Chapman Kelley v. Chicago Park District Oral Argument Manuscript Transcript Sept.10 2009

8/14/2019 Chapman Kelley v. Chicago Park District Oral Argument Manuscript Transcript Sept.10 2009

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AUDIOTAPE TRANSCRIPTION

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9 TRANSCRIPT OF CD ENTITLED:

10 Oral Argument. September 10, 2009.

11 Chapman Kelley vs. Chicago Park District.

12 42 min. Disc 1 of 1.

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1 FEMALE VOICE: Good morning, everyone, and

2 welcome. Our first case of the morning is

3 No. 08-3701, Chapman Kelley versus Chicago Park

4 District.

5 MR. MARCUS: Good morning, your Honors. Thank

6 you for your time today. My name is Micah Marcus.

7 I'm here representing Chapman Kelley on his appeal

8 from the district court.

9 My client's appeal centers around two

10 major issues. First, whether the district court

11 erred by finding that my client's work, Wildflower

12 Works, was not entitled to protection under the

13 Visual Artists Rights Act because it was not

14 sufficiently original as to be entitled to

15 protection under the Copyright Act.

16 If it pleases the court, I'll refer to

17 the Visual Artists Right Act as VARA, as I find18 that far easier to say repeatedly.

19 The second issue is whether the district

20 court erred in finding that VARA itself does not

21 protect site-specific art and, therefore, does not

22 protect -- did not protect my client's work,

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1 Wildflower Works. I would respectfully submit to2 this panel that the district court erred in both

3 cases.4 There is also a counter-appeal in this5 issue in which the City of Chicago has taken the6 position that the district court erred in finding7 that Judge Coar found on behalf of my client for8 breach of contract based upon the argument that9 Margaret Burroughs, as a commissioner of the Park

10 District, was unable to bind the City with respect11 to its obligations to Mr. Kelley.12 That's the basis of the case, but that's13 not what this case is about. Respectfully to my14 client and to this panel, this case extends far15 beyond Chapman Kelley and Wildflower Works.16 This case is about artists nationwide17 who look to the federal courts for protection of18 their intellectual efforts and their art that19 undoubtedly brings value to society at large.20 Rights that would be placed in serious jeopardy21 were the district court's decision allowed to22 stand.

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1 Respectfully, if our society is going to

2 be understood to value art, the federal courts have

3 to be ready to protect that art and protect the

4 statutes which were put in place by Congress to

5 protect those rights.

6 I'll first turn to the issue of the

7 application of VARA. As I said, the district court

8 determined that Wildflower Works was not entitled

9 to VARA protection because it didn't satisfy the

10 initial element of being able to be protected by

11 the Copyright Act.

12 The court found -- and this has not been

13 appealed -- that it was a work of visual art, is

14 either a painting or a sculpture, and would

15 otherwise be entitled to protection but for this

16 lack of ability to be copyrighted because it was

17 not original.18 And in that particular point the court

19 stated as follows:

20 "Is it the elliptical design, the size,

21 the use of native instead of non-native plants, the

22 environmentally sustainable gardening system method

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1 to which vegetative management systems apparently

2 refers?

3 Kelley leaves this court to assume that4 he is the first person to ever conceive of and

5 express an arrangement of growing wildflowers in an

6 ellipse shaped enclosed area in the manner in which

7 he created this exhibit."

8 Respectfully, that implies a standard of

9 originality that is simply untenable and

10 unenforceable in our system.

11 The concept of original as provided by

12 the Supreme Court in Feist is a minimal degree of

13 creativity, a mere spark of intellectual labor that

14 separates the work of art as original versus a

15 copy.

16 Now, under this standard I can assure

17 this panel if they were to look at the copyright

18 registry and they wanted to look up paintings of a

19 woman on a canvas, I would assure you there'd be

20 millions. If they wanted to look up painting of a

21 fruit bowl, if they wanted to look up sculpture of

22 a man or a book.


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1 The mere fact that a form of art has

2 been performed before does not mean that that type

3 of art can never be copyrighted after. It is not

4 the --

5 UNIDENTIFIABLE JUDGE 1: What do you mean, it

6 has to be independently created? It could be --

7 someone else could have done something else, but as

8 long as it's original with this artist, is that

9 enough?

10 MR. MARCUS: That is correct. It's not a

11 standard of novelty or new art. I mean, if that is

12 the standard, there would be no further copyright

13 protection in art ever. Unless we come up with a

14 completely and new utter concept of what art is, we

15 will no longer have copyright protection moving

16 forward. And that just simply can't be the right

17 standard.18 In response to this, the City simply has

19 no response. They can't justify the court's

20 position on his view of originality, and instead

21 simply says it wasn't original. Well, why not?

22 There was a huge degree of artistic labor put into

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1 this.

2 This was Mr. Kelley's artistic vision

3 for the past -- for over 20 years before creating4 Wildflower Works. He was known for creating

5 elliptical shapes surrounding wildflowers on

6 paintings and other forms.

7 JUDGE SYKES: Well, the statute doesn't

8 require a huge degree of creativity or originality.

9 It's a very, very low threshold.

10 MR. MARCUS: I would agree, your Honor. And

11 to the extent that this panel would accept it, this

12 is the minimal amount of creativity required, then

13 I'll move on to my next subject.

14 JUDGE SYKES: The harder question is the

15 site-specific art question.

16 MR. MARCUS: Okay. Well, moving on to the

17 site-specific art question, I would also suggest

18 the district court erred in that matter as well.

