Kelley v. Chicago Park District

                              In the

United States Court of Appeals
               For the Seventh Circuit

Nos. 08-3701 & 08-3712

C HAPMAN K ELLEY,
                                                  Plaintiff-Appellant/
                                                      Cross-Appellee,
                                  v.



C HICAGO P ARK D ISTRICT,
                                                 Defendant-Appellee/
                                                    Cross-Appellant.


            Appeals from the United States District Court
        for the Northern District of Illinois, Eastern Division.
              No. 1:04-cv-07715—David H. Coar, Judge.



  A RGUED S EPTEMBER 10, 2009—D ECIDED F EBRUARY 15, 2011




 Before M ANION, S YKES, and T INDER, Circuit Judges.
  S YKES, Circuit Judge. Chapman Kelley is a nationally
recognized artist known for his representational
paintings of landscapes and flowers—in particular, ro-
mantic floral and woodland interpretations set within
ellipses. In 1984 he received permission from the
2                                  Nos. 08-3701 & 08-3712

Chicago Park District to install an ambitious wildflower
display at the north end of Grant Park, a prominent
public space in the heart of downtown Chicago. “Wild-
flower Works” was thereafter planted: two enormous
elliptical flower beds, each nearly as big as a football
field, featuring a variety of native wildflowers and
edged with borders of gravel and steel.
  Promoted as “living art,” Wildflower Works received
critical and popular acclaim, and for a while Kelley and
a group of volunteers tended the vast garden, pruning
and replanting as needed. But by 2004 Wildflower
Works had deteriorated, and the City’s goals for Grant
Park had changed. So the Park District dramatically
modified the garden, substantially reducing its size,
reconfiguring the oval flower beds into rectangles, and
changing some of the planting material.
  Kelley sued the Park District for violating his “right of
integrity” under the Visual Artists Rights Act of 1990
(“VARA”), 17 U.S.C. § 106A, and also for breach of con-
tract. The contract claim is insubstantial; the main event
here is the VARA claim, which is novel and tests the
boundaries of copyright law. Congress enacted this
statute to comply with the nation’s obligations under
the Berne Convention for the Protection of Literary and
Artistic Works. VARA amended the Copyright Act,
importing a limited version of the civil-law concept
of the “moral rights of the artist” into our intellectual-
property law. In brief, for certain types of visual art—
paintings, drawings, prints, sculptures, and exhibi-
tion photographs—VARA confers upon the artist certain
Nos. 08-3701 & 08-3712                                       3

rights of attribution and integrity. The latter include the
right of the artist to prevent, during his lifetime, any
distortion or modification of his work that would be
“prejudicial to his . . . honor or reputation,” and to
recover for any such intentional distortion or modifica-
tion undertaken without his consent. See 17 U.S.C.
§ 106A(a)(3)(A).
  The district court held a bench trial and entered a
split judgment. The court rejected Kelley’s moral-rights
claim for two reasons. First, the judge held that
although Wildflower Works could be classified as both
a painting and a sculpture and therefore a work of visual
art under VARA, it lacked sufficient originality to be
eligible for copyright, a foundational requirement in
the statute. Second, following the First Circuit’s deci-
sion in Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128
(1st Cir. 2006), the court concluded that site-specific art
like Wildflower Works is categorically excluded from
protection under VARA. The court then held for Kelley
on the contract claim, but found his evidence of damages
uncertain and entered a nominal award of $1. Both
sides appealed.
  We affirm in part and reverse in part. There is reason
to doubt several of the district court’s conclusions: that
Wildflower Works is a painting or sculpture; that it
flunks the test for originality; and that all site-specific art
is excluded from VARA. But the court was right to
reject this claim; for reasons relating to copyright’s re-
quirements of expressive authorship and fixation, a
living garden like Wildflower Works is not copy-
rightable. The district court’s treatment of the contract
4                                  Nos. 08-3701 & 08-3712

claim is another matter; the Park District is entitled to
judgment on that claim as well.


