Fixation and Authorship in ‘Living Art’: A Weakness in Copyright Law.

Puppy by Jeff Koons Puppy by Jeff Koons

I n 1990, Congress passed the Visual Artist’s Rights Act (VARA) as part of the Copyright Act, intended to expand and protect artists’ rights over their works. Specifically, the act acknowledges an artist’s moral rights by granting artists the rights of attribution and integrity whereby they may claim or deny authorship and prevent any modifications of their work that might result in reputational damage.

Rather than protect artistic work, the courts’ application of VARA and copyright law generally has done more to signal the suppression of the very qualities for which we value artists, namely their inventiveness and creativity. This is no clearer than in the recent case of Kelley v. Chicago Park District, in which the Seventh Circuit held that renowned artist Chapman Kelley’s Wildflower Works, a site-specific wildflower installation in Grant Park, lacked the authorship and stable fixation required for copyright protection. Ineligible for copyright protection, this “living art” was consequently precluded from moral rights protection under VARA.

The court held that Wildflower Works lacked sufficient authorship because nature, not Kelley, primarily determined the medium’s – wildflower seeds – form, growth, and appearance. While nature determines the flowers’ appearance, an artist’s influence over his medium’s appearance has never been determinative of authorship in art or law. Intuitively, authorship derives from an artist’s mastery in employing and manipulating his medium to influence the appearance of his composition as a whole. Saying that nature is the primary author of Wildflower Works because it determines the appearance of each flower is akin to saying that nature is the author of Michelangelo’s David because it determined the appearance of the marble from which the sculpture was carved. The court incorrectly focuses its discussion on the origins of the artist’s medium, rather than on how the artist manipulates that medium to produce a new whole. Indeed, as Michelangelo once said, “every block of stone has a statue inside it and it is the task of the sculptor to discover it.”

Likewise, the court argues that Wildflower Works lacks fixation given that its “constituent elements are alive and inherently changeable.” While the court recognizes that copyright does not only attach “to works that are static or fully permanent,” and denies “that artists who incorporate natural or living elements in their work can never claim copyright,” it seems to have a very superficial and constrained notion of what fixation requires. The court finds that Jeff Koons’ sculpture, Puppy, involving a metal frame covered with flowers, may be appropriately fixed for the purposes of copyright protection. Are the courts so antiquated to suggest that copyright protection hinges on the presence or absence of a metal frame or some other more ‘typical’ media, regardless of whether such a feature adds to the work’s integrity?

Artists receive moral rights because we view artistic work as an extension of the artist himself. Thus, artists have a more profound connection to, and deserve greater protection over, the commodities they produce than do producers of other commodities. The raison d’etre of moral rights is to facilitate creativity by assuring artists that the objects of their self-expression, the extensions of their personhood, may not be altered, destroyed, or appropriated without certain recourse. I am not suggesting that recent legal developments have altered the way artists today engage in the creative process. However, persistently narrow statutory interpretations may force artists to conform their work to arbitrary legal requirements in order to acquire the protection and security they need to grow their brand and profit from their work. Would this not stifle the very creativity and artistic integrity that moral rights were meant to enhance?

 

Written by Erica Esposito. Erica Esposito is a 2L at Harvard and has a degree in Art History.