19 The district court simply applied

20 Phillips, the case of Phillips, without any type of

21 analysis or independent thought, other than the

22 fact that Phillips decided that site-specific art

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1 would not be entitled to protection. And the2 Phillips case, effectively, was wrongfully decided.3 UNIDENTIFIABLE JUDGE 1: Site specific?4 MR. MARCUS: Site-specific art.5 UNIDENTIFIABLE JUDGE 1: Now, that's not6 statutory, is it?

7 MR. MARCUS: No, that's not statutory, your8 Honor. That was -- that was the definition created9 by the first circuit in Phillips. And I would -- I

10 would state also that I don't believe that the use11 of that definition even applies to this case.12 UNIDENTIFIABLE JUDGE 2: But that public

13 presentation exception is statutory, and that's14 pretty broad, isn't it?15 MR. MARCUS: I -- I don't think it's so broad.16 And I think while it certainly does apply and it

17 certainly does allow an owner of land to move18 property, it doesn't allow them to destroy it where

19 it sat for 20 years.20 In particular, the -- I would point that21 the existence of the exception actually renders22 clear the fact that the statute is intended to

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1 recognize site-specific art. The statute -- the2 particular exemption you're discussing says that in

3 the case that an artist claims that the4 modification by movement or lighting of his art5 causes mutilation or distortion, that won't6 consider -- that won't constitute the type of harm7 or distortion or mutilation that this act finds8 actionable.9 There is one type of artist that would

10 offer such an argument, an artist who believes that11 the site in which his art lays has an impact on the12 overall artistic vision. So why would that13 exception exist if the statute wasn't otherwise14 meant to cover and protect site-specific art?15 In particular, by the mere fact that the16 art can be harmed in one way that other art is not17 susceptible to does not mean it's not entitled to18 all the other protections provided under the act of19 VARA.20 For instance, the right of attribution21 has absolutely no relationship to this issue. Did22 Mr. Waffla (phonetic) -- I apologize.


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1 Did Mr. Kelley have the right to claim

2 that he had -- that he created Wildflower Works to

3 the public? Was that a right protected by VARA? I

4 would suggest it is.

5 Did Mr. Kelley have the right to not

6 have his artwork defamed or destroyed or mutilated?

7 And I would suggest he does.

8 UNIDENTIFIABLE JUDGE 2: Speaking of

9 defamation, what was the evidence that your client

10 suffered some reputational loss because of the

11 reconfiguration or different array that the

12 wildflowers are now in?

13 MR. MARCUS: Your Honor, I don't believe that

14 reputational loss is a necessary element with

15 respect to the destruction of the property. And I

16 would suggest that Mister -- that there were a

17 number of --18 UNIDENTIFIABLE JUDGE 2: Well, doesn't the

19 statute require that the modification be

20 prejudicial to his or her honor or reputation?

21 MR. MARCUS: Well, it's prejudicial to an

22 honor that would destroy his entire life's work,

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1 your Honor.

2 UNIDENTIFIABLE JUDGE 1: Which is it? Is it

3 protecting his reputation, VARA, protecting his4 reputation, or is it protecting the work of art?

5 MR. MARCUS: I think it's -- I think it's

6 both, your Honor. I -- I think it's both

7 protecting his honor and his reputation. What --

8 what the City did was --

9 UNIDENTIFIABLE JUDGE 1: No, I'm saying make

10 your distinction between honor and reputation and

11 the artwork itself. I thought it was mostly to

12 protect the, I guess, the reputation or the

13 integrity of the artists.

14 MR. MARCUS: Yes, but I believe it does that

15 by protecting the art. So, I mean, I don't think

16 you can completely separate the two.

17 The intent -- certainly, the intent is

18 to protect artists and their rights with respect to

19 their intellectual labor and the art that they

20 provide that society values.

21 JUDGE SYKES: What's the measure of damages?

22 MR. MARCUS: The measure of damages is

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1 statutory, your Honor, and I think that -- that

2 issue was never arrived at at the district court

3 because he decided that VARA did not apply.

4 But to this point, yes, he was -- he was

5 defamed in the fact that -- that it was clear that

6 the City felt that his art was not worth

7 protecting. And it was -- they were entitled to

8 destroy it without qualms, without any remorse.

9 And his artwork, his lifetime's work

10 which he had for 20 years, had brought people to

11 and showed and demonstrated as an example of his

12 original art form, had been destroyed. I mean,

13 that is damage in and of itself.

14 UNIDENTIFIABLE JUDGE 2: Does the City peg his

15 name to this new configuration? Do they say that's

16 his work?

17 MR. MARCUS: No, I do not believe they do.18 But to that extent, they're not violating VARA in

19 trying to attribute a mutilated piece of work to

20 Mr. Kelley. But Mr. Kelley should have his piece

21 of work -- his piece of art still intact. He

22 should have that right for that to -- for that art

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1 to be available.

2 UNIDENTIFIABLE JUDGE 2: So a city makes a big

3 mistake when it accepts this type of art, doesn't4 it? Because it's then locked in to -- to that

5 particular configuration, that particular array,

6 and can never modify its park --

7 MR. MARCUS: I disagree, your Honor.

8 UNIDENTIFIABLE JUDGE 2: -- once it does that.

9 MR. MARCUS: I disagree. The public -- I'm

10 not saying the public use exception doesn't apply.

11 And I'm -- what I'm saying is that Phillips

12 erroneously understood the impact of the public use

13 exception.

14 JUDGE SYKES: They could have moved this,

15 right?

