, not numbers pulled frmthin air.") (citations omitted). When a par estab-lishes that it is entitled to damages but fails to

prove the amount of those damages to a reasonabledegree of certinty, a trial court may award the

plaintiff only nominal damages. Fideliy Ins. Agen-cies v. Citzens Cas. Co ql'New York, 194 F.2d 43,47 (7th Cir.J 952). Kelley has not sought nominaldamages.

Kelley seeks damages in "compensation for the ma-terials removed by the Park District."Compl. , 54.The measure of damages would therefore be thevalue of the plants that Kelley could have removed,less the costs of removal. The only evidence ad-

duced by Kelley with regard to the issue of dam-

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ages was presented by his expert witness 1. RandallIsmay, who calculated the total cost of wildflowerplugs required to fill 66,000 square feet to be $1.5milion, based on his estimate of the amount of

wildflowers in a square inch or square foot of soiL.However, Ismay's evaluation fails to take into ac-count the approximately 30,000 square feet of Kel-ley's wildflowers that remain in Grat Park, the per-centae of Wildflower Works that had been over-

taen by invasive weeds by 2004, the wildflowers

removed during the garden's reconfiguration but re-planted afterward, or the cost to Kelley of removingand trasporting those wildflowers for which he

seeks damages today. The last factor alone couldhave proved more costly to Kelley than the value ofall of his wildflowers. Given Kelley's failure to

provide evidence to dispel these unknowns, thisCourt concludes that he has not proven his damagesto a reasonable degree of certainty.

3. CONCLUSION

After carefully reviewing the evidence in this case,this Court concludes that judgment on Counts I andII wil be entered in favor of Defendant, and CountIV for breach of contract wil be entered in favor of

Plaintiff. Nominal damages in the amount of onedollar wil be awarded on Count iV.

N.D.I11.,2008.Kelley v. Chicago Park Dist.Slip Copy, 2008 WL 4449886 (N.DJli.)

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Chapman Kelley Opening Brief in the 7th Cir April 13 2009

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