                     I. Background
  Kelley is a painter noted for his use of bold, elliptical
outlines to surround scenes of landscapes and flowers.
In the late-1970s and 1980s, he moved from the canvas
to the soil and created a series of large outdoor wild-
flower displays that resembled his paintings. He planted
the first in 1976 alongside a runway at the Dallas-
Fort Worth International Airport and the second in 1982
outside the Dallas Museum of Natural History. The
wildflower exhibit at the museum was temporary; the
one at the airport just “gradually petered out.”
  In 1983 Kelley accepted an invitation from Chicago-
based oil executive John Swearingen and his wife,
Bonnie—collectors of Kelley’s paintings—to come to
Chicago to explore the possibility of creating a large
outdoor wildflower display in the area. He scouted sites
by land and by air and eventually settled on Grant Park,
the city’s showcase public space running along Lake
Michigan in the center of downtown Chicago. This loca-
tion suited Kelley’s artistic, environmental, and educa-
tional mission; it also provided the best opportunity to
reach a large audience. Kelley met with the Park
District superintendent to present his proposal, and on
June 19, 1984, the Park District Board of Commissioners
granted him a permit to install a “permanent Wild
Flower Floral Display” on a grassy area on top of the
underground Monroe Street parking garage in Daley
Nos. 08-3701 & 08-3712                                    5

Bicentennial Plaza in Grant Park. Under the terms of
the permit, Kelley was to install and maintain the
exhibit at his own expense. The Park District reserved
the right to terminate the installation by giving Kelley
“a 90 day notice to remove the planting.”
  Kelley named the project “Chicago Wildflower Works I.”
The Park District issued a press release announcing that
“a new form of ‘living’ art” was coming to Grant Park—
“giant ovals of multicolored wildflowers” created by
Kelley, a painter and “pioneer in the use of natural mate-
rials” who “attracted national prominence for his efforts
to incorporate the landscape in artistic creation.” The
announcement explained that “[o]nce the ovals mature,
the results will be two breathtaking natural canvases of
Kelley-designed color patterns.”
  In the late summer of 1984, Kelley began installing
the two large-scale elliptical flower beds at the Grant Park
site; they spanned 1.5 acres of parkland and were set
within gravel and steel borders. A gravel walkway
bisected one of the ovals, and each flower bed also ac-
commodated several large, preexisting air vents that
were flush with the planting surface, providing ventila-
tion to the parking garage below. For planting material
Kelley selected between 48 and 60 species of self-sus-
taining wildflowers native to the region. The species
were selected for various aesthetic, environmental, and
cultural reasons, but also to increase the likelihood that
the garden could withstand Chicago’s harsh winters
and survive with minimal maintenance. Kelley designed
the initial placement of the wildflowers so they would
6                                 Nos. 08-3701 & 08-3712

blossom sequentially, changing colors throughout the
growing season and increasing in brightness towards
the center of each ellipse. He purchased the initial
planting material—between 200,000 and 300,000 wild-
flower plugs—at a cost of between $80,000 and $152,000.
In September of 1984, a battery of volunteers planted
the seedlings under Kelley’s direction.
  When the wildflowers bloomed the following year,
Wildflower Works was greeted with widespread acclaim.
Chicago’s mayor, the Illinois Senate, and the Illinois
Chapter of the American Society of Landscape Artists
issued commendations. People flocked to see the lovely
display—marketed by the Park District as “living land-
scape art”—and admiring articles appeared in national
newspapers. Wildflower Works was a hit. Here’s a picture:
Nos. 08-3701 & 08-3712                                   7

  For the next several years, Kelley’s permit was renewed
and he and his volunteers tended the impressive garden.
They pruned and weeded and regularly planted new
seeds, both to experiment with the garden’s composition
and to fill in where initial specimen had not flourished.
Of course, the forces of nature—the varying bloom
periods of the plants; their spread habits, compatibility,
and life cycles; and the weather—produced constant
change. Some wildflowers naturally did better than
others. Some spread aggressively and encroached on
neighboring plants. Some withered and died. Unwanted
plants sprung up from seeds brought in by birds and the
wind. Insects, rabbits, and weeds settled in, eventually
taking a toll. Four years after Wildflower Works was
planted, the Park District decided to discontinue the
exhibit. On June 3, 1988, the District gave Kelley a 90-day
notice of termination.
  Kelley responded by suing the Park District in federal
court, claiming the termination of his permit violated
the First Amendment. The parties quickly settled; in
exchange for dismissal of the suit, the Park District
agreed to extend Kelley’s permit for another year. On
September 14, 1988, the Park District issued a “Temporary
Permit” to Kelley and Chicago Wildflower Works, Inc., a
nonprofit organization formed by his volunteers. This
permit authorized them “to operate and maintain a two
ellipse Wildflowers Garden Display . . . at Daley Bicenten-
nial Plaza in Grant Park” until September 1, 1989. The
permit stipulated that Kelley “will have responsibility
and control over matters relating to the aesthetic design
and content of Wildflower Works I,” and Wildflower
8                                  Nos. 08-3701 & 08-3712