16 MR. MARCUS: They could have moved this.

17 And -- and Mr. Kelley -- while -- while the City

18 will come up and say, "Well, Mr. Kelley objected to

19 the movement, he objected to the movement to

20 specific locations," he didn't object to movement

21 completely.

22 And, frankly, there were other locations


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1 that he was considering that he thought would have

2 been better locations for this to be moved. They

3 were not tied -- they were not tied into

4 maintaining Wildflower Works for the rest of his

5 life by allowing him to place Wildflower Works in

6 Daley Bicentennial Plaza. That's simply not the

7 case.

8 And the act specifically covers for

9 that. The act says in these cases and these cases

10 of site-specific art, I'm not going to allow you

11 artists to argue that you have adverse possession

12 over a piece of land because you put a piece of art

13 there, and it takes into account its surroundings.

14 UNIDENTIFIABLE JUDGE 1: So he can move --

15 you're saying he can move the piece of art. Did

16 you put this into one category, painting, drawing,

17 print or sculpture? Is this a sculpture?18 MR. MARCUS: Your Honor, it's a matter of

19 final decision of fact by the district court that

20 this could be considered either a painting or a

21 sculpture. That issue has not been appealed.

22 UNIDENTIFIABLE JUDGE 1: All right. Well, if

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1 that's -- because I think they start with that.2 But then comes the, I guess, the movability of it.

3 They claim, of course, that it's got weeds and all4 kinds of other things wrong with it. I don't know5 how well it was maintained over those years.6 I can understand putting it somewhere7 else, but is there any practical way to move that8 flower by flower?9 MR. MARCUS: Well, you don't have to move it

10 flower by flower. In fact, the only testimony that11 came in in the trial court is actually they have12 the ability to come in with giant scrapers, cut up13 the entire piece of land, roll it up and carry it14 over to another location. In fact, there was15 testimony that a specific collector had brought in16 an entire meadow from France for his private17 collection by that very way.18 So, I mean, this is not something19 that -- moving it was not impossible. Moving it20 did not require destruction. And simply destroying21 it where it sat is not an appropriate act under22 VARA. While they're allowed to move it, that is

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1 one thing.2 In particular, if I can just focus the3 court on the erroneous analysis of Phillips. I4 mean, what Phillips took the position was is that5 because one type of art -- one type of harm is6 allowed, you're not entitled to any other

7 protection.8 And there's no logical leap there.9 There's no rational extension. The very purpose of

10 the act is to protect art, to protect artists of11 well-known stature and recognize works, to protect12 them.

13 Then you have a minimal exception that14 says you can move art, and that can't be15 actionable. (Inaudible) -- not to say, well, the16 act could not have ever intended to give them any

17 other form of protection, I just suggest, is not18 reasonable, not an appropriate extension.

19 If I can turn a little bit to the issue20 then of damages. The district court, though,21 finding on behalf of my client with respect to22 breach of contract with the City for their

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1 destruction of his lifetime's work, found in the2 end that they could not determine the appropriate

3 damages in this case because he -- Mr. Kelley4 failed to present evidence of the damages in which5 he failed to mitigate. I would suggest that that6 gets the law of Illinois backwards.7 The court found that the only testimony,8 reliable testimony, was that the value of the9 flowers in Wildflower Works had an approximate

10 value of $1.5 million. He also found that the --11 at least 55 percent of those wildflowers had been12 destroyed. That leads us to a very simple13 calculation of $825,000.14 Now, the court takes issue with the fact15 that my client didn't say how much it would have16 cost him to move those other flowers. Well, that's17 not his burden. That's the burden of the defendant18 who is claiming that they failed to mitigate our19 damages by removing -- ironically, by removing20 flowers before the City can destroy them.21 JUDGE SYKES: There's kind of a threshold22 question here, though, about what the terms of this


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1 implied contract are.2 MR. MARCUS: Yes, yes, and I understand that,3 and I was waiting to -- for rebuttal to discuss4 those, but I'm happy to discuss those now.5 With respect to the terms of an implied6 contract, promissory expression, which was relied

7 upon by the district court, states that a8 promissory expression is inferred from the facts,9 circumstances and expression by the promisor

10 showing an intent to be bound.11 In this case, Margaret Burroughs,12 commissioner of the Park District, when asked

13 regarding the obligation of Mr. Kelley to seek an14 additional permit, responded -- responded no,15 you're there. You don't have to do anything else.16 That was an expression from a specific question

17 regarding whether or not he was rightfully on18 public land.

19 Regarding the other issue on whether or20 not she had the right to bind the City, that goes21 to the issue of corporate authority. And I would22 point out that the district court's position on

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1 there is dead on. At 70 ILCS 1505 1701 reads in2 relevant part:

3 "The commissioners of such district4 constitute the corporate authority thereof and have5 full power to manage and control all the officers6 and property of the district and all parks."7 JUDGE SYKES: Commissioners is plural.8 MR. MARCUS: Commissioner is plural, that's9 correct. The only reasonable interpretation of

10 this statute is that the legislature gave each11 individual commissioner the authority and the12 power, full power, to manage and control the13 officers and property of the district.14 JUDGE SYKES: That runs against the grain of15 almost all municipal law.16 MR. MARCUS: Your Honor, it's -- it's not for17 the courts to rewrite the legislation, though. To18 the extent that this -- to the extent the statute19 was drafted in a manner to clearly grant authority20 for individuals in addition to the commission,21 there's a separate -- there's a separate set of law22 dealing with how the commissioner has to act. That

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1 law -- those laws do not say this in any way --2 JUDGE SYKES: Well, it goes beyond that. It3 says, "No member of the board of any park district4 can create any debt, obligation, claim or liability5 for or on account of the Park District." So --6 MR. MARCUS: But I believe that's in acting of

7 the commission.8 JUDGE SYKES: That's not what it says. I9 think we have to read these statutes together.

