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by Art Fag City on October 2, 2008 · 5 comments Fresh Links!

The Art Law Blog: Ugh

Chapman Kelley loses his lawsuit against the Chicago Park District for removing his work from a local park. The Art Law Blog breaks down why this decision is wrong.

{ 5 comments }

John Viramontes November 1, 2008 at 1:52 pm

The Council for Artists’ Rights strongly agrees with ART LAW BLOG, by Donn Zaretsky, his incisive analysis of what went terribly wrong with the 9/30/08 final ruling in Chapman Kelley Vs. Chicago Park District.

On September 30, 2008 the Court ruled protection under the Visual Artists Rights Act (VARA) was denied for the Chicago Wildflower Works (WW) on two prongs, copyrightability, and site-specificity.

According to the official court transcript, the Court declared “Accordingly, Wildflower Works could be considered either a painting or a sculpture under the Visual Artists Rights Act.”

VARA is an amendment to the copyright law and the Court’s acceptance of the WW as a visual work of art makes it ipso facto an original. Therefore, it must be accepted as copyrightable on the basis of originality. In other words, if the WW had been ruled not to be a work of visual art, the copyright question could never be surfaced.

The Court’s discussion of comparing the WW works to the oval flower beds of Monticello and concluding, that the WW was not an original, but a mere copy of a previous work, is questionable. Those Monticello flower beds were never envisioned to be a work of art. And their creator never claimed to be an artist. Contrarily, the WW was conceived by Kelley and was initially and always intended to be a work of art.

The WW looked liked most of Kelley’s paintings that he created since 1963, images of them were entered as evidence. Those works won purchase awards in shows that were juried by nationally-recognized art experts and are included in museum collections. Examples of such work can be viewed at chapmankelley.com.

Kelley’s work is in the Hirshhorn collection, the most prominent collectors of their time. Olga and Joseph H. Hirshhorn, who endowed the Hirshhorn Museum and Sculpture Garden at the Smithsonian Institute in Washington, D.C., observed about the Dallas/Fort Worth International Airport Wildflower Works on April 4, 1977, “Being as familiar as we are with Chapman Kelley’s work, we feel that the whole idea relates definitely to his painting, definitely an extension of his work”

WW was denied VARA protection by the Court because it was site-specific. However, the testimony of expert witness, Jane C. H. Jacob, art expert, clearly points in the opposite direction to the WW not being site-specific. Under direct questioning by Kelley’s attorney, Frank P. Hernandez, the following exchange took place with Jacob, beginning with page 43 of the official court transcript:

” Q. Could this work of art be moved within the park?

A. I imagine it could have, yes.

Q. And could it be moved in its entirety?

A. Kind of an interesting question. I believe it could have been disassembled and reassembled in another location.

Q. So in that sense it was not site-specific. (Italics mine)

A. Correct.”

What more is needed than simple and plain testimony from an art expert that it was not site-specific?

A most telling aspect of the park district’s weakness in this litigation is that they offered no art expert witness to challenge Kelley’s artistic vision of what can be fine art, what it can be made of and that artists themselves make those decisions.

Chapman Kelley testified repeatedly that even though the WW was designed to fit the area, the WW was portable and could have been removed cheaply.

Without the Court’s ruling that the WW had legal standing to be on park land, the originality and copyrightability questions would not come into play.

We would expect Mr. Kelley to pursue an appeal and winning on both issues and, logically, winning monetarily in proportion to the damage of his international reputation.

John Viramontes November 1, 2008 at 1:52 pm

The Council for Artists’ Rights strongly agrees with ART LAW BLOG, by Donn Zaretsky, his incisive analysis of what went terribly wrong with the 9/30/08 final ruling in Chapman Kelley Vs. Chicago Park District.

On September 30, 2008 the Court ruled protection under the Visual Artists Rights Act (VARA) was denied for the Chicago Wildflower Works (WW) on two prongs, copyrightability, and site-specificity.

According to the official court transcript, the Court declared “Accordingly, Wildflower Works could be considered either a painting or a sculpture under the Visual Artists Rights Act.”

VARA is an amendment to the copyright law and the Court’s acceptance of the WW as a visual work of art makes it ipso facto an original. Therefore, it must be accepted as copyrightable on the basis of originality. In other words, if the WW had been ruled not to be a work of visual art, the copyright question could never be surfaced.

The Court’s discussion of comparing the WW works to the oval flower beds of Monticello and concluding, that the WW was not an original, but a mere copy of a previous work, is questionable. Those Monticello flower beds were never envisioned to be a work of art. And their creator never claimed to be an artist. Contrarily, the WW was conceived by Kelley and was initially and always intended to be a work of art.

The WW looked liked most of Kelley’s paintings that he created since 1963, images of them were entered as evidence. Those works won purchase awards in shows that were juried by nationally-recognized art experts and are included in museum collections. Examples of such work can be viewed at chapmankelley.com.