Works, Inc. “shall maintain the Wildflower Works I at
no cost to the Chicago Park District including, with-
out limitation, weeding and application of fertilizer.”
Although it did not contain a notice-of-termination pro-
vision, the permit did state that “[t]he planting material
is the property of Mr. Chapman Kelley” and that Kelley
“may remove the planting material” if the permit
was not extended. Finally, the permit provided that
“[t]his agreement does not create any proprietary
interest for Chicago Wildflower Works, Inc., or Mr. Chap-
man Kelley in continuing to operate and maintain the
Wildflower Garden Display after September 1, 1989.”
  The Park District formally extended this permit each
succeeding year through 1994. After that point Kelley
and his volunteers continued to cultivate Wildflower
Works without a permit, and the Park District took no
action, adverse or otherwise, regarding the garden’s
future. In March 2004 Kelley and Jonathan Dedmon,
president of Wildflower Works, Inc., attended a luncheon
to discuss the 20th anniversary of Wildflower Works. At
the luncheon Dedmon asked Park District Commissioner
Margaret Burroughs if Wildflower Works needed a
new permit. Commissioner Burroughs responded, “You’re
still there, aren’t you? That’s all you need to do.”
  Three months later, on June 10, 2004, Park District
officials met with Kelley and Dedmon to discuss
problems relating to inadequate maintenance of the
garden and forthcoming changes to Grant Park necessi-
tated by the construction of the adjacent Millennium
Park. The officials proposed reconfiguring Wildflower
Nos. 08-3701 & 08-3712                                    9

Works—decreasing its size from approximately 66,000
square feet to just under 30,000 square feet and remaking
its elliptical flower beds into rectangles. The District’s
director of development invited Kelley’s views on this
proposal but made it clear that the District planned to
go forward with the reconfiguration with or without
Kelley’s approval. Kelley objected to the proposed
changes, but did not request an opportunity to remove
his planting material before the reconfiguration took
place. A week later the Park District proceeded with
its plan and reduced Wildflower Works to less
than half its original size. The elliptical borders became
rectilinear, weeds were removed, surviving wildflowers
were replanted in the smaller-scale garden, and some
new planting material was added. Dedmon sent a letter
of protest to the Park District.
  Kelley then sued the Park District for violating his
moral rights under VARA. He claimed that Wildflower
Works was both a painting and a sculpture and therefore
a “work of visual art” under VARA, and that the Park
District’s reconfiguration of it was an intentional “distor-
tion, mutilation, or other modification” of his work and
was “prejudicial to his . . . honor or reputation.” See 17
U.S.C. § 106A(a)(3)(A). He also alleged breach of contract;
he claimed that Commissioner Burroughs’s remark
created an implied contract that the Park District had
breached when it altered Wildflower Works without
10                                    Nos. 08-3701 & 08-3712

