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Can a Garden Be Copyrighted?

• dailybell.com

A living garden is not eligible for copyright protection, the U.S. Court of Appeals for the 7th Circuit has ruled. The court's Feb. 15 unanimous ruling in Kelley v. Chicago Park District partially affirmed and reversed a lower court ruling about a wildflower garden that artist Chapman Kelley installed in Chicago's Grant Park. The Visual Artists Rights Act of 1990 (VARA) amended the Copyright Act to give creators of some types of visual art two rights — attribution and integrity. The integrity right enables an artist to stop changes to the work that are "prejudicial to his... honor or reputation" and to seek recovery for unauthorized changes. The opinion authored by Circuit Judge Diane Sykes noted that "VARA supplements general copyright protection; to qualify for moral rights under VARA, a work must first satisfy basic copyright standards." Circuit judges Daniel Manion and John Daniel Tinder joined the opinion. The 7th Circuit agreed with Judge David Coar of the Northern District of Illinois that a living garden is not copyrightable. It affirmed Coar's ruling on Kelley's VARA claim despite misgivings about Coar's conclusions. This includes findings that Kelley's "Wildflower Works" qualifies as a painting or sculpture but it's not original enough for copyright. – Law.Com

Dominant Social Theme: It takes perpetual ownership to build a garden.

 

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