NO.

_____

Supreme Court of the United States ________________

CHAPMAN KELLEY, v. CHICAGO PARK DISTRICT, Respondent.
________________

In the

Petitioner,

On Petition for Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit ________________ PETITION FOR WRIT OF CERTIORARI ________________ MICAH E. MARCUS Counsel of Record KIRKLAND & ELLIS LLP 300 North LaSalle Chicago, IL 60654 (312) 862-2000 MICAH.MARCUS@KIRKLAND.COM
Counsel for Petitioner

July 18, 2011

i QUESTIONS PRESENTED 1. Whether an original work of art that incorporates living elements is unauthored and thus not protected under the Copyright Act. 2. Whether an original work of art that incorporates living elements can be fixed for the purposes of protection under the Copyright Act.

ii TABLE OF CONTENTS PETITION FOR A WRIT OF CERTIORARI ............. 1 INTRODUCTION ........................................................ 1 OPINIONS BELOW .................................................... 3 JURISDICTION .......................................................... 3 STATUTORY PROVISIONS INVOLVED ................. 3 STATEMENT .............................................................. 4 A. Genesis of Wildflower Works ........................ 4 B. The Destruction of Wildflower Works .......... 6 C. The Court Trial ............................................. 7 D. The Court of Appeals Decision ..................... 8 REASONS FOR GRANTING THE PETITION ....... 10 I. The Seventh Circuits Wrong Kind Of Authorship Test Is In Error ............................ 11 A. B. The Seventh Circuits Opinion Conflicts With Feist ................................... 11 The Seventh Circuits Wrong Kind Of Authorship Test Has No Boundaries And Is Inherently Inconsistent ............................................... 15 The Court Provides No Legal Support For Its Wrong Kind of Authorship Test ....................................... 17

C.

II.

The Seventh Circuits Final Fixation Standard Is In Error ......................................... 21

iii A. The Seventh Circuits New Test Contradicts The Plain Language Of The Copyright Act ..................................... 21 The Appellate Courts Final Fixation Test Is At Odds With Every Circuit Examining This Issue ........ 22 Copyright Protection Does Not Require A Final Or Non-Changing Work........................................................... 25

B.

C.

CONCLUSION .......................................................... 29

iv APPENDIX CONTENTS Order denying petition for rehearing, April 19, 2011 ................................................. 1a Final Judgment, February 15, 2011 ............. 3a Opinion of the Seventh Circuit Court, February 15, 2011 .......................................... 4a District Court opinion, September 29, 2008 ...................................... 44a

v TABLE OF AUTHORITIES Page(s) Cases Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d 99 (2d Cir. 1951) ...................................13 Apple Barrel Prod., Inc. v. Beard, 730 F.2d 384 (5th Cir. 1984) ............................ 2, 21 Berkla v. Corel Corp., 66 F. Supp. 2d 1129 (E.D. Cal. 1999) ..................15 Bleistein v. Donaldson Lithograpgyn Co., 188 U.S. 239 (1903) ........................................19, 31 Bruce v. Weekly World News, Inc., 310 F.3d 25 (1st Cir. 2002) ..................................21 Carrel v. Shubert Organization, Inc., 104 F. Supp. 2d 236 (S.D.N.Y. 2000) ...................26 Corwin v. Walt Disney Co., 475 F.3d 1239 (11th Cir. 2007) ........................ 2, 21 eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) ..............................................27 Esquire, Inc. v. Ringer, 591 F.2d 796 (D.C. Cir. 1978) ........................ 19, 31 Feist Publns., Inc. v. Rural Tel. Service Co., Inc., 499 U.S. 340 (1991) ...................................... passim Gamma Audio & Video, Inc. v. Ean-Chea, 11 F.3d 1106 (1st Cir. 1993) ................................13 Gates Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823 (10th Cir. 1993) ..................................14

vi Hannegan v. Esquire, 327 U.S. 146 (1946) ........................................19, 31 Harper & Row, Publishers, Inc. v. National Enterprises, 471 U.S. 539 (1985) ..............................................15 Harper House, Inc. v. Thomas Nelson, Inc., 889 F.2d 197 (9th Cir. 1989) ............................ 2, 21 Kay Berry, Inc. v. Taylor Gifts, Inc., 421 F.3d 199 (3d Cir. 2005) .................................14 Kelley v. Chi. Park Dist., No. 04 C 07715, 2008 WL 4449886 (N.D. Ill., Sept. 29, 2008) ....8, 9 Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996 (2d Cir. 1995) ............................... 2, 20 M. Kramer Mfg. Co., Inc. v. Andrews, 783 F.2d 421 (4th Cir. 1986) ................................26 MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993) .......................... 27, 28 Mass. Museum of Contemporary Art Foundation v. Buchel, 593 F.3d 38 (1st Cir. 2010) ..................................30 Mazer v. Stein, 347 U.S. 201 (1954) ..............................................13 MyWebGrocer, LLC v. Hometown Info, Inc., 375 F.3d 190 (2d Cir. 2004) .................................20 NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231 (7th Cir. 1995) ..................................27 Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128 (1st Cir. 2006) ............................9, 10

