7th Circuit refuses to rehear case on artists' rights

As reported by the IPKat here, in February 2011, the US court for the 7th Circuit rejected an artist's claim for moral rights in two wildflower gardens.


The artist, Chapman Kelley, who is renowed for his flower and landscape creations, had objected to the modification of two gardens (the “Wildflower Works”) that he had installed in Chicago’s Grant Park in 1984. Kelley had sought relief under the Visual Artists Rights Act (VARA) for infringement of his right of integrity – a right against modification that is prejudicial to the artist's honour or reputation. However, the 7th Circuit held that the gardens were not protected by copyright as they lacked the requisite authorship and fixation required to support copyright. What the Court said was:

"The 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...A living garden like Wildflower Works is neither “authored” nor “fixed” in the senses required for copyright...

Simply put, gardens are planted and cultivated, not authored. A garden’s constituent elements are alive and inherently changeable, not fixed. Most of what we see and experience in a garden—the colors, shapes, textures, and scents of the plants—originates in nature, not in the mind of the gardener. At any given moment in time, a garden owes most of its form and appearance to natural forces, though the gardener who plants and tends it obviously assists. All this is true of Wildflower Works, even though it was designed and planted by an artist.

Of course, a human “author”—whether an artist, a professional landscape designer, or an amateur backyard gardener—determines the initial arrangement of the plants in a garden. This is not the kind of authorship required for copyright. To the extent that seeds or seedlings can be considered a “medium of expression,” they originate in nature, and natural forces—not the intellect of the gardener—determine their form, growth, and appearance. Moreover, a garden is simply too changeable to satisfy the primary purpose of fixation; its appearance is too inherently variable to supply a baseline for determining questions of copyright creation and infringement. If a garden can qualify as a “work of authorship” sufficiently “embodied in a copy,” at what point has fixation occurred? When the garden is newly planted? When its first blossoms appear? When it is in full bloom? How—and at what point in time—is a court to determine whether infringing copying has occurred?

In contrast, when a landscape designer conceives of a plan for a garden and puts it in writing—records it in text, diagrams, or drawings on paper or on a digital-storage device—we can say that his intangible intellectual property has been embodied in a fixed and tangible “copy.”This writing is a sufficiently permanent and stable copy of the designer’s intellectual expression and is vulnerable to infringing copying, giving rise to the designer’s right to claim copyright. The same cannot be said of a garden, which is not a fixed copy of the gardener’s intellectual property. Although the planting material is tangible and can be perceived for more than a transitory duration, it is not stable or permanent enough to be called “fixed.” Seeds and plants in a garden are naturally in a state of perpetual change; they germinate, grow, bloom, become dormant, and eventually die. This life cycle moves gradually, over days, weeks, and season to season, but the real barrier to copyright here is not temporal but essential. The essence of a garden is its vitality, not its fixedness. It may endure from season to season, but its nature is one of dynamic change."

Regardless of the right or wrongfulness of the court's reasoning, the effect was the same - the gardens were not works subject to copyright and, as such, moral rights could not be claimed.

This was not the end of the story, however, because on 15 March 2011, Kelley's lawyers filed a petition for a rehearing en banc. What this means, for the non-US lawyers among us, is that they asked that all the judges of the 7th Circuit reconsider the original decision, which was made by a panel of only three of the 7th Circuit judges. There is no automatic right to a rehearing en banc. The parties may request it, but a majority of the active circuit judges have to agree, and, where the case concerns a matter of public importance, often they will.

Unfortunately for Kelley, on 19 April 2011 , the three judges who issued the ruling in February signed off on a court order which stated:

"On consideration of the petition for rehearing and for rehearing en banc, no judge in active service has requested a vote on the petition for rehearing en banc, and all of the judges on the original panel have voted to deny rehearing. It is therefore ordered that the petition for rehearing and for rehearing en banc is DENIED.”

In other words, the three judges who made the original ruling unsurprisingly voted against the case being reheard and, since none of the 7th Circuit judges requested that the judges vote as to whether the case should be reheard, the judges didn’t even bother to vote on the petition. A very sorry state of affairs.

So is this the end? Well, according to the Council for Artists' Rights, Kelley may be prepared to take his fight all the way to the US Supreme Court. We will have to wait and see whether he does.