10 MR. MARCUS: Well, no, I -- I understand that.11 But then you're effectively reading out the12 language of 17 -- 70 1505 701. You're saying it's

13 superfluous and/or it's --14 JUDGE SYKES: (Inaudible) -- in light of what15 12054-6 says, which is that no individual member16 can bind the board.

17 MR. MARCUS: Well, to the extent it's18 contrary, then I think this court has to make the

19 determination of whether or not a party should be20 able to -- should be entitled to rely upon a statue21 which says the individual they're dealing with22 has -- has corporate authority. I --

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1 JUDGE SYKES: Well, that's an estoppel

2 argument. An estoppel against the government is

3 very difficult to obtain.4 MR. MARCUS: Well, I would suggest in this

5 case where -- and even the cases relied upon by the

6 City in that situation, where the City has allowed

7 parties to maintain property on public land for

8 multiple years. In this case, 20, and 10 without a

9 permit. The cases actually cited by the City have

10 found estoppel in those situations.

11 UNIDENTIFIABLE JUDGE 1: What about the

12 permit? How did the previous permits -- how were

13 they approved?

14 MR. MARCUS: The previous permits always came

15 from the City. There was never any formal

16 obligation started by Mr. Chapman Kelley with

17 respect to attaining the approval. Those would

18 just simply be forms that would come out from the

19 City which he would expect. When they didn't stop

20 coming, he expected that he had the continued right

21 to use these premises.

22 UNIDENTIFIABLE JUDGE 1: Was that the -- is


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1 the City the commissioner, or is that somebody

2 else?

3 MR. MARCUS: Was the City the commissioner?

4 Well, it would be -- it was issued by the Park

5 District.

6 UNIDENTIFIABLE JUDGE 1: Yeah, commissioners.

7 MR. MARCUS: Yes, the commissioners, which

8 would include each individual commissioner as well.

9 UNIDENTIFIABLE JUDGE 1: Well, it included --

10 it was -- I assume it was approved by more than

11 one. Is that a wrong assumption?

12 MR. MARCUS: Your Honor, I -- I don't know

13 the --

14 UNIDENTIFIABLE JUDGE 1: I was a state senator

15 once. I didn't -- couldn't do anything by myself.

16 MR. MARCUS: Well, I would -- actually, I

17 would suggest that you didn't. I would suggest you18 likely had the authority to hire staff. I would

19 suggest you likely had the authority which to take

20 any obligations that you had for your staff and get

21 reimbursement from the state with respect to that.

22 And you did have the authority to effectively bind

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1 the City with respect to ultimate economic

2 obligations that -- sorry, not the City -- the

3 state would have to comply with.4 And I would suggest that this is no

5 different than a corporation, than any corporation.

6 That -- that corporations are required to act at

7 sometimes in board and act at sometimes other,

8 outside of the board, is perfectly consistent with

9 interpretation that you might want to have a Park

10 District commissioner who's appointed by the City

11 with some authority to act in addition with their

12 ability to act -- when acting in connection with

13 the commission.

14 And I'll save my remainder of time that

15 I have for rebuttal. Thank you.

16 JUDGE SYKES: Thank you. Ms. McGarry.

17 MS. McGARRY: Good morning, your Honors. My

18 name is Annette McGarry, and I represent the

19 Chicago Park District in this matter.

20 I'd like to make one issue clear right

21 up front just after the last argument. There was a

22 lot of discussion about the City. This isn't the

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1 City. It is the Park District, which is different.

2 And, you know, my client wants to make sure that

3 the distinction is clear.

4 We're here today to tell you that we

5 believe that the trial court's decision on VARA was

6 correct as a matter of law, as a matter of fact and

7 a matter of just common sense.

8 The court did find that VARA did not

9 apply to the wildflower garden because the garden

10 must have been copyrightable. And while there was

11 evidence of what was the description of the garden,

12 Mr. Kelley testified or put in evidence of what was

13 original elements about the garden.

14 He discussed the garden being elliptical

15 shaped. Well, there have been other elliptical

16 shaped gardens out there. He chose the flowers and

17 wildflowers. Well, there's other gardens out there18 that are wildflowers.

19 We put forth that in order to be

20 copyrightable, something about that garden had to

21 be original. And the element or the originality

22 was their burden to prove, and they never put that

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1 forth.

2 There was also some other information

3 regarding copyrightability that came out.4 Mr. Kelley did describe his garden as a vegetative

5 management system. 17 U.S.C. 102, when it

6 discusses what is copyrightable, specifically

7 precludes anything that is a system. There was

8 never any evidence or testimony distinguishing what

9 part of his garden was a system and what wasn't a

10 system.

11 UNIDENTIFIABLE JUDGE 2: Are these perennials,

12 or are they annuals? What -- I don't know that

13 much about flowers.

14 MS. McGARRY: I understand they're wildflowers

15 that come back every year. They're native to the

16 area.

17 UNIDENTIFIABLE JUDGE 2: So the plant itself

18 that he planted 20 years ago is the same plant

19 that's there, or does it die out and --

20 MS. McGARRY: I believe they come back every

21 year, yeah.

22 The court also concluded even if it was


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1 copyrightable, somehow there was an error made on

2 that issue, VARA would still not apply because it

3 was site specific.

4 JUDGE SYKES: Before we get to that, let me

5 just confirm. You're not challenging on appeal the

6 finding of the lower court on the status of this

7 work as a work of visual art.

