Art is of the creative, visual, aural, or script. Chapman Kelly's art is indeed a reflection of his personality, in that it not only expresses his philosophy of plant life in its original and native state, but has as his design element an arrangement of the native plants that creates a color change flow throughout the season.
Allan Yeager, musician, educator and father-in-law of Alex Karan.
Mr. Torres:
As I recall, Judge Coar's ruling that the Wildflower Works was not copyrightable was based on the assertion that. Kelley was not the first to create art out of garden elements,flowers, dirt, etc. This stringent criteria for originality bears to relationship to what the Copyright Law requires.
Mr.Torres:
Based on abundance evidence presented at trial,the trial court held that the Wildflower Works was a work of visual art for purposes of VARA. The Park Distrit chose not to appeal this issue, making it not one of the issues on appeal.
Mr. Torres, I agree with Mr. Allan Yeager's statement. I happened to find this phrase on the internet: "The Visual Artists Rights Act recognizes that visual art plays an important role in our cultural life, and that artists who have put their hearts and souls into their creations deserve protection for their efforts. Representative Kastenmeier, June 5, 1990." Artists such as Chapman Kelley strongly assert that it is they who determine what is art and not a city planner, park superintendent or mayor.
"Art is the selective re-creation of reality according to the fundamental values of the artist. A garden is realty. By this objective measure, Kelley's garden was not art and therefore was not protected by VARA."
Mr. Torres: To support your theory, you'll need to present examples from nature of wild flowers growing in specifically-shaped patterns and carefully orchestrated color sequences, all bordered and thus delineated by a material (like gravel) that facilitates viewing of said plantings. Good luck with that....
Gardens are created and tended to by gardeners. Kelley has never described himself as one. That others describe him as a gardener is also absent from the narrative. Instead, Kelley is a painter who was professionally trained at the Pennsylvania Academy of the Fine Arts. He describes himself as a painter. He deemed the Chicago Wildflower Works 1984 - 2004 to be a work of art, his art.
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Of the many issues related to this case, none are more important than whether or not Kelley's garden is art. VARA defines the term in part only by naming examples such as "painting" and "sculpture." But that still leaves open the question regarding just what it is that makes something art. What is needed is a formal definition that names the essential attributes common to all works of art from pre-history to the present.
District Court Judge David H. Coar's ruling that 'Wildflower Works' qualifies as either a "painting" or a "sculpture" defies both logic and common sense. He would be hard pressed to explain in fundamental terms what the garden had in common with, say, Michelangelo's 'David.'
What is valid about Judge Coar's opinion is that 'Wildflower Works' is not sufficiently different from other gardens to be covered by VARA. In the landmark Supreme Court copyright case of 1903, Justice Oliver Wendell Holmes's argument for the majority emphasized the uniqueness of individual works of art. Such a quality emerges as "the personal reaction of an individual," he argued, since "[p]ersonality always contains something unique." It is this distinctive quality that copyright law recognizes and protects. Try finding Kelley's "personality" in his original garden. It isn't there.
Copyright protects the distinctive expression of an idea. In art, the sorts of ideas expressed are values---what the artist deems important in life. So it's not enough for someone to merely create a garden, say. A garden is a garden. Just looking at it doesn't tell you what its maker thinks of it, what it is about it that he deems important. Viewing a painting of a garden does. The same garden painted by a dozen different artists will result in a dozen uniquely different paintings, each one reflecting countless decisions made by the artist regarding what to include and what to leave out, what to change, and how to render each minute detail. More than "personality" is involved, however.
What courts need to reach decisions in cases like this are not mere assertions, or opinions, by alleged artists and their lawyers, or by any "experts" they may call to testify, that something is art, but an objective definition of the term. Let me propose one related to the process I described above in the making of a dozen different paintings of a single garden: Art is the selective re-creation of reality according to the fundamental values of the artist. A garden is realty. By this objective measure, Kelley's garden was not art and therefore was not protected by VARA.
For further information, see Chapter 6 ("The Definition of Art"), and the section "Art and the Law" in Chapter 15, of 'What Art Is: The Esthetic Theory of Ayn Rand' (Open Court, 2000), which I co-authored.
Louis Torres, Co-Editor, Aristos (An Online Review of the Arts) -- httlp://www.aristos.org