vii Psihoyos v. Natl Geographic Socy, 409 F. Supp. 2d 268 (S.D.N.Y. 2005) ...................22 Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992) ........................... 21, 23 SimplexGrinnel LP v. Integrated Sys. & Power, Inc., 642 F. Supp. 2d 206 (S.D.N.Y. 2009) ...................30 Stenograph L.L.C. v. Bossard Assoc., Inc., 144 F.3d 96 (D.C. Cir. 1998) ................................27 Stern Electronics, Inc. v. Kaufman, 669 F.2d 852 (2nd Cir. 1982) ...............................26 Time Inc. v. Bernard Geis Assocs., 293 F. Supp. 130 (S.D.N.Y. 1968) ........................22 Toney v. LOreal USA, Inc., 406 F.3d 905 (7th Cir. 2005) ................................17 Toro Co. v. R & R Prod. Co., 787 F.2d 1208 (8th Cir. 1986) ..............................14 TransWestern Pub. Co. LP v. Multimedia Marketing Assoc., Inc., 133 F.3d 773 (10th Cir. 1998) .......................... 2, 21 Urantia Foundation v. Maaherra, 114 F.3d 955 (9th Cir. 1997) ................................22 Warren Publg, Inc. v. Microdos Data Corp., 115 F.3d 1509 (11th Cir. 1997) ............................14 Williams Elecs., Inc. v. Artie Intl, Inc., 685 F.2d 870 (3d Cir. 1982) ........................... 25, 28 Statutes 17 U.S.C. 101 .............................................. 10, 21, 26 17 U.S.C. 102(a) .............................................. 2, 3, 11

viii 17 U.S.C. 106(a)(3)(A) ..........................................4, 7 28 U.S.C. 1254(1) ......................................................3 Other Authorities H.R. Rep. 101-514, 101st Cong., 2nd Sess., 1990 U.S.C.C.A.N. 6915.......................................16 Treatises 2 Melville B. Nimmer & David Nimmer, Nimmer on Copyright 8.02[B][2] (2011) ...........25 2 Patry on Copyright 3:19 (online ed.) .................................................18

PETITION FOR WRIT OF CERTIORARI Petitioner respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Seventh Circuit. INTRODUCTION In this case, the Seventh Circuit ruled that a work of art that incorporated living material could be both: (i) an original work as defined under this Courts ruling in Feist Publns., Inc. v. Rural Tel. Service Co., Inc., 499 U.S. 340, 345 (1991), and (ii) in a tangible form and capable of perception for more than a transitory duration, yet, nonetheless, not entitled to copyright protection. This ruling was based upon two central holdings: (i) an author relying on living material in their art is the wrong kind of author for copyright protection, because living material (in this case flowers) owes its appearance to nature, not the author; and (ii) art incorporating living material is in a perpetual state of change, thus precluding fixation for purposes of copyright, despite the works otherwise tangible and perceivable form. The courts opinion plainly contradicts this Courts ruling in Feist, governing precedent of other Circuits and the plain language of the Copyright Act, thereby threatening the uniform enforcement of copyright throughout the United States. Accordingly, it must be rejected. Indeed, the courts first holdingan author becomes the wrong kind of author because their work results from the unique and original combination of materials that originate in nature (rather than from the artists own creation)has no support in the law and contradicts not only Feist, but cases from almost every circuit analyzing whether an

2 authors coordination and presentation of otherwise uncopyrightable elements is entitled to copyright protection as an overall work. See, e.g., Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1004 (2d Cir. 1995) (What is protectable then is the original way in which the author has selected, coordinated, and arranged the elements of his or her work.); Harper House, Inc. v. Thomas Nelson, Inc., 889 F.2d 197, 203 (9th Cir. 1989) ([A] copyrightable compilation could consist entirely of matter which is not itself copyrightable.); TransWestern Pub. Co. LP v. Multimedia Marketing Assoc., Inc., 133 F.3d 773, 776 (10th Cir. 1998) ([A] compilation gains copyright protection with only minimal creativity in selection and arrangement .); Corwin v. Walt Disney Co., 475 F.3d 1239, 1251 (11th Cir. 2007) ([A] work may be protected by copyright law when its otherwise unprotectable elements are arranged in a unique way.); Apple Barrel Prod., Inc. v. Beard, 730 F.2d 384, 388 (5th Cir. 1984) (The mere fact that component parts of a collective work are neither original to the plaintiff nor copyrightable by the plaintiff does not preclude a determination that the combination of such component parts as a separate entity is both original and copyrightable.). Likewise, the courts second holdinga work of art that is tangible and capable of perception and reproduction is rendered unfixed if it incorporates live materialsimply ignores the black-letter law of the Copyright Act itself. The Copyright Act provides in relevant part that [c]opyright protection subsists in original works of authorship fixed in any tangible medium of expression from which they can be perceived, reproduced, or otherwise communicated 17 U.S.C. 102(a). Under this

3 definition, if a work is in any tangible form that is capable of perception, reproduction or is otherwise communicable, it is fixed under the Copyright Actnothing less, nothing more. There is nothing in the Copyright Act that supports the proposition that the inclusion of living material in a work that otherwise meets this definition is not entitled to protection. The Seventh Circuits ruling to the contrary must be reversed. OPINIONS BELOW The opinion of the court of appeals (Pet. App. 4a-43a) is reported at 635 F.3d 290. The opinion of the district court (Pet. App. 44a-64a) is unreported. JURISDICTION The judgment of the court of appeals was entered on February 15, 2011. (Pet. App. 3a). A timely petition for rehearing (Pet. App. 1a-2a) was denied on April 19, 2011. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED The Copyright Act provides in relevant part: Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. 17 U.S.C. 102(a). The Visual Artists Rights Act of 1990 (VARA) provides in relevant part that the author of a work of visual art (3) shall have the right to (A) prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial

4 to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right. 17 U.S.C. 106(a)(3)(A). STATEMENT This case raises two important questions about the minimum requirements of authorship and fixation for all copyrighted works. A. Genesis of Wildflower Works Petitioner Chapman Kelley is an internationally renowned artist, whose work has been featured in thousands of public and private collections. Pet. App. 45a, C.A. App. 111. Mr. Kelley has been the recipient of numerous awards and honors for his art. C.A. App. 12. A defining characteristic of Mr. Kelleys artwork is the use of bold ellipse-shaped outlines featuring portraits of landscapes and wildflowers. Pet. App. 7a, C.A. App. 1214. In the late 1970s, Mr. Kelley began experimenting with large, outdoor pieces of art incorporating live flowers and plants, transforming his paintings into threedimensional creations. Pet. App. 7a. . In 1976, Mr. Kelley created his first outdoor wildflower installation at the Dallas-Fort Worth International Airport. Id. Mr. Kelley sought to create striking works that would incorporate both living and nonliving materials in an aesthetically pleasing and environmentally-conscious form. Id. In 1983, Mr. Kelley was invited to Chicago to create a wildflower exhibit. Pet. App. 7a. He scouted Chicago for a location and eventually chose Daley Bicentennial Plaza as the site to install a piece he called Wildflower Worksthe culmination of his artistic vision. Id.. Mr. Kelley chose to finance the

5 project himself, at a cost of approximately one million dollars. C.A. App. 216217. In June of 1984, Mr. Kelley began the installation of Wildflower Works. The installation consisted of two elliptical steel and gravel perimeters, containing organized beds of wildflowers, covering approximately 1.5 acres. Pet. App. 5a As noted previously, ellipses are a hallmark of Mr. Kelleys art, and appear in many of his paintings. Pet. App. 7a, C.A. App. 1214. As Mr. Kelley testified at trial, many of his paintings contain figurative elementsdepictions of wildflowersand non-figurative elementsthe space outside of his elliptical boundaries. Pet. App. 53a, C.A. App 138 39. Wildflower Works incorporated the same themes, writ large. Id. Mr. Kelley also decided to use native wildflowers to create a beautiful and environmentally conscious piece of art. Pet. App. 8a. Mr. Kelley chose and used approximately sixty species of native wildflowers to provide the color palette for Wildflower Works. Id. These native wildflowers (all perennials) provided long-term sustainability to the installation, because they did not require water, fertilizer or insecticides and would continue to bloom, year after year. Mr. Kelley personally paid for several hundred thousand wildflower plugs. Pet. App. 9a. He designed each ellipse to feature concentric bands of different wildflowers that would increase in color intensity towards the center. Pet. App. 8a-9a Mr. Kelly chose the species and colors so that the blossoming flowers would create a dynamic threedimensional painting. C.A. App. 136. The flower colors used in the northern ellipse were chosen to evoke a sense of coolness, while the southern ellipse

6 used a warmer palette. C.A. App. 22. The installation was laid out to blossom sequentially, so that it would change in synchrony with the seasons. Pet. App. 8a-9a. Wildflower Works was designed by Mr. Kelley to be [as] carefully controlled in design, time and color transition as a pointilist painting. C.A. App. 22. Wildflower Works was very well received. Even before the completion of the project, the Chicago Park District issued a press release stating that [o]nce the ovals mature, the results will be two breathtaking natural canvases of Kelley-designed color patterns. Pet. App. 8a. In a November 1985 letter, the Mayor of Chicago expressed his gratitude to Mr. Kelley for providing the city with a magnificent piece of art. Pet. App. 9a, C.A. App. 28. The Illinois Senate passed a resolution praising Wildflower Works and stating that Mr. Kelley had transformed Chicagos Grant Park into a showcase for a new form of living art. Pet. App. 9a, C.A. App. 1718. The New York Times praised Wildflower Works and Mr. Kelley in its article Wildflowers as Art for a Chicago Park. Pet. App. 47a. Wildflower Works was also well received by the public and received millions of visitors over its twenty years of existence. B. The Destruction of Wildflower Works In June 2004, Mr. Kelley was informed by the Chicago Park District that it planned to reduce the size and alter the shape of Wildflower Works. Pet. App. 50a. He told them that it was his installation and that he did not approve of the drastic alterations they proposed. Id.. Despite Mr. Kelleys objections, the Chicago Park District began to alter Wildflower

7 Works shortly thereafter. The ellipses were removed and the installation was reshaped into smaller rectangles, losing more than half of its area in the process. Pet. App. 13a. The steel and gravel edging was removed and replaced with a hedge. Id. Mr. Kelley was never given an opportunity to remove and relocate his exhibit prior to its mutilation. C.A. App. 174, 360. Wildflower Works, as conceived by Chapman Kelley, ceased to exist as the result of the Chicago Park Districts actions. C. The Court Trial On November 30, 2004, Mr. Kelly sued the Chicago Park District for, among other things, violation of the Visual Artists Rights Act (VARA), 17 U.S.C. 106A. The parties entered a number of factual stipulations as part of the pretrial order, and the matter was tried to the court on September 24, 2007. See Kelley v. Chi. Park Dist., No. 04 C 07715, 2008 WL 4449886 (N.D. Ill., Sept. 29, 2008) at *1 (Pet. App. 44a). The court issued findings of fact and conclusions of law on September 29, 2008. Id. at *1 (Pet. App. 44a). The trial court held that Wildflower Works was not protected by VARA. Id. at *7 (Pet. App. 59a). The court held that even though Wildflower Works was a work of visual art as defined under VARA, it was, nonetheless, not protected under VARA because it was not sufficiently original, and thus was not copyrightable (a necessary element for protection under VARA). Id. at *12 (Pet. App. 57a). The trial court explained its reasoning: It is not clear what about the exhibit is original. Is it the elliptical design? The size? The use of native instead of non-native