Kelley’s work is in the Hirshhorn collection, the most prominent collectors of their time. Olga and Joseph H. Hirshhorn, who endowed the Hirshhorn Museum and Sculpture Garden at the Smithsonian Institute in Washington, D.C., observed about the Dallas/Fort Worth International Airport Wildflower Works on April 4, 1977, “Being as familiar as we are with Chapman Kelley’s work, we feel that the whole idea relates definitely to his painting, definitely an extension of his work”

WW was denied VARA protection by the Court because it was site-specific. However, the testimony of expert witness, Jane C. H. Jacob, art expert, clearly points in the opposite direction to the WW not being site-specific. Under direct questioning by Kelley’s attorney, Frank P. Hernandez, the following exchange took place with Jacob, beginning with page 43 of the official court transcript:

” Q. Could this work of art be moved within the park?

A. I imagine it could have, yes.

Q. And could it be moved in its entirety?

A. Kind of an interesting question. I believe it could have been disassembled and reassembled in another location.

Q. So in that sense it was not site-specific. (Italics mine)

A. Correct.”

What more is needed than simple and plain testimony from an art expert that it was not site-specific?

A most telling aspect of the park district’s weakness in this litigation is that they offered no art expert witness to challenge Kelley’s artistic vision of what can be fine art, what it can be made of and that artists themselves make those decisions.

Chapman Kelley testified repeatedly that even though the WW was designed to fit the area, the WW was portable and could have been removed cheaply.

Without the Court’s ruling that the WW had legal standing to be on park land, the originality and copyrightability questions would not come into play.

We would expect Mr. Kelley to pursue an appeal and winning on both issues and, logically, winning monetarily in proportion to the damage of his international reputation.

John Viramontes November 1, 2008 at 8:52 am

The Council for Artists’ Rights strongly agrees with ART LAW BLOG, by Donn Zaretsky, his incisive analysis of what went terribly wrong with the 9/30/08 final ruling in Chapman Kelley Vs. Chicago Park District.

On September 30, 2008 the Court ruled protection under the Visual Artists Rights Act (VARA) was denied for the Chicago Wildflower Works (WW) on two prongs, copyrightability, and site-specificity.

According to the official court transcript, the Court declared “Accordingly, Wildflower Works could be considered either a painting or a sculpture under the Visual Artists Rights Act.”

VARA is an amendment to the copyright law and the Court’s acceptance of the WW as a visual work of art makes it ipso facto an original. Therefore, it must be accepted as copyrightable on the basis of originality. In other words, if the WW had been ruled not to be a work of visual art, the copyright question could never be surfaced.

The Court’s discussion of comparing the WW works to the oval flower beds of Monticello and concluding, that the WW was not an original, but a mere copy of a previous work, is questionable. Those Monticello flower beds were never envisioned to be a work of art. And their creator never claimed to be an artist. Contrarily, the WW was conceived by Kelley and was initially and always intended to be a work of art.

The WW looked liked most of Kelley’s paintings that he created since 1963, images of them were entered as evidence. Those works won purchase awards in shows that were juried by nationally-recognized art experts and are included in museum collections. Examples of such work can be viewed at chapmankelley.com.

Kelley’s work is in the Hirshhorn collection, the most prominent collectors of their time. Olga and Joseph H. Hirshhorn, who endowed the Hirshhorn Museum and Sculpture Garden at the Smithsonian Institute in Washington, D.C., observed about the Dallas/Fort Worth International Airport Wildflower Works on April 4, 1977, “Being as familiar as we are with Chapman Kelley’s work, we feel that the whole idea relates definitely to his painting, definitely an extension of his work”

WW was denied VARA protection by the Court because it was site-specific. However, the testimony of expert witness, Jane C. H. Jacob, art expert, clearly points in the opposite direction to the WW not being site-specific. Under direct questioning by Kelley’s attorney, Frank P. Hernandez, the following exchange took place with Jacob, beginning with page 43 of the official court transcript:

” Q. Could this work of art be moved within the park?

A. I imagine it could have, yes.

Q. And could it be moved in its entirety?

A. Kind of an interesting question. I believe it could have been disassembled and reassembled in another location.

Q. So in that sense it was not site-specific. (Italics mine)

A. Correct.”

What more is needed than simple and plain testimony from an art expert that it was not site-specific?

A most telling aspect of the park district’s weakness in this litigation is that they offered no art expert witness to challenge Kelley’s artistic vision of what can be fine art, what it can be made of and that artists themselves make those decisions.

Chapman Kelley testified repeatedly that even though the WW was designed to fit the area, the WW was portable and could have been removed cheaply.

Without the Court’s ruling that the WW had legal standing to be on park land, the originality and copyrightability questions would not come into play.

We would expect Mr. Kelley to pursue an appeal and winning on both issues and, logically, winning monetarily in proportion to the damage of his international reputation.

Art Fag City November 1, 2008 at 5:30 pm

I think the title of that link is slightly misleading. I agree with the Art Law Blog. I was expressing exasperation with the court’s decision.

Art Fag City November 1, 2008 at 12:30 pm

I think the title of that link is slightly misleading. I agree with the Art Law Blog. I was expressing exasperation with the court’s decision.

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