8 MS. McGARRY: Well, we believe -- I understand

9 what you're saying because --

10 JUDGE SYKES: If you're not challenging that,

11 then I think the originality argument is out the

12 door.

13 MS. McGARRY: 17 U.S.C. 101 describes a visual

14 work as a picture, a sculpture, et cetera. And it

15 specifically excludes anything that is not

16 copyrightable. We believe we get to the same point

17 going where the Visual Art Right Act doesn't apply18 because it's not copyrightable.

19 JUDGE SYKES: You're accepting that this is a

20 sculpture or a painting as the district court

21 found?

22 MS. McGARRY: Correct.

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1 JUDGE SYKES: Okay.

2 MS. McGARRY: Okay. First of all, we believe

3 that Chapman Kelley waived any arguments to4 complain about the finding in the Phillips case

5 regarding site specific. There was motions filed

6 in court during the trial regarding this. There

7 was a pretrial motion that was based on Phillips

8 that was filed.

9 There was also -- the judge gave some

10 preliminary findings basing it on Phillips and site

11 specific, and not once was there ever a murmur of

12 disapproval that the court was using the Phillips

13 case to describe site-specific work not being

14 covered under VARA.

15 UNIDENTIFIABLE JUDGE 1: So that you're saying

16 that they waived any challenge that site-specific

17 is a requirement or at least a possibility of

18 saying it isn't appropriate?

19 MS. McGARRY: Yes, I am. Absolutely. They

20 waived it. It was never anything that was ever

21 raised during a three-day bench trial and any

22 post-trial briefing.

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1 JUDGE SYKES: I thought there was all kinds of

2 testimony about whether this was or wasn't site

3 specific and argument around that whole issue.

4 MS. McGARRY: I'm not saying they waived any

5 argument whether or not it was site specific. I'm

6 saying they waived any argument with regards to the

7 application of Phillips.

8 JUDGE SYKES: Phillips is not a precedent of

9 this circuit, so that doesn't matter.

10 MS. McGARRY: The lower court did rely on

11 Phillips.

12 JUDGE SYKES: I understand that. But it

13 wasn't obliged to. I mean, there wasn't any -- any

14 need to say this is -- this case doesn't apply.

15 MS. McGARRY: Okay. Phillips holds the

16 first -- the First Circuit held that Phillips and

17 VARA did not apply to site-specific work. And18 their reasoning was, first of all, that VARA is

19 silent on site-specific work, and that it was not

20 their job to interpret something into a statute.

21 It was Congress's job to amend the statute.

22 JUDGE SYKES: Actually, that's an argument in

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1 your opponent's favor. If the statute is silent as

2 to site-specific art, it doesn't exclude it. If

3 it's art, it's included, right?4 MS. McGARRY: Actually, I'm -- can I finish my

5 argument? And then I think you'll understand why

6 it isn't in my opponent's favor.

7 It is our job to interpret a statute so

8 that the entire statute would not -- would remain

9 intact. If we are to look at the exception of

10 VARA of the public presentation example of

11 17 U.S.C. 10(c), where it says the placement and

12 the lighting are two things. That if it's

13 destroyed, it's not covered.

14 JUDGE SYKES: Well, that's the flaw in the

15 Phillips' court analysis. It held -- or I'm not

16 sure if this was a factual finding based on the

17 expert testimony in the case or if this was a legal

18 conclusion on the interpretation of the statute.

19 It's really hard to sort out that opinion.

20 But the court either found or held that

21 to move site-specific art is to destroy it. And

22 I'm not sure that's right. Why is that right?


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1 MS. McGARRY: Well, I think --

2 JUDGE SYKES: I mean, the exception says that

3 a modification of a work of visual art which is the

4 result of the public presentation, including

5 lighting and placement. So if a different

6 placement is engineered for the art, it's an

7 exception to liability.

8 MS. McGARRY: Right.

9 JUDGE SYKES: So it implies that what happens

10 when site-specific art is moved is not destruction

11 but modification.

12 MS. McGARRY: Well, I think you need to -- to

13 take into account, though, the definition of

14 site-specific art.

15 JUDGE SYKES: Well, we don't have a definition

16 of site-specific art because it's not statutory.

17 All we have is a bunch of testimony from artists in18 the Phillips case about what site-specific art is

19 in the artistic community. But, you know, we're

20 not bound by that.

21 MS. McGARRY: I believe that we do have some

22 testimony, though, in this case from the artist

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1 himself about how his art is site specific.

2 JUDGE SYKES: He also maintains that if it was

3 moved, it's not a destruction, that it could be4 moved.

5 MS. McGARRY: Well, he testified that he

6 rented an airplane and a helicopter and flew around

7 the city to choose his spot for his garden. And he

8 chose this spot.

9 And one of the things that was important

10 about this spot to him was the three air vents from

11 the parking garage along the major axis of the

12 elliptical shape and the skyline in the back.

13 There's tremendous amount of testimony on that.

14 His expert testified that it was site specific.

15 If we move it, even as he suggests, that

16 we can roll it up and take it some place else,

17 where are we going to find three air vents or,

18 frankly, six, because there were two ellipses, with

19 that specific axis that he wanted with the

20 buildings and the background? It is site specific.

21 It involves the location with the art. That's

22 part of his art.

Page 32

1 JUDGE SYKES: So moving it would modify it.

2 It wouldn't destroy it.

3 MS. McGARRY: I think moving would destroy it.

4 It would take what he says are major elements, the

5 vents and the skyline, out of his artwork.