providing reasonable notice.1 On the VARA claim Kelley
sought compensation for the moral-rights violation,
statutory damages, and attorney’s fees; on the contract
claim he sought the fair-market value of the planting
material removed in the reconfiguration. He later quanti-
fied his damages, estimating the value of the plants at
$1.5 million and requesting a staggering $25 million for
the VARA violation.
  The case proceeded to a bench trial, and the district
court entered judgment for the Park District on the VARA
claim and for Kelley on the contract claim. See Kelley v.
Chi. Park Dist., No. 04 C 07715, 2008 WL 4449886 (N.D. Ill.
Sept. 29, 2008). The judge first concluded that Wild-
flower Works could be classified as both a painting and
a sculpture and therefore qualified as a work of visual
art under VARA. Id. at *4-5. But he also held that Wild-
flower Works was insufficiently original for copyright,
a prerequisite to moral-rights protection under VARA.
Id. at *6. Alternatively, the judge concluded that Wild-
flower Works was site-specific art, and following the
First Circuit’s decision in Phillips, held that VARA did not
apply to this category of art. Id. at *6-7. On the con-
tract claim the court construed the Chicago Park
District Act, 70 ILL. C OMP. S TAT. 1505/7.01, to permit
individual commissioners to enter into binding contracts



1
  The complaint also alleged that the Park District’s actions
constituted an unlawful taking, but the district court dismissed
this count prior to trial. The takings claim is not at issue on
appeal.
Nos. 08-3701 & 08-3712                                        11

on the Park District’s behalf. Id. at *7-8. The judge
found that Commissioner Burroughs’s statement—
“You’re still there, aren’t you? That’s all you need to
do.”—created an implied contract that the Park District
had breached by failing to give Kelley reasonable
notice before altering Wildflower Works. Id. But the
judge also concluded that Kelley had failed to prove
damages to a reasonable certainty and awarded $1 in
nominal damages. Id. at *9.
  Kelley appealed, challenging the adverse judgment on
the VARA claim and the district court’s treatment of the
damages issue on the contract claim. The Park District
cross-appealed from the judgment on the contract claim.


                        II. Discussion
   This case comes to us from a judgment entered after
a bench trial; we review the district court’s factual
findings for clear error and its conclusions of law de novo.
Spurgin-Dienst v. United States, 359 F.3d 451, 453 (7th Cir.
2004). In this circuit, questions of copyright eligibility
are issues of law subject to independent review. Schrock
v. Learning Curve Int’l, Inc., 586 F.3d 513, 517 (7th Cir. 2009).


A. Kelley’s Moral-Rights Claim Under the Visual Artists
   Rights Act of 1990
  1. A brief history of moral rights
  That artists have certain “moral rights” in their work is
a doctrine long recognized in civil-law countries but
only recently imported into the United States. Moral
12                                    Nos. 08-3701 & 08-3712

rights are generally grouped into two categories: rights of
attribution and rights of integrity. “Rights of attribution”
generally include the artist’s right to be recognized as the
author of his work, to publish anonymously and pseu-
donymously, to prevent attribution of his name to
works he did not create, and to prevent his work from
being attributed to other artists. Carter v. Helmsley-
Spear, Inc., 71 F.3d 77, 81 (2d Cir. 1995) (citing R ALPH E.
L ERNER & JUDITH B RESLER, A RT L AW 419-20 (1989)). “Rights
of integrity” include the artist’s right to prevent the
modification, mutilation, or distortion of his work, and
in some cases (if the work is of recognized stature),
to prevent its destruction. Id. at 81-82 (citing A RT L AW
at 420-21).
   Originating in nineteenth-century France, moral rights—
le droit moral2 —are understood as rights inhering in the
artist’s personality, transcending property and contract
rights and existing independently of the artist’s economic
interest in his work. See 3 M ELVILLE B. N IMMER &
D AVID N IMMER, N IMMER ON C OPYRIGHT § 8D.01[A]
(2010); 5 W ILLIAM F. P ATRY, P ATRY ON C OPYRIGHT §§ 16:1,
16:3 (2010); John Henry Merryman, The Refrigerator of
Bernard Buffet, 27 H ASTINGS L.J. 1023, 1023-28 (1976).
American copyright law, on the other hand, protects the
economic interests of artists; Article I of the Constitution