8 plants? The environmentally-sustainable gardening method to which vegetative management system apparently refers? 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 in the manner in which he created his exhibit. He has submitted no evidence or argument on the copyrightability of Wildflower Works, except for the conclusory, tautological statement that Wildflower Works is copyrightable under the Copyright Act because the arrangement, coordination or selection displayed by Plaintiff is copyrightable. Without any evidence differentiating Kelleys work from, for example, the oval wildflower beds of Monticello this Court can only find that Wildflower Works is not subject to copyright protection. Therefore, it is not protected under VARA. Id. at *6 (Pet. App. 56a-57a) (footnote and citation omitted). The court also held that, even if Wildflower Works was copyrightable, it would still not be protected by VARA because it was sitespecific art, and thus exempted from VARA. Id. at *6 (Pet. App. 57a) (applying Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128 (1st Cir. 2006)). The trial court entered judgment for the Chicago Park District on the VARA claims. D. The Court of Appeals Decision The case was argued to the court of appeals on September 10, 2009, and decided in a published

9 opinion on February 15, 2011. Kelley v. Chicago Park Dist., 635 F.3d 290 (7th Cir. 2011) (Pet. App. 4a-43a). The court of appeals affirmed the trial courts VARA holding on grounds different from those explained by the trial court. Id. at 306 (Pet. App. 57a). The court of appeals disagreed with the trial courts conclusion about originality, noting that the district court mistakenly equate[d] originality with novelty; the law is clear that a work can be original even if it is not novel. Id. at 302 (Pet. App. 31a). After concluding that Wildflower Works possessed the necessary creative spark to constitute an original work, the court of appeals went on to explain that [t]he real impediment to copyright here is not that Wildflower Works fails the test for originality (understood as not copied and possessing some creativity) but that a living garden lacks the kind of authorship and stable fixation normally required to support copyright. Id. at 303 (Pet. App. 32a). So, the court concluded that Wildflower Works was original, but not fixed or authored. Id. at 304 (A living garden like Wildflower Works is neither authored nor fixed in the senses required for copyright.) (Pet. App. 35a). The court of appeals also disagreed with the district courts adoption of the First Circuits conclusion in Phillips that VARA does not apply to site-specific art. However, after finding various reasons to question [the First Circuits] interpretation of VARA, id. at 306 (Pet. App. 41a), the court of appeals noted that its observations were not dispositive because it was resolving the VARA claim on other grounds.

10 REASONS FOR GRANTING THE PETITION The decision below creates new requirements for fixation and authorship that conflict in principal with the holdings of this Court and every circuit court that has addressed this topic. The sine qua non of copyright is originality. Feist Publns., Inc. 499 U.S. at 345. A copyrighted work must be original to the author, the person who contributed the original ideas or creativity. Id. A work must also be sufficiently fixed in a tangible medium such that it can be perceived by a viewer. See 17 U.S.C. 101. As the court of appeals recognized, this Court has repeatedly construed [originality, authorship and fixation] in relation to one another or perhaps has collapsed them into a single concept; therefore writings are what authors create, but for one to be an author, the writing has to be original. 635 F.3d at 303 (citations omitted) (Pet. App. 33a). In short, authorship and fixation are subsumed into the test for originality. Nonetheless, although the parties did not dispute that Wildflower Works was both a sculpture and a paintingand despite the court of appeals holding that Wildflower Works was original under the Copyright Actthe court held that Mr. Kelleys work was not the kind of authorship required for copyright. Id. at 304 (Pet. App. 35a). Moreover, the court reasoned that Wildflower Works was not sufficiently fixed to meet the Copyright Acts fixation requirement, even though it had been seen and photographed by millions. The appellate courts ruling creates a conflict in law for at least two reasons.

11 First, it creates a novel and unbounded restriction on authoring new works that incorporate living materials. Under this subjective test, some art is deemed to be the wrong kind of authorship for protection under the Copyright Act. This standard is contrary to this Courts ruling in Feist, contrary to the law of every circuit addressing the nature of originality under the copyright act and would dramatically alter the scope of copyright protection as it exists today. Second, it creates an unprecedented and unprincipled fixation requirement that contradicts the plain language of the Copyright Act. The court below admitted that Wildflower Works was sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory durationthe Court itself included a picture of Wildflower Works in its memorandum. Wildflower Works was thus fixed for purposes of copyright protection. Nonetheless, the court held against Mr. Kelley because Wildflower Works, though fixed as defined by 17 U.S.C. 102(a), was constantly changing along with the life cycles of the flowers included in the work. 635 F3d. at 303-306 (Pet. App. 32a-38a). The courts articulated final fixation test has no basis in law, is contrary to all existing authorities on this point and should not be allowed to stand. I. The Seventh Circuits Wrong Kind Of Authorship Test Is In Error A. The Seventh Circuits Opinion Conflicts With Feist. Wildflower Works was authored by Chapman Kelley. Indeed, as the appellate court held,

12 Wildflower Works was Mr. Kelleys original work of art. 635 F.3d at 302 (Pet. App. 30a). Though the individual flowers incorporated into the work would not be copyrightable themselves, the court held that Mr. Kelley applied the necessary creative spark in his detailed artistic expression to establish the originality of Wildflower Works, as that term was defined by this Court in Feist Publns., Inc., 499 U.S. at 345. 635 F.3d at 302 (Pet. App. 31a). To be original means that the work was independently created by the author ... and that it possesses at least some minimal degree of creativity. Id. (emphasis added).1 Simply by finding that Wildflower Works
1 See also Mazer v. Stein, 347 U.S. 201, 214 (1954) (defining original pieces of art as those that are tangible expressions of an artists ideas); Gamma Audio & Video, Inc. v. Ean-Chea, 11 F.3d 1106, 1112 (1st Cir. 1993) (describing original elements as those that were contributed by the author); Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d 99, 102 (2d Cir. 1951) (Original in reference to a copyrighted work means that the particular work owes its origin to the author.) (emphasis added); Kay Berry, Inc. v. Taylor Gifts, Inc., 421 F.3d 199, 207 (3d Cir. 2005) (finding that a piece of art is original and therefore copyrightable when the artist adds his or her own imaginative spark.); Toro Co. v. R & R Prod. Co., 787 F.2d 1208, 1212 (8th Cir. 1986) (Originality denotes only enough definite expression so that one may distinguish authorship.) (emphasis added); Gates Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823, 836 (10th Cir. 1993) (Originality in the field of copyright requires that the work be independently created by the author and that it poses a minimal degree of creativity.) (emphasis added); Warren Publg, Inc. v. Microdos Data Corp., 115 F.3d 1509, 1523 (11th Cir. 1997) (What does originality mean? The selection must be made independently by the compiler, not copied, and must owe its origin to the author.) (emphasis added).