6 JUDGE SYKES: Well, I'm not sure the record

7 supports that conclusion. And as a legal matter,

8 what we're doing here is trying to interpret the

9 statute to see whether this type of art is included

10 or excluded.

11 So again, I'm trying to get a handle on

12 whether this is a statutory interpretation argument

13 or whether this is a fact-based argument about

14 what's in the record. You know, it may be a little

15 bit of both.

16 MS. McGARRY: I believe it's a little bit of

17 both. It's a question. Is site-specific art18 covered, and if it is, is this site-specific art?

19 So for purposes of argument, we can say

20 this is site-specific art, but then we fall into

21 the exception that we can't move it, so it's not a

22 violation without destroying it. We didn't destroy

Page 33

1 it out of negligence.

2 JUDGE SYKES: The exception says you can move

3 it.4 MS. McGARRY: Pardon me?

5 JUDGE SYKES: The exception says you can move

6 it.

7 MS. McGARRY: It says that it does not apply.

8 JUDGE SYKES: It says the statute doesn't

9 apply. A modification of the work that comes about

10 by virtue of placement is not a destruction,

11 distortion, mutilation or other modification as

12 described in Section A3.

13 So unless you, you know, in the course

14 of moving it, I don't know, drop it or something so

15 that the whole thing is destroyed, you haven't

16 violated the statute.

17 MS. McGARRY: But we can't move it without

18 destroying it because then the vents are gone and

19 the skyline's gone. And everything that he chose

20 while he flew around in his plane as part of his

21 artwork is no longer there.

22 JUDGE SYKES: Why isn't that a modification


10/18


10 (Pages 34 to 37)

Page 34

1 instead of a destruction, since the statute

2 specifically says modification?

3 MS. McGARRY: I believe that the air vents,

4 and there was testimony that supported this, were a

5 vital part of his artwork.

6 UNIDENTIFIABLE JUDGE 1: Well, that would be

7 because he had to work around it, I suppose. I

8 mean, he -- the idea of those being, I guess,

9 artistic or symmetrical or something or other, he'd

10 look at a place, you know, Grant Park where

11 everybody can see it, a lot of people go by and see

12 the sign that he did it and everything. That's

13 very -- that's a very attractive place to have an

14 acre-and-a-half of art.

15 Obviously, that's more enticing than a

16 park miles away that not very many people go to.

17 But if you -- I don't know how you roll it up. If18 you roll it up and then plop it down somewhere

19 else, the absence of those vents is not very

20 consequential. And certainly, the absence of the

21 background, whether it's mountains or buildings, is

22 gonna be different.

Page 35

1 But wouldn't it -- if it could be moved,

2 wouldn't it remain intact as the way he set it out?

3 I don't know about the perimeter. (Inaudible).4 But I'm talking about just the -- whatever is in

5 the picture itself.

6 MS. McGARRY: Your Honor, I don't disagree

7 with you on that except that the testimony at trial

8 from Mr. Chapman, the artist, said the vents in

9 the -- on the major axis across the ellipses were a

10 part of his artwork. And unless we can find six

11 more vents like that that would fit some place, it

12 would destroy his artwork as he sees it.

13 UNIDENTIFIABLE JUDGE 1: Well, in order to

14 preserve the -- I mean, to follow the law and if

15 this thing is movable -- and any different place is

16 gonna be different. But does that mean no matter

17 what, no matter where you move it it's not going to

18 be -- it's not gonna retain its original integrity?

19 MS. McGARRY: I believe so. Anywhere you move

20 it, unless you can find something exactly the same,

21 it would be different.

22 UNIDENTIFIABLE JUDGE 1: But that's the law

Page 36

1 you're telling us to establish here.

2 MS. McGARRY: I'm sorry?

3 UNIDENTIFIABLE JUDGE 1: You can't -- you

4 can't move it.

5 MS. McGARRY: You can't move --

6 UNIDENTIFIABLE JUDGE 1: No matter what.

7 MS. McGARRY: -- site-specific work without

8 destroying it.

9 UNIDENTIFIABLE JUDGE 1: There's not gonna be

10 any site that's gonna be identical.

11 MS. McGARRY: You can't --

12 UNIDENTIFIABLE JUDGE 1: So this kind of a

13 sculpture, I guess we're agreeing to call it, can't

14 be moved.

15 MS. McGARRY: Correct, without destroying it.

16 JUDGE SYKES: That's too extreme a position.

17 That leaves the modification concept completely out18 of the exception.

19 MS. McGARRY: And -- and -- and I -- I don't

20 agree. I mean --

21 UNIDENTIFIABLE JUDGE 2: Do we have to

22 conclude that to decide the case in your favor? Do

Page 37

1 we have to go that far?

2 MS. McGARRY: Absolutely not. Absolutely not.

3 JUDGE SYKES: Well, propose a middle ground4 then where you win.

5 MS. McGARRY: We've got about five more

6 reasons why --

7 JUDGE SYKES: That was the Phillips case, the

8 extreme position.

9 MS. McGARRY: You don't even have to get to

10 site specific. It's not even a discussion that has

11 to be had because VARA, the statute, right off the

12 bat wouldn't apply if it wasn't copyrightable.

13 JUDGE SYKES: The threshold for originality is

14 extremely low.

15 MS. McGARRY: I understand that. The next

16 option would be 17 U.S.C. 113(d)(1)(a), the

17 building exception. Where if the work is

18 incorporated into a building --

19 UNIDENTIFIABLE JUDGE 2: That garage stands

20 quite well without -- without the garden above it.