Read the full decision of the 7th Circuit here

Ai Weiwei arrest

While his porcelain sunflower seeds remain scattered across the turbine hall of the Tate Modern, the artist, Ai Weiwei remains in detention in China more than two weeks after he was arrested in Beijing.


As we reported here, Ai Weiwei's installation courted several legal problems when it opened in October 2010. These pale into insignificance however in the context of the artist's current position.

On 3 April 2011, the artist was detained at Beijing airport as he attempted to catch a flight to Hong Kong. The Chinese police have also searched his studio, confiscated his computers and questioned his assistants.

The Chinese foreign ministry has said that Ai is being investigated for economic crimes, but few further details have been supplied. However, as one of China's best known artists, known for his open criticism of the government, it seems that he has, contrary to the claims of the government, been targeted for his social and political campaigning. Indeed, in the weeks leading up to his arrest, numerous other Chinese artists, writers and online commentators were arrested and detained as the Chinese government continues to seek to quash all activists and dissidents. Further, Ai reported that he was being harassed at his Beijing studio and was under constant police surveillance. He said that the “reality of China” was that those who reflected on democracy, opening up, reform and reason were either detained or thrown into jail.

Nothing further has been heard from Ai Wei Wei since his arrest and his detention has triggered criticism from the EU, the US and other Western governments, as well as the UN's working group on enforced or involuntary disappearances. There have also been international protests staged in his support.

It is hoped that the international response to the denial of basic human rights to so many in China does not stop at criticism and that the international community starts taking action.


Source: The Guardian, 17 April 2011

Unintended consequences for the "last man standing": the Wedgwood tale of woe

Here, via Louise, comes a guest contribution from Bruce Tattersall, barrister and sometime curator of the Wedgwood Museum.  Bruce writes:

"Legislation often has implications never envisaged by Parliament.  Recently one of the most egregious examples of the law of unintended consequences was the predicament in which the Wedgwood Museum finds itself.  This fine institution (winner of the Museum of the Year 2009) has fallen foul of legislation intended to penalize companies which go into liquidation and try to evade their pension obligations.  Under this legislation in the Pensions Acts, if there is a subsidiary company still trading it can be liable for all the pensions of the parent company-- the doctrine of the “last man standing”.  This is the unenviable position of the Museum.

When the parent company, Waterford Wedgwood, went into receivership in January 2009 it left a pension debt of £134m in respect of some 7,000 members of the scheme.  There were five members of museum staff in the scheme whose total indebtedness was some £60,000.  The Pension Protection Fund (PPF) has sought to apply the relevant parts of the Pensions Act 2004, 2005 as amended in 2008 also known as the “Captain Bob” (after Robert Maxwell) provisions.

Consequentially the Museum put itself in the hands of the receivers while asking the Charity Commission if the museum collection was inalienable. 

The position of the museum and its holdings is complicated.  The museum was established in 1906 in the Etruria factory.  The initial collection comprised material gathered from all over the factory.  It was not until 1962 that an independent trust, the Wedgwood Museum Trust, was incorporated with trustees from the parent company and the Wedgwood family, then including the historian, C V Wedgwood.  At this point the collection was transferred to the Trust.  It was only in 1998 that it became a charity.  Along the road to charitable status the museum acquired further collections either purchased by the parent company and donated to it; such as the Calland Collection or, as with the Leith Hill collection (donated by Ralph Vaughan Williams), by gift. 

Presumably it was the complex nature of the Museum’s accumulation which led the Charity Commission to make its decision, which is not legally binding, that the collection was not protected and could therefore be sold.  The Commission have not made their finding public, so this deduction can only be speculative. 

The question has now been put to the courts.  What they decide may have serious consequences, not only for the Wedgwood Museum but other trust-based museums.  On a strict interpretation of the law it is possible the Museum will lose.  However, following the mischief rule, it might not. 

Lord Flight in a letter to the Daily Telegraph states, “I was involved with the legislation that set up the Pension Protection Fund; there was no intent that this could result in it taking the assets of a museum which is a charity.” 