13 was an original work by Mr. Kelley, the court implicitly admitted that Mr. Kelley had, in fact, authored the piece for purposes of copyright protection. See 635 F.3d at 302 (Pet. App. 30a-31a) (holding originality requires only that the work was independently created by the author ). In sum, Wildflower Works was plainly original under the Copyright Act, and that should be the end of the analysis of whether it was a work protected by the law.2 But the appellate court did not stop there. Apparently troubled by the medium of expression used by Mr. Kelley, the court held that Mr. Kelleys creation and authorship of Wildflower Works is not the kind of authorship required for copyright because the work incorporated living elements.3 635
Indeed, the originality test established in Feist strikes a balance between copyright laws competing interests in promoting the useful arts and sciences while protecting concepts and ideas within the public domain. Feist Publns, Inc., 499 U.S. at 350 (To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.) (citing Harper & Row, Publishers, Inc. v. National Enterprises, 471 U.S. 539, 556-57 (1985)). By unjustifiably requiring more than the standard established by this Court, the Seventh Circuit not only undermines the stability of a wellestablished copyright standard, it also undermines the purposes of the Copyright Clause and the Copyright Act.
3 To the extent the Seventh Circuits opinion suggests that Wildflower Works is not authored by a human because the flowers are subject to an infinite variety of permutations, it is also erroneous. 635 F.3d at 304 (Pet. App. 35a; see Berkla v. Corel Corp., 66 F. Supp. 2d 1129, 1141 (E.D. Cal. 1999). ([P]lant components themselves are relatively unchangeable, 2

14 F.3d at 304 (Pet. App. 35a) (emphasis added). In other words, the court decided that there was a right kind of authorship and a wrong kind of authorship under the Copyright Act. While the court asserts that it is not holding that artists who incorporate natural or living elements in their work can never claim copyright, id. at 305 (Pet. App. 36a), it never explains what kind of authorship involving living elements would meet its new standard for authorship. And despite holding that Wildflower Works plainly possesses more than a little creative spark, id. at 303 (Pet. App. 31a), the court nonetheless held that Mr. Kelleys numerous creative decisions in the creation of Wildflower Works did not make him the right kind of author for purposes of copyright protection. This new standard not only conflicts with this Courts ruling, but creates a boundless and inconsistent new limitation on future copyright claims.

e.g., aside from the rare exception, clovers have three petals, and will not have shapes that significantly vary. Their color, although potentially multi-hued, is relatively constant within the specific species. Unlike higher forms of life, the plants and flowers, as seen in nature, do not have a multitude of common expressions.) In other words, the flowers selected by Mr. Kelley, once planted, would follow a predictable and constant trajectory of growth, flowering and dormancy. Indeed, it was this very regularity upon which Mr. Kelley relied when he chose and placed flowers in different locations to create specific color and blooming patterns in Wildflower Works.

15 B. The Seventh Circuits Wrong Kind Of Authorship Test Has No Boundaries And Is Inherently Inconsistent. Indeed, the courts wrong kind of authorship rule has no boundaries, and is inherently inconsistent. An example of the inconsistency in the authorship holding is contained within the Opinion itself. The court concedes that a designers plan for a garden ... in writing is subject to copyright protection. 635 F.3d at 305 (Pet. App. 36a). Thus, a blueprint for Wildflower Worksembodying all of Mr. Kelleys original decisions about shape, design, flower selection and placement on paperis the kind of authorship that the court recognizes.4 The only difference between the blueprint and the work of art in Grant Park, however, is the building of the ellipses and planting of the flowers. The courts reliance on Toney v. LOreal USA, Inc., 406 F.3d 905, 910 (7th Cir. 2005), suggests a source of the courts error. Toney stands for the proposition that a models likeness or person (e.g., her face) is not authored or fixed. Toney would apply here only if Mr. Kelley claimed that the flowers themselves were the subject of his copyright. But he does not; he makes no claim to have authored or to have a copyright in any of the specific flowers in Wildflower Works. Rather, his claim is that the work as a whole is subject to protection as
4 Related to this holding, a detailed blueprint of Wildflower Works does exist and was used in connection with Mr. Kelleys first discussions with the City prior to Wildflower Works installation in 1984.

16 embodying a series of creative and artistic decisions in a unique painting or sculptural work. The choice of medium, whether it be paper or a patch of earth surrounded by gravel and steel and planted with seeds does nothing to reduce Mr. Kelleys authorship of the work.5 The uncertain nature of the courts wrong kind of authorship rule is also evident in its discussion of artist Jeff Koons work of art, Puppy. 635 F.3d at 305-306 (Pet. App.37a-38a). Puppy consists of a huge metal frame in the shape of a puppy ... covered ... with thousands of blooming flowers sustained by an irrigation system within the frame. Id. at 305 (Pet. App. 37a) The court claims that though Puppy might be entitled to copyright protection, Wildflower Works is quite different. It is quintessentially a garden; Puppy is not. Id. at 306 (Pet. App.38a). The court does not explain how one of these works involves authorship while the other does not because it cannot. Jeff Koons did not create the blooming flowers that predominate his work any more than Mr. Kelley created the flowers in his work. Puppy and Wildflower Works, works of art incorporating flowers within large metal frames supported by irrigation systems, are not subject to
5 Indeed, the medium used in expressing any form of artistic expression is not a reasonable basis to deny VARA protection, let alone the more expansive protection afforded under copyright law. See H.R. Rep. 101-514, H.R. Rep. No. 514, 101st Cong., 2nd Sess., 1990 U.S.C.C.A.N. 6915 (Leg. Hist.) (stating [a]rtists may work in a variety of media, and use any number of materials in creating their works. Therefore, whether a particular work falls within the definition should not depend on the medium or materials used.)