2
  The use of the French singular “connotes an indivisible
package of rights, as distinguished from the plural ‘moral
rights,’ reflective of the current American concept of
divisibility.” 3 M ELVILLE B. N IMMER & D AVID N IMMER , N IMMER
ON C OPYRIGHT § 8D.01[A] n.4 (2010).
Nos. 08-3701 & 08-3712                                             13

authorizes Congress “To Promote the Progress of Science
and useful Arts, by securing for limited Times to
Authors and Inventors the exclusive Right to their re-
spective Writings and Discoveries.” U.S. C ONST. art. 1, § 8,
cl. 8. Unlike other intellectual-property rights, moral
rights are unrelated to the artist’s pecuniary interests
and are grounded in philosophical ideas about the
intrinsic nature and cultural value of art rather than
natural-property or utility justifications.3 See Carter, 71
F.3d at 81 (describing moral rights as “rights of a
spiritual, non-economic and personal nature [that] . . .
spring from a belief that an artist in the process of
creation injects his spirit into the work and that the
artist’s personality, as well as the integrity of the work,
should therefore be protected and preserved”). VARA
introduced a limited version of this European doctrine
into American law, but it is not an easy fit.4



3
  For different views on the theoretical foundations of moral-
rights doctrine, see Charles Cronin, Dead on the Vine: Living and
Conceptual Art and VARA, 12 V AND . J. E NT . & T ECH . L. 209, 215-18
(2010); Amy M. Adler, Against Moral Rights, 97 C ALIF . L. R EV .
263, 266-71 (2009); Roberta Rosenthal Kwall, Inspiration and
Innovation: The Intrinsic Dimension of the Artistic Soul, 81 N OTRE
D AME L. R EV . 1945, 1976-83 (2006); Burton Ong, Why Moral
Rights Matter: Recognizing the Intrinsic Value of Integrity Rights,
26 C OLUM . J.L. & A RTS 297, 299-301 (2003); and J. H. Merryman,
The Public Interest in Cultural Property, 77 C ALIF . L. R EV . 339
(1989).
4
  For economic and pragmatic analysis of moral-rights doctrine,
see William M. Landes & Richard A. Posner, The Economic
                                                 (continued...)
14                                      Nos. 08-3701 & 08-3712

  VARA was enacted as a consequence of the United
States’ accession to the Berne Convention for the Protec-
tion of Literary and Artistic Works. After many years
of resistance, the Senate ratified the treaty in 1988,
bringing the United States into the Berne Union effective
the following year. See 4 N IMMER § 17.01[C][2] (2010); 5
P ATRY §§ 16:1, 16:3. The Berne Convention dates to 1886,
when seven European nations (plus Haiti and Tunisia)
joined together to extend copyright protection across
their borders. See 4 N IMMER § 17.01[B][1] nn.10 & 17
(2002). During the course of the next century, many other
nations joined, and the treaty underwent periodic revi-
sions, most notably for our purposes in 1928 when
Article 6bis was added, incorporating the concept of
moral rights. See 3 id. § 8D.01[B] (2004); 5 P ATRY §§ 16:1,
16:3. Article 6bis provides:
     (1) Independently of the author’s economic rights,
     and even after the transfer of the said rights, the
     author shall have the right to claim authorship of the
     work and to object to any distortion, mutilation or
     other modification of, or other derogatory action in
     relation to, the said work, which would be prejudicial
     to his honor or reputation.


4
  (...continued)
Structure of Intellectual Property Law, Ch. 10, “Moral Rights
and the Visual Artists Rights Act,” 270-93 (2003); Henry
Hansmann & Marina Santilli, Authors’ and Artists’ Moral Rights:
A Comparative Legal and Economic Analysis, 26 J. L EGAL S TUD . 95
(1997); and Thomas F. Cotter, Pragmatism, Economics, and
the Droit Moral, 76 N.C. L. R EV . 1 (1997).
Nos. 08-3701 & 08-3712                                    15

