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Chapman Kelley’s Mutilated Garden 

The Seventh Circuit is set to decide if the Park District had the right to destroy an artwork.

Wildflower Works

Wildflower Works

When the Chicago Park District announced last month that it had hired a New York landscape architect to redesign the northeast corner of Grant Park on a $45 million budget, including the controversial site of the new Chicago Children's Museum, there was no mention of an ongoing legal battle over what it's already done in that area. But there's a decision pending in the Seventh Circuit Court of Appeals that's expected to have repercussions for artists and public art all over the country. The case addresses the question of whether artists have the legal right to protect their work from mutilation or destruction.

The plaintiff is artist Chapman Kelley, whose Wildflower Works, a 1.5-acre garden in the part of Grant Park known as Daley Bicentennial Plaza, was deliberately hacked up by the Park District five years ago. In a mixed decision last year, a U.S. District Court ruled against Kelley's claim that Park District officials violated his rights as an artist when they shrank and changed his work so drastically as to make it unrecognizable. Kelley's lawyer for the appeal, Kirkland & Ellis partner Alex Karan, noted on his personal blog that he took this case pro bono for reasons beyond his friendship with Kelley—he's troubled that the district court ruling not only denies legal protection to "any site-specific public art" but "throws into question any artist's rights."

According to the brief Karan's team filed, the lower court ruling is so flawed that even work by Leonardo da Vinci or Michelangelo would fail to qualify for protection. "If this ends up being the end of my legal career," Karan blogged as he was working on the opening brief last spring, "it will be on a high note."

Kelley, a painter who'd done large wildflower installations in Dallas, had the enthusiastic support of the Park District when he planted his garden, at his own expense, back in 1984, and it was greeted with awards and a heap of glowing publicity. A living version of a Kelley painting, it consisted of two ovals (the elliptical shape is a Kelley trademark), each the size of a football field, framed by gravel paths and densely planted with 60 varieties of native flowers blooming white at the outer edges and more intensely pigmented toward the center. Planned to flower "sequentially" from spring to fall and, once fully established, to be self-sustaining, it was green ahead of its time—designed to thrive without watering, fertilizer, or insecticides. It was maintained by Kelley and a little army of volunteers, and he says he never heard anything about it but compliments except during a glitch in 1987, when it was accidentally overwatered and there were complaints about it looking ragged. He's convinced that in 2004, when it had gone "15 years without a drop of artificial water," it made Millennium Park's fledgling Lurie Garden with its embedded sprinklers and fenced trees look so bad by comparison that the Park District decided on sabotage.

As he was preparing to celebrate the 20th anniversary of Wildflower Works, Kelley says, he was called to a meeting with Park District staff members who jolted him by announcing that the garden was about to get a makeover. He protested, but within a week the surgery was under way. More than half of the 68,000-square-foot garden was removed, and the shape of what remained was radically changed. The twin ovals were cut down to rectangles, fenced in by incongruous hedges, and surrounded by high-maintenance lawn and masses of rose bushes. Kelley told me it cost the Park District more than $700,000 to install this meaningless hodgepodge, which subsequently required twice-weekly watering. He argues that he should have at least been given a chance to move the artwork that he considered the culmination of his long career. His lawsuit charges the Park District with breach of contract and violation of his rights under the 1990 federal Visual Artists Rights Act. (The Park District did not return calls for comment.)

Under VARA, artists have the right to protect their work from modification or destruction no matter who owns it, and must be given 90 days to remove any piece that's threatened. But VARA defines an artwork as a painting, drawing, print, sculpture, or photograph original enough to qualify for copyright. When Kelley first filed his suit, there was speculation about whether the court would accept a garden as an artwork. As things turned out, that was no problem: District Court judge David H. Coar found that Wildflower Works qualified as either a painting or a sculpture. The problem was the other part of the definition: according to Judge Coar, Wildflower Works wasn't different enough from other gardens (such as those at Monticello), to be copyrightable, and therefore wasn't covered. He also adopted the logic of a highly controversial 2006 ruling by another appeals court in a battle over the removal of sculpture from a South Boston waterfront park.

In that case, sculptor David Phillips had been commissioned to create an installation that included 27 pieces of his work: frogs, crabs, abstracts. A year after it was installed, the real estate firm that manages the park had a change of heart and decided that the sculpture had to go. Phillips sued to prevent that, and experts testified that location is an integral part of site-specific art and that relocation amounts to destruction. The district court, citing an exception to VARA that allows changes in lighting and placement, ruled that moving the pieces would not be a VARA violation. Phillips appealed, and the First Circuit Court of Appeals went the district court one better, ruling that VARA doesn't protect site-specific art at all. The art world was appalled, but until now the decision hasn't been challenged.

Karan and his team argue that Judge Coar's "hyper-stringent" standard of originality "bears no relationship to the extremely low threshold for copyright protection established by the Supreme Court." They also argue that he made a mistake when he adopted the First Circuit's "fatally flawed conclusion" that VARA offers no protection for site-specific art. There wouldn't be an exception for placement, they reason, if site-specific work wasn't supposed to be covered, since it's the only kind of art that can be destroyed merely by being relocated. This is hugely important to artists all over the country, they maintain, but actually irrelevant to Kelley's case, since, according to their argument, Wildflower Works isn't site-specific art anyway. Had the Park District simply moved it, instead of destroying it where it stood, they wouldn't be in court at all.

Instead, they argue, the Park District "did something equivalent to painting a huge garish mustache on the Mona Lisa—it took a piece of art which contained at its heart a message about the beauty of native and ecologically-sustainable flowers and polluted it with non-native resource-intensive shrubbery and roses." If the First Circuit's interpretation of VARA prevails, they write, the Park District could install Mickey Mouse ears on the Bean.

Last January, about the time he started work on the Kelley case, Karan, who's 37 years old, learned that he has a rare and aggressive cancer. He's chronicled his experiences with it, including the onset of a second deadly illness as a complication of his treatment, on his blog at akaran.wordpress.com. When the date for oral arguments came around in September, he blogged that he "actually put on a suit and headed downtown" to hear "my good friend Micah" Marcus, a Kirkland & Ellis associate, present the case. What became clear, he wrote, "was that the judges had already made up their minds in our favor. For each argument that the City lawyer raised, the court responded with one of the arguments that we had briefed and made clear that they thought the City was dead wrong."

"As difficult as it was to make it to the courthouse," Karan continued, "it was a delight watching all of the work on this case reach fruition. And it will really be exciting to get an opinion from the Seventh Circuit that affects the rights of artists across the country."

Last week, after three weeks of silence on the blog, Karan's wife logged an update: he'd been sent home from the hospital, she wrote. "We're giving up on chemo and focusing on trying to get the best quality of life for the time remaining." Over Thanksgiving weekend he was hosptialized again.

A decision on Chapman Kelley v. Chicago Park District can't arrive too soon.   v

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