21 Ms. McGARRY: Well, it's actually -- the

22 reason this whole thing started is because the


11/18


11 (Pages 38 to 41)

Page 38

1 roof's falling down in chunks in the garage, and it

2 has to be repaired.

3 However, Chapman Kelley's position is it

4 wasn't incorporated into the garage, while our

5 position is because you specifically incorporated

6 the vents that you liked so much over the garage,

7 it is incorporated into the garage. So there is

8 the building exception that it was.

9 Then we get to the exception that it

10 doesn't apply if it was pre-1991. The garden was

11 installed in 1984. VARA didn't come into play

12 until '91. So we're saying VARA wouldn't even

13 apply at all because it was way before.

14 JUDGE SYKES: Well, the statute says that

15 preexisting works get a limited degree of

16 protection, right?

17 MS. McGARRY: Right.18 JUDGE SYKES: The fact that this was pre-1991

19 doesn't take Wildflower Works completely out of the

20 statute.

21 MS. McGARRY: And then finally, in his

22 contracts or permits that were entered into,

Page 39

1 specifically the '88 permit, which was the one that

2 was a result of a lawsuit that Mr. Kelley filed

3 previously, there were specifically no proprietary4 rights granted to Mr. Kelley in this garden. That

5 was something he agreed to.

6 The permit was renewed again in '89. It

7 was renewed again in '90. And then in '92 it was

8 renewed for the last time. So it expired in 1994.

9 We're saying he waived any rights.

10 JUDGE SYKES: The statute doesn't require that

11 the artist still hold the title.

12 MS. McGARRY: The statute, though, does allow

13 him to change his rights by contract. And we're

14 saying because he accepted a permit that gave up

15 his proprietary rights, then --

16 JUDGE SYKES: Before the statute was enacted?

17 MS. McGARRY: The '92 permit was the -- the

18 renewal.

19 JUDGE SYKES: The rollover.

20 MS. McGARRY: Was a rollover.

21 UNIDENTIFIABLE JUDGE 1: So if he had gotten

22 paid for this -- and I don't know about maintenance

Page 40

1 and all that. But if he gave up his proprietary

2 right, at some point the Park District would be

3 able to destroy it.

4 MS. McGARRY: Correct.

5 UNIDENTIFIABLE JUDGE 1: Doesn't matter

6 that -- about his integrity or his reputation or

7 anything else. He doesn't have any -- by not

8 having a proprietary right, they have exclusive

9 control to remove it or destroy it or change it.

10 MS. McGARRY: I believe the '88 permit gave

11 him the right to remove the plants if -- if we told

12 him. He could come get his plants.

13 UNIDENTIFIABLE JUDGE 1: Which he didn't want

14 to do.

15 MS. McGARRY: But otherwise, there was no

16 proprietary rights attached to them.

17 UNIDENTIFIABLE JUDGE 1: That was the only18 alternative. He could remove it, which made it

19 removable, I guess.

20 JUDGE SYKES: So the plants were his.

21 MS. McGARRY: The plants were his if he chose

22 to get them. He was asked to get them many times,

Page 41

1 and he didn't want them. He did testify at trial

2 that to take them now would be mean. We weren't

3 really sure what that meant.4 UNIDENTIFIABLE JUDGE 1: But the difference is

5 another right -- (inaudible) -- where it's

6 dependent on the structure, you couldn't remove it

7 because that would damage the structure, I assume,

8 or alter the structure.

9 MS. McGARRY: Well, he could have taken the

10 plants but -- and he's arguing that --

11 UNIDENTIFIABLE JUDGE 1: Can he take a foot of

12 dirt with it?

13 MS. McGARRY: He's arguing, though, that the

14 plant aren't just the art. His art was made up of

15 other things. So he could take one element of his

16 art.

17 UNIDENTIFIABLE JUDGE 1: Well, he could -- I

18 don't know -- see, the movability here is hard for

19 me. But assuming he could roll it up like they do

20 sod, and then roll it back, then it's more than

21 plants. It's -- the whole thing puzzles back

22 together, I guess.


12/18


12 (Pages 42 to 45)

Page 42

1 MS. McGARRY: Yeah. I don't think there was

2 ever any discussion on how exactly if he were to

3 remove the plants, because he never wanted them,

4 what exactly would happen, could he take dirt,

5 could he take the grass or anything with it.

6 UNIDENTIFIABLE JUDGE 1: Of course, your

7 people are complaining you got weeds and other

8 stuff in there.

9 MS. McGARRY: It was -- Mr. Kelley maintained

10 the garden for certain years with volunteers, and

11 then he did stop. And after that it did become the

12 Park District's responsibility, and it did get

13 quite weedy. So that was an issue.

14 Finally, we get to the issue of damages.

15 JUDGE SYKES: If I could just clarify

16 something about the 1988 permit that was issued by

17 the Park District in connection with the18 settlement.

19 MS. McGARRY: I believe -- there was a lawsuit

20 in 1988 that he filed. And I believe part of the

21 agreement was we'll give you another permit.

22 JUDGE SYKES: Oh, so it was something that the

Page 43

1 Park District issued to him, not something that he

2 signed?

3 MS. McGARRY: That's what I understand, yes.4 JUDGE SYKES: Then there isn't a waiver

5 because a waiver under VARA has to be in writing

6 and expressly done.

7 MS. McGARRY: I believe he presented to the

8 board of the Park District, and there are minutes

9 that are also in the appendix.