    ....
    (3) The means of redress for safeguarding the
    rights granted by this Article shall be governed by the
    legislation of the country where protection is claimed.
Berne Convention for the Protection of Literary and
Artistic Works, art. 6bis, Sept. 9, 1886, as revised at Paris
on July 24, 1971, S. T REATY D OC. N O . 99-27 (1986).
  When the United States joined the Berne Union in 1989,
the concept of moral rights was largely unknown in
American law. See Lee v. A.R.T. Co., 125 F.3d 580, 582
(7th Cir. 1997) (“[I]t was accepted wisdom [before
VARA] that the United States did not enforce any claim
of moral rights.”); see also Weinstein v. Univ. of Ill., 811
F.2d 1091, 1095 n.3 (7th Cir. 1987) (The Continental princi-
ple of le droit moral is a doctrine that “no American juris-
diction follows as a general matter.”); Merryman, The
Refrigerator of Bernard Buffet, 27 H ASTINGS L.J. at 1035-36
(“The moral right of the artist, and in particular that
component called the right of integrity of the work of
art, simply does not exist in our law.”). Article 6bis was
a major obstacle to Berne ratification. See Martin v. City
of Indianapolis, 192 F.3d 608, 611 (7th Cir. 1999) (The
treaty’s moral-rights concept “was controversial in this
country” and was embraced post-Berne only “in a very
limited way.”); Carter, 71 F.3d at 82-83 (“The issue of
federal protection of moral rights was a prominent
hurdle in the debate over whether the United States
should join the Berne Convention . . . .”); see also 3
N IMMER § 8D.02[A]-[D] (2004); 5 P ATRY §§ 16:1, 16:3;
16                                 Nos. 08-3701 & 08-3712

Roberta Rosenthal Kwall, How Fine Art Fares Post VARA, 1
M ARQ . INTELL. P ROP. L. R EV. 1, 1-4 (1997).
  American unease with European moral-rights doc-
trine—more particularly, the obligations imposed by
Article 6bis—persisted beyond Berne ratification. Indeed,
Congress initially took the position that domestic law
already captured the concept in existing copyright and
common-law doctrines and in the statutory law of some
states. See Berne Convention Implementation Act of
1988, Pub. L. No. 100-568, §§ 2(2), (3), 102 Stat. 2853; 3
N IMMER § 8D.02[D][1] (2009); 5 P ATRY § 16:3. This was
seen as an implausible claim. See 3 N IMMER § 8D.02[D][1]
(“Th[e] Congressional finding flies in the face of num-
erous judicial and scholarly pronouncements . . . .”);
5 P ATRY § 16:3 (The American position that existing fed-
eral and state laws satisfied minimum Berne obligations
created “a web of fictional compliance.”). “[A] question of
international credibility existed,” and “some Berne co-
Unionists . . . expressed doubts regarding the accuracy
or sincerity of the U.S. declaration that its law already
afforded a degree of moral rights protection equivalent
to Berne standards.” Jane C. Ginsburg, Copyright in the
101st Congress: Commentary on the Visual Artists Rights Act
and the Architectural Works Copyright Protection Act of
1990, 14 C OLUM .-VLA J.L. & A RTS 477, 478-79 (1990). VARA
was enacted to fill this perceived gap, but its moral-
rights protection is quite a bit narrower than its
European counterpart.
Nos. 08-3701 & 08-3712                                    17

  2. VARA’s scope
  VARA amended the Copyright Act and provides a
measure of protection for a limited set of moral rights
falling under the rubric of “rights of attribution” and
“rights of integrity”—but only for artists who create
specific types of visual art. 17 U.S.C. § 106A(a). The statu-
tory coverage is limited to paintings, drawings, prints,
sculptures, and photographs created for exhibition
existing in a single copy or a limited edition of 200 or
less. See id. § 101 (defining “work of visual art”). The
rights conferred by the statute exist independently of
property rights; the artist retains them even after he
no longer holds title to his work. Id. § 106A(a).
  More specifically, VARA’s attribution and integrity
rights are as follows:
      (a) Rights of attribution and integrity. Subject
    to section 107 and independent of the exclusive
    rights provided in section 106, the author of a work of
    visual art—
      (1) shall have the right—
            (A) to claim authorship of that work, and
            (B) to prevent the use of his or her name as
          the author of any work of visual art which he
          or she did not create;
      (2) shall have the right to prevent the use of his or
    her name as the author of the work of visual art in
    the event of distortion, mutilation, or other modifica-
    tion of the work which would be prejudicial to his
    or her honor or reputation; and
18                                     Nos. 08-3701 & 08-3712