If the mischief is what is essentially a form of fraudulent conversion, then the legislation should not apply.  Thus the question to the court is

1.         Is the collection inalienable?  If so there is no claim against it

2.         If not was the legislation intended to apply to cases such as that faced by the Museum?

In a Commons Adjournment debate on 19 October 2010 Tristram Hunt. MP for Stoke Central, pointing out that if the Museum were sold it would scarcely raise a half of the revenue needed ( in fact Christie’s has valued the collection at £20M), raised the issue with Ed Vaizey, Parliamentary Under Secretary for Communication, Culture and the Creative Industries who was fairly uncommitted but emphasized that the final decision lay with the court.  He conceded that they were in a “walk-on part in an obscure Dickensian novel in which a complicated piece of legislation has the most dramatic and unintended consequences.”  He also announced that the Museum had received a grant of £200,000 from the Museums Libraries and Archives Council and £25,000 from his department towards its legal costs.  Bill Cash, in whose constituency the Wedgwood Museum falls, intervened, inter alia wondering if a private member’s bill might solve the impasse.  Ed Vaizey assured members that the government would keep a close eye on developments and would deprecate any dismembering of the collection.

A further debate in the House of Lords, instigated by the Earl of Clancarty, elicited a reply by Baroness Rawlings who was emollient but inconclusive

“My Lords, I am grateful to the noble Earl, Lord Clancarty, who has tirelessly campaigned on this issue. We hope that museums will learn from this case and make certain that collections held in trust have legal protection to safeguard their objects. The court will determine whether the collection is available to an administrator and is put up for sale. DCMS will attempt to secure the collection for the nation. As the noble Earl said, clearly this is an extraordinary case. DCMS has helped all along, but it cannot provide further funding”,

effectively but elegantly washing her hands of it.

The case is now for consideration by the court in May 2011, the Museum’s lawyers needing more time.  Despite Ed Vaizey’s assurance that the Victoria and Albert Museum could be involved in any dispersal of the collection it may be, in the current economic climate, that the government may be unable or unwilling to organize any rescue.  Such a result would be a disaster for the Museum, Staffordshire and the nation.  Individual items such as the Wedgwood Family portrait by George Stubbs (illustrated at the top of this article) with depictions of Josiah, himself; his wife, Sarah; their daughter Susannah, mother of Charles Darwin; their sons, John a founder of the Royal Horticultural Society and Tom, a pioneer of photography surely would be refused an export licence.  Similarly, the export or dismemberment of the archive would be unthinkable.  Whatever the court’s decision it will have profound impact on the museum world.  The final question is why did the museum not pay the £60,000 to relive itself of the burden?"

MTA threatens MetroCartists

This is apparently what the fuss is all about

New York's financially challenged Metropolitan Transportation Authority (MTA) is reportedly launching proceedings against Victoria McKenzie, a local artist, for selling painted MetroCards, claiming the artist infringed  the authority's trade marked brand and logo. Ms McKenzie is one of a group of MetroCartists who assert the right to use the cards as canvas. She says:

"The use of found objects in art has been around forever, especially the use of iconic New York imagery such as the MetroCard"..

She has been asked by the MTA's marketing and advertising division to cease selling the cards and to remove any MTA-branded items from Etsy.com, an online marketplace which had 17 items on offer here under the search term 'metrocard' when this blogger checked today -- though they appeared to be holders for the card rather than anything else. As an alternative, MTA indicated its willingness to accept a royalty u=in exchange for a licence.  According to the authors of the source of this information.

"The MTA uses unpaid interns to search online for trademark infringement "when they have the time," says Aaron Donovan, a spokesman for the MTA. 

Mr. Donovon says the MTA spots violations on a daily basis and typically works with artists to secure licensing deals rather than pursue punitive measures. 

Through close to 120 licensees, the MTA generates about $500,000 a year in revenue, or about what it expected to save from cutting one express-bus line during a round of service cuts last year. Typically, artists enter into licensing deals with the authority, giving up about 10% of net revenue".

To date, Ms. McKenzie says she has sold only one MetroCard, though presumably the publicity generated by what looks like an ill-judged and unfounded claim may be expected to generate a few more.

Source: "MTA Says Artist on Wrong Track" by Shelly Banjo and Andrew Grossman, Wall Street Journal, 9 April 2011

Wacko Jacko fans issue death threats

The London Evening Standard has reported that the owners of a Hackney music studio who installed "Madonna and Child", a sculpture of Michael Jackson dangling his baby son out of a window (illustrated here), have received death threats from fans. The work, by Swedish artist Maria von Köhler, is scheduled to be displayed at 209 Hackney Road, London, until 1 May. The fans maintain that the artwork, a recreation of a notorious incident when Jackson visited Berlin in 2002, is an insult to the King of Pop's memory.