10 JUDGE SYKES: He didn't actually sign and

11 execute a waiver. The City -- or the Park District

12 issued a permit and then that was --

13 MS. McGARRY: And he accepted it.

14 JUDGE SYKES: -- renewed.

15 MS. McGARRY: Yes.

16 JUDGE SYKES: Was renewed every year. But

17 that's not -- I mean, it might be a waiver under

18 some other doctrine, but it's not a waiver of the

19 statutory rights.

20 MS. McGARRY: Okay.

21 JUDGE SYKES: Okay.

22 MS. McGARRY: To get to damages, there was no

Page 44

1 evidence of damages at trial regarding the contract

2 claim. There was no evidence of what it would cost

3 to remove them as he had the right to remove them.

4 There was no cost of what it would take to retrieve

5 them. There was no cost of what it would take to

6 remediate the land, which was a requirement of the

7 '88 permit that kept getting renewed.

8 JUDGE SYKES: What kind of an implied contract

9 theory was this exactly? I have a hard time

10 figuring that out from the district court's order.

11 And the measure of damages is different for

12 different kinds of implied contracts.

13 MS. McGARRY: Right.

14 JUDGE SYKES: And so in order to decide

15 this -- I mean, there's statutory issues, as you've

16 argued, that are impediments to the contract claim

17 here.18 But let's say Mr. Kelley can get over

19 the statutory hurdles. Is this a promissory

20 estoppel theory? Is this an implied in law

21 contract, an implied in fact contract, some other

22 kind of quality contractual theory? I don't know.

Page 45

1 MS. McGARRY: We're struggling with that, too,

2 your Honor. We're not far behind you. What I

3 believe is they're trying to set forth some sort of4 an implied contract theory that --

5 JUDGE SYKES: There's a whole lot of those,

6 and the measure of damages is different for each

7 one. And often it's a reliance based kind of a

8 measure, which we don't really have in this

9 context.

10 MS. McGARRY: I'm sorry, we have or we do not?

11 JUDGE SYKES: We don't have reliance damages.

12 MS. McGARRY: I -- I don't know if they're --

13 you know, they're putting forth and -- and, quite

14 honestly, we've -- in all the post-trial briefing

15 and everything, the damages numbers have moved from

16 a million-and-a-half to 25 million to all over the

17 place. We've never been able to really figure out

18 what they're asking for in damages and what they're

19 putting forth.

20 There's the contract issue that they say

21 Margaret Burroughs bound them over in a contract,

22 blah, blah, blah, which, obviously, we disagree


13/18


13 (Pages 46 to 48)

Page 46

1 with because we don't believe that one commissioner

2 could possibly bind the whole board. Especially a

3 commissioner at a social event that they went and

4 tracked her down and walked in and said, "Hey, do

5 we need a permit?"

6 If there's an estoppel issue, it doesn't

7 really make much sense that there is one because

8 Mr. Kelley knew how to apply for permits. He had

9 applied for permits before. And he certainly knew

10 going to a social event and tracking down a

11 commissioner was not the proper way to get a

12 permit. So he knew that wasn't correct.

13 I believe they're just upset that -- you

14 know, and they're putting the permit in there, that

15 we violated it, and that we shouldn't have moved

16 it. What is their exact contract claim? Your

17 Honor, we've never gotten a really clear answer on18 it. Thank you.

19 JUDGE SYKES: Thank you.

20 MR. MARCUS: Your Honors, I believe my time is

21 very limited, so I will simply state this.

22 JUDGE SYKES: One minute.

Page 47

1 MR. MARCUS: The City -- thank you. The City

2 does not -- did not and cannot provide the middle

3 ground which this court asked for. The truth of4 the matter is is that VARA was drafted to protect

5 site-specific art. This minimal exception does not

6 preclude it from any type of protection. That's

7 just an erroneous view of the law.

8 With respect to the last comment made,

9 well, they're upset we moved it. We're not upset

10 they moved it. We would have loved the opportunity

11 to have moved it. They came, they destroyed it

12 where it sat for 20 years. They destroyed

13 Mr. Kelley's work, his entire lifetime's work in a

14 matter of days. That is what we are complaining

15 about. With that I'll rest. Thank you.

16 JUDGE SYKES: Thank you, counsel. And our

17 thanks to both counsel. The case is taken under

18 advisement.

19 END OF AUDIO RECORDING

20

21

22

Page 48

1 CERTIFICATE OF OFFICER

2

3 I, AMY K. ZUMBROCK, a Certified

4 Shorthand Reporter of the State of Illinois, do

5 hereby certify that I transcribed the audio

6 recording aforesaid, and that the foregoing is as

7 true and complete a transcription as possible from

8 the audio recording under my personal direction.

9 IN WITNESS WHEREOF, I do hereunto set my

10 hand at Chicago, Illinois, this 30th day of

11 September, 2009.

12

13

14

15 Certified Shorthand Reporter

16

17 C.S.R. Certificate No. 84-4356.18

19

20

21

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27:2 28:16,16,18fit 35:11five 37:5flaw 29:14flew 31:6 33:20flower 15:8,8,10,10flowers 17:9,16,20

24:16 25:13

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45:13,19forward 6:16found 3:7 4:12 17:1,7

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idea 34:8identical 36:10ILCS 19:1Illinois 17:6 48:4,10impact 9:11 13:12impediments44:16


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yeah 22:6 25:21 42:1year 25:15,21 43:16years 7:3 8:19 12:10

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Z

ZUMBROCK 48:3

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84-4356 48:1788 39:1 40:10 44:789 39:6

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92 39:7,17

Chapman Kelley v. Chicago Park District Oral Argument Manuscript Transcript Sept.10 2009

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