17 legitimate distinction regarding authorship outside of the courts own subjective view of art.6 To that end, it is well-settled that the judiciarys subjective view of what constitutes art cannot provide a rationale basis to determine what forms of artistic expression are entitled to protection under federal law. Bleistein v. Donaldson Lithograpgyn Co., 188 U.S. 239, 251 (1903) (It would be a dangerous undertaking for persons trained only to the law to constitute themselves as the final judges of the worth of pictorial illustrations .); see also Hannegan v. Esquire, 327 U.S. 146, 158 (1946) (finding that a requirement that literature or art conform to some norm prescribed by an official smacks of an ideology foreign to our system.); Esquire, Inc. v. Ringer, 591 F.2d 796, 805 (D.C. Cir. 1978) ([Judges] have no particular competence to assess the merits of one genre of art relative to another. And to allow them to assume such authority would be to risk stultifying the creativity and originality the copyright laws were expressly designed to encourage.). C. The Court Provides No Legal Support For Its Wrong Kind of Authorship Test. The court also failed to provide any basis for a wrong kind of authorship rule based on whether and to what degree natural components predominate in a work. On this point, the courts reliance on leading copyright treatise, Patry on Copyright, is
6 A holding that some gardens are sufficiently original to be copyrighted would not, as the court seemed to fear, open a Pandoras Boxsince, as the court already concedes, blueprints and plans for gardens and landscape designs are already subject to copyright. 635 F.3d at 305 (Pet. App. 36a).

18 unavailing. The sections of Patry relied upon by the court stand for the unexceptional position that [m]aterials produced solely by nature, by plants, or by animals are not copyrightable. 2 Patry on Copyright 3:19 n.l (online ed.) (emphasis added). Patry does not say that authorship requires every single element of a work to have been created by the author (and not by nature), because that is not the law. See, e.g., Feist, 499 U.S. at 348 (noting that a copyright on a work does not mean that every element of that work is protected by the copyright). For example, Scenes a faire are unprotectible elements that follow naturally from a works theme rather than from an authors creativity. MyWebGrocer, LLC v. Hometown Info, Inc., 375 F.3d 190, 194 (2d Cir. 2004).7 However, even works that include scenes a faire, like the familiar figure of the Irish cop, are subject to copyright protection to the extent that they embody original choices by the author. Id. In other words, an authors selection, coordination and arrangement of uncopyrightable elements (such as elements owing their appearance to nature or others) is unequivocally the right type of authorship for copyright protection with respect to the authors original expression of the overall work. See e.g. Knitwaves, Inc., 71 F.3d at 1004 (What is protectible then is the original way in which the author has selected, coordinated, and arranged the elements of his or her work.); Harper House, Inc., 889 F.2d at 203; ([A] copyrightable combination could consist entirely of matter which is
7 Scenes a faire are expressions that are standard, stock or common to a particular topic.

19 not itself copyrightable.); TransWestern Pub. Co. LP, 133 F.3d at 776 ([A] compilation gains copyright protection with only the minimal creativity in selection and arrangement .); Corwin, 475 F.3d at 1251 ([A] work may be protected by copyright law when its otherwise unprotectable elements are arranged in a unique way.); Apple Barrel Prod., Inc., 730 F.2d at 388 (The mere fact that component parts of a collective work are neither original to the plaintiff nor copyrightable by the plaintiff does not preclude a determination that the combination of such component parts as a separate entity is both original and copyrightable.). To that end, the unexceptional fact that a work of authorship can incorporate and be predominated by natural elements is evident in the realm of photography. Photographs of humans, animals and plants are indisputably subject to copyright protection. E.g., Bruce v. Weekly World News, Inc., 310 F.3d 25 (1st Cir. 2002) (photograph of William Clinton); Rogers v. Koons, 960 F.2d 301, 307 (2d Cir. 1992) (photograph of puppies); Time Inc. v. Bernard Geis Assocs., 293 F. Supp. 130, 142-43 (S.D.N.Y. 1968) (Zapruder film). Without doubt, the photographers authorship does not depend on whether the underlying subject of his work is living or even whether or not he had any role in creating or forming that underlying subject (which itself is not subject to copyright protection).8 See Psihoyos v.
8 Indeed, a copyright can be authored under the Copyright Act even when the authors believe, and the court assumes, that the source of the content contained in a book is non-human. See Urantia Foundation v. Maaherra, 114 F.3d 955 (9th Cir. 1997). The Urantia court addressed a book that both parties agreed