There is as yet no indication that the threats are being dealt with by the police.  This blogger wonders whether being a Michael Jackson fan would be accepted as evidence of diminished responsibility in any resulting prosecution for murder.

Art and law – in a way...

From the US law blog Above the Law comes an amusing, but, at the same time, sad story about a novel artwork created by a law student.

The unfortunate student managed to accumulate enough rejection letters from law firms to reconstruct the University Virginia School of Law building.

Creative – yes. But legal? Under English law, works of architecture/buildings are protected by copyright law as artistic works. However, the copyright in buildings on public display is not infringed by making a graphic work representing it. Does anyone know whether there is a similar exemption in US law or could the poor student be liable for copyright infringement, as well as unemployed?

Reporting on art exhibitions in Germany – fair use of images of artworks

It is a well-known principle of UK copyright law that fair dealing with a work (other than a photograph) for the purpose of reporting current events does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgment.

It seems, however, that in Germany images of artworks may only benefit from this fair use defence to copyright infringement for as long as the event that is being reported is still current or an “event of the day.”

Birgit Clark from the IPKat blog team has supplied a great summary of the decision of the German Bundesgerichtshof which deals with the issue here.

Arts Council cuts: part 2

Following on from Jeremy’s recent post, and from earlier posts here and here, the Arts Council also suffered last week following the release of a report by the Commons’ select committee on culture, media and sport on the Funding of the arts and heritage which lambasted the Counsel for “spending far too much on itself”, as well as “wasting” public money.

The report, released on 28 March 2011, reviews the costs of the Arts Council, the Council’s funding decisions and numerous other issues to be considered by arts and heritage organisations in light of the recent cuts in public spending, including the Arts Council Collection.

The Arts Council Collection is currently the largest loan collection of publicly owned modern and contemporary British art in the world, and includes fine examples of work by the UK’s most prominent artists. It is the most widely circulated of all of Britain’s national collections and can be seen in exhibitions in museums and galleries across the UK and abroad. The collection contains over 7,500 artworks and its acquisitions policy is said to have always been characterised by a spirit of risk-taking combined with an informed appraisal of current practice. In 2008/2009, the Arts Council spent £180,000 on acquisitions for the collection, and, as at 31 March 2010, the ACC was valued by its curator at £96.9 million. Works from the collection have never been sold before.

The Report notes, however, that the collection “states that at any one time 25-30% of its works are on show somewhere in the country and that this figure is high in comparison to most public collections, which typically have around 10% of their work on show at any one time. Nonetheless, this means that up to 75% of the collection is not on show at any one time.” Accordingly, the report calls upon the Arts Council to review its policy of never selling artworks from its collection top make the collection self-sustaining and mitigate the impact of the budget cuts, as well as advising that the Council aim to have at least 50% of the Collection works out on loan at any one time.

Unfortunately, the Arts Council is therefore in another difficult position – while it would clearly be able to use the money from selling works from the collection to make up for the shortfall in public funding, it does seem like the Council would also be paying a price in the compromise of the collection’s policy and value.

A piece from the collection: Composite Picture 3 (Diversified Cultural Worker), 2008, Iain Hetherington

The full report can been found here.

Source: The Guardian, The Financial Times 28 March 2011

Arts Council cuts: what's in it for the lawyers?

Arts Council England is at the centre of several different storms following this week's announcements as to which bodies were to receive more, the same amount or (in most cases) less or nothing by way of public subsidy following the UK Coalition Government's 6.9 per cent financial crisis-driven budget cut. Some people maintain that, at a time when the national health and social services are hit with cuts, it is irresponsible to give the body any money at all. Others say that it is precisely because there's a financial crisis that we should support the institutions that reflect our aspirations, our humanity and our cultural diversity.  Then sectoral snipers, supporting their own favoured theatrical, visual, mixed media and other causes, seek to strengthen their own side by attacking those with whom they compete.

Writing as a dyed-in-the-wool intellectual property lawyer with little familiarity of modern public law, I have been wondering whether we might expect any legal challenge to the current round of funding allocations by invoking the increasingly popular device of the judicial review. If there are any readers whose knowledge of that practice area exceeds mine (that should be most people!) and who are willing to explain the bases on which Arts Council grant-funding can be challenged, can they please let us all know.