20 Natl Geographic Socy, 409 F. Supp. 2d 268, 275 (S.D.N.Y. 2005) (To the extent a photograph captures the characteristics of an object as it occurs in nature, these characteristics are not protectible.). What makes a photographer the author of a photograph of a living subject includes the photographers selection of the pose of the subject, his choice of lighting and angle, his choice of which of the subjects expressions to capture, his choice of the lens and the camera and almost any other variant involved. See, e.g., Rogers, 960 F.2d at 307 (2d Cir. 1992). There is no real difference between the originality expressed by the author of a photograph of a flower and Mr. Kelleys use of flowers in his art. In fact, the Copyright Office recognizes that authorship, and hence copyright protection, does not depend on the characteristics of the subject or the medium. A search of the Copyright Offices online records reveals that well-known food retailer Edible Arrangements has been afforded copyright protection for its floral and fruit sculptures such as Berry bouquet, Reg. No. VA0001021475; Blooming daisies, Reg. No. VA0001021473; Delicious celebration, Reg. No. VA0001021474; Delicious
was authored by non-human spiritual beings. 114 F.3d at 957 (quotation omitted). The court explained that because [the human authors] were responsible for the revelations appearing in such a way as to render the work as a whole original, a copyright existed. Id. at 958 (quotations omitted). Thus, the court acknowledged that even if some portions of a copyrighted work are created by non-human spiritual beings (and thus not authored themselves), the original portions of the work created by humans are still authored and thus protected by copyright.

21 fruit design, Reg. No. VA0001021472; and Hearts and berries, Reg. No. VA0001021476. Similarly, American Sand Art Corporation has been granted numerous copyright registrations for its sand sculptures, such as Large flamingo, Reg. No. VA0000603490; Macaw parrot, Reg. No. VA0000603407; and Extra large castle, Reg. No. VA0000603493. Certainly, if copyright registrations are granted for sculptures made of plucked fruit, flowers or sand, all of which were created solely by nature or plants, then authorship does not turn on human creation of the medium. In sum, the Seventh Circuits Opinion creates an unprecedented, murky and unbounded wrong kind of authorship rule that is contrary to the copyright law as explained by this Court and every Circuit analyzing this issue. This new test not only improperly deprives Mr. Kelley of protection under VARA, but threatens to undermine the viability of any copyrighted work that incorporates otherwise unprotected elements (like flowers) that are not of the authors personal creation. For this reason alone, the case is worthy of a grant of a writ of certiorari. II. The Seventh Circuits Standard Is In Error. Final Fixation

A. The Seventh Circuits New Test Contradicts The Plain Language Of The Copyright Act. The Seventh Circuits new final fixation test flatly contradicts the express language of the Copyright Act. A work is fixed in a tangible medium of expression when its embodiment is sufficiently permanent or stable to permit it to be

22 perceived, reproduced, or otherwise communicated for a period of more than transitory duration. 635 F.3d at 304 (Pet. App. 33a) (citing 17 U.S.C. 101). That Wildflower Works meets this standard is clear. Indeed, the court itself acknowledged that Wildflower Works was tangible and [could] be perceived for more than a transitory duration. 635 F.3d at 305 (Pet. App. 36a). The question of whether Wildflower Works met the constitutional element of fixation should have ended there. It did not. Instead, the court reasoned that because the flowers used in Wildflower Works were in a state of perpetual change, Wildflower Works itself could not qualify as fixed for purposes of copyright protection. 635 F.3d 305 (Pet. App. 37a). In other words, as it did with authorship, the court ignored the Copyright Act and devised a new test under copyright law. According to this test, works made, in whole or in part, from organic or otherwise changing materials can never be deemed fixed and therefore can never qualify for protection under the Copyright Act. B. The Appellate Courts Final Fixation Test Is At Odds With Every Circuit Examining This Issue. The courts ruling that a work that is both tangible and capable of be[ing] perceived for more than a transitory duration may nonetheless fail to meet the Copyright Acts fixation requirement is at odds with every Circuit that has examined this issue. In Williams Elecs., Inc. v. Artie Intl, Inc., for example, the Third Circuit held that a work can be fixed even if outside influences constantly cause it to change, 685 F.2d 870, 874 (3d Cir. 1982). In that

23 case, the defendant challenged the copyrightability of a video games play mode, on the grounds that its continually changing nature due to the actions of its players rendered it not fixed under the Copyright Act. Williams, 685 F.2d at 874. The court rejected that argument, reasoning that even though: there is player interaction with the machine during the play mode which causes the audiovisual presentation to change in some respects from one game to the next in response to the players varying participation, there is always a repetitive sequence of a substantial portion of the sights and sounds of the game, and many aspects of the display remain constant from game to game. Id. Similarly, in Stern Electronics, Inc. v. Kaufman, the Second Circuit held that the video game Scramble is copyrightable even though player participation continuously changes the expression of the work.9 669 F.2d 852, 856 (2nd Cir. 1982). Additionally, in M. Kramer Mfg. Co., Inc. v. Andrews, the Fourth Circuit held that a video game company could copyright the audiovisual portions of a video poker game which depends on player interaction. 783 F.2d 421, 441-42 (4th Cir. 1986).

9Similarly, make-up designs for the Broadway show Cats registered with the Copyright Office are fixed in tangible form on the faces of the Cats actors even though, by their nature, they change each second and are erased at night, only to be recreated the next day in a manner that cannot be exactly the same. Carrel v. Shubert Organization, Inc., 104 F. Supp. 2d 236, 244, 247 (S.D.N.Y. 2000).

24 Other circuits have also held the fixation requirement met even where the expression is inherently ephemeral. For example, both the Ninth Circuit and the Fourth Circuit have held that software stored only temporarily in RAM before giving way to free space is considered sufficiently fixed to be copyrightable. Indeed, in MAI Sys. Corp. v. Peak Computer, Inc., the Ninth Circuit held that software stored in RAM was fixed despite the fact that [i]t is a property of RAM that when the computer is turned off, the copy of the program recorded in RAM is lost. 991 F.2d 511, 518 (9th Cir. 1993), revd on other grounds, eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006). The Ninth Circuit came to this conclusion because after loading the software into RAM, a technician could review error logs and perform diagnostics based on that copy. Id. at 518. Similarly, in Stenograph L.L.C. v. Bossard Assoc., Inc., the D.C. Circuit held that stenography software could be fixed in RAM even though it was not a permanent storage medium, such as a floppy disk or a computers hard drive. 144 F.3d 96, 101. Neither court held that the inherently temporary nature of a RAM copy was relevant to its copyright analysis. See MAI Sys., 991 F.2d at 519; see also NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 235 (7th Cir. 1995) (citing MAI Sys. Corp. with approval). Here, Wildflower Works lasted in its original form for 20 years. Unlike a copy in RAM, it did not, and was not designed to, change within seconds or even minutes. Rather, as designed, the perceivable changes in Wildflower Works happened over the course of months as spring gave way to summer and fall, and fall segued into winter, and so forth. And,

25 although the flowers in Wildflower Works changed due to external influences, there [was] always a repetitive sequence of a substantial portion of the sights of Wildflower Works. Indeed, the seasonal changes themselves created such a repetitive sequence, i.e., flowers bloomed in the spring and faded in the fall only to restart the identical circle of events the following year. As the court noted, Wildflower Works includes the physical presence of the flowers, the soil formations, the flower pattern and the carefully constructed gravel and steel ellipses bordering Wildflower Works numerous rings. See 635 F.3d at 304 (Pet. App. 35a). In other words, many aspects of [Wildflower Works] remain[ed] constant from [season] to [season]. See Williams, 685 F.2d at 874; see also 635 F.3d at 304 (Pet. App._36a. Under the reasoning of Williams and analogous decisions, these constants render Wildflower Works sufficiently fixed. C. Copyright Protection Does Not Require A Final Or Non-Changing Work. Moreover, as in MAI, the fact that Wildflower Works was created with the understanding that it would change, along with the life cycles of the flower, is irrelevant. That certain perceivable aspects of it would ultimately disappear as flowers died did not prevent Wildflower Works from being perceived or from being fixed at any given moment of perception.10 Ironically, the courts inclusion of a
10 On this point, Nimmer on Copyright opines that a large snowman in Maine that existed for two months was sufficiently fixed to be copyrightable. 2 Melville B. Nimmer & David Nimmer, Nimmer on Copyright 8.02[B][2] n.22 (2011). If a

26 photograph of Wildflower Works, 635 F.3d at 293 (Pet. App. 10a), perhaps most effectively demonstrates that it was capable of be[ing] perceived, reproduced, or otherwise communicated for a period of more than a transitory duration. 17 U.S.C. 101. Wildflower Works was, in short, fixed for purposes of the Copyright Act. Accordingly, the courts expressed concern that the works live materials rendered any exact expression inherently temporary, thus complicating the question of when the work was sufficiently permanent and final such that it could be infringed, misconstrues settled law. 635 F.3d at 305 (Pet. App. 36a) . Whether a work can be infringed does not depend on whether it is final. See 17 U.S.C. 101 (where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time.); see also Mass. Museum of Contemporary Art Foundation v. Buchel, 593 F.3d 38, 50-52 (1st Cir. 2010) (holding that even an unfinished work of contemporary art was fixed and protected under VARA and collecting cases on copyright protection for unfinished works). Indeed, an unfinished manuscripteven one that exists only temporarily in electronic form while the author revises itcan be infringed. See SimplexGrinnel LP v. Integrated Sys. & Power, Inc.,
snowman which: (i) only existed for two months; and (ii) was necessarily in a state of constant change from its exposure to the elements (e.g. melting, refreezing, erosion from the wind), then Wildflower Works, which existed in various cycles of substantially the same form for almost twenty years, clearly makes the grade.

27 642 F. Supp. 2d 206, 208-09 (S.D.N.Y. 2009) (holding that various revisions and versions of the same software program are copyrightable works). Simply, a works inherently evolving or changing nature has no bearing on the issue of fixation. Accordingly, that Wildflower Works was seen by millions in differing versions of the work as months and years went by is wholly immaterial to the question of whether the work was in fact fixed at that given moment in time. To this end, in realizing the strain of its own holding, the court caveats that [w]e are not suggesting that ... artists who incorporate natural or living elements in their work can never claim copyright. 635 F.3d at 305 (Pet. App. 36a). If the courts logic stands, why not? A flower in any other display would grow, die and be subject to the forces of nature. No author would have a greater degree of control over living material. Because Wildflower Works used flowers in an abstract expression does not mean it is entitled to less protection than the work of an author who uses flowers or other living matter to represent less abstract subjects like Puppy. Again, the courts own subjective view on what constitutes art does not provide an appropriate basis to decide what original works are entitled to their federally protected rights. Yet, this is exactly what the courts new final fixation test providesa carte blanche license to discriminate against certain types of art incorporating living material or otherwise evolving subject matter that the reviewing court deems not real art. As set forth above, this contradicts well-settled law, and indeed conflicts with the very purpose of the Copyright Act. Bleistein, 188 U.S. at 251 (It would be a dangerous

28 undertaking for persons trained only to the law to constitute themselves as the final judges of the worth of pictorial illustrations .); see also Hannegan, 327 U.S. at 158 (finding that a requirement that literature or art conform to some norm prescribed by an official smacks of an ideology foreign to our system.); Esquire, Inc., 591 F.2d at 805 ([Judges] have no particular competence to assess the merits of one genre of art relative to another. And to allow them to assume such authority would be to risk stultifying the creativity and originality the copyright laws were expressly designed to encourage.). Accordingly, the courts new final fixation test must be rejected, providing yet a second basis to grant a writ of certiorari in the present case.

29 CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted, MICAH E. MARCUS COUNSEL OF RECORD KIRKLAND & ELLIS LLP 300 North LaSalle Chicago, IL 60654 (312) 862-2000
Counsel for Petitioner

July 18, 2011