       (3) subject to the limitations set forth in section
     113(d), shall have the right—
              (A) to prevent any intentional distortion, mutila-
           tion, or other modification of that work which would
           be prejudicial to his or her honor or reputation, and
           any intentional distortion, mutilation, or modification
           of that work is a violation of that right, and
             (B) to prevent any destruction of a work of
           recognized stature, and any intentional or
           grossly negligent destruction of that work is
           a violation of that right.
17 U.S.C. § 106A(a) (emphasis added). At issue here is
the right of integrity conferred by subsection (a)(3)(A),
which precludes any intentional modification or distor-
tion of a work of visual art that “would be prejudicial
to [the artist’s] honor or reputation.”
 A qualifying “work of visual art” is defined as:
       (1) a painting, drawing, print, or sculpture, existing
     in a single copy, in a limited edition of 200 or fewer
     that are signed and consecutively numbered by the
     author, or, in the case of a sculpture, in multiple
     cast, carved, or fabricated sculptures of 200 or fewer
     that are consecutively numbered by the author and
     bear the signature or other identifying mark of the
     author; or
       (2) a still photographic image produced for exhibi-
     tion purposes only, existing in a single copy that is
     signed by the author, or in a limited edition of 200
Nos. 08-3701 & 08-3712                                  19

   copies or fewer that are signed and consecutively
   number by the author.
Id. § 101 (emphasis added). This definition also contains
a number of specific exclusions: e.g., posters, maps,
and globes; books, newspapers, magazines, and other
periodicals; “motion picture[s] or other audiovisual
work[s]”; merchandising and promotional materials;
“any work made for hire”; and “any work not subject to
copyright protection under this title.” Id.
  This last exclusion simply reinforces the point that
VARA supplements general copyright protection; to
qualify for moral rights under VARA, a work must first
satisfy basic copyright standards. Under the Copyright
Act of 1976, copyright subsists 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.”
Id. § 102(a). “Works of authorship” include “pictorial,
graphic, and sculptural works.” Id. § 102(a)(5). VARA’s
definition of “work of visual art” is limited to a narrow
subset of this broader universe of “pictorial, graphic,
and sculptural works” that are otherwise eligible for
copyright; only a select few categories of art get the
extra protection provided by the moral-rights concept.
5 P ATRY § 16:7 (2010) (“Protected ‘works of visual art’ is
a narrower subcategory of ‘pictorial, graphic, and sculp-
tural works,’ protected in section 102(a)(5).”).
  Several exceptions limit the scope of the rights
granted under the statute:
20                                     Nos. 08-3701 & 08-3712

       (c) Exceptions. (1) The modification of a work
     of visual art which is a result of the passage of time
     or the inherent nature of the materials is not a distor-
     tion, mutilation, or other modification described in
     subsection (a)(3)(A).
        (2) The modification of a work of visual art which is the
     result of conservation, or of the public presentation, in-
     cluding lighting and placement, of the work is not a
     destruction, distortion, mutilation, or other modification
     described in subsection (a)(3) unless the modification
     is caused by gross negligence.
17 U.S.C. § 106A(c) (emphasis added). The second of
these—the “public presentation” exception—is at issue
here. Another exception invoked by the Park District is
found in a different section of the Copyright Act that
defines the scope of a copyright owner’s rights:
     (d)(1) In a case in which—
           (A) a work of visual art has been incorporated in or
         made part of a building in such a way that removing
         the work from the building will cause the destruc-
         tion, distortion, mutilation, or other modification
         of the work as described in section 106A(a)(3), and
           (B) the author consented to the installation of
         the work in the building either before the effective
         date set forth in section 610(a) of the Visual Artists
         Rights Act of 1990, or in a written instrument
         executed on or after such effective date that is
         signed by the owner of the building and the
         author and that specifies that installation of the
         work may subject the work to destruction, distor-
Nos. 08-3701 & 08-3712                                        21

         tion, mutilation, or other modification, by reason
         of its removal,
     then the rights conferred by paragraphs (2) and (3) of
     section 106A(a) shall not apply.
Id. § 113 (emphasis added). This is known as the “building
exception.”
  VARA rights cannot be transferred or assigned, but
they can be waived in a writing signed by the artist and
“specifically identify[ing] the work, and uses of that
work, to which the waiver applies.” Id. § 106A(e)(1).
Absent a written waiver, the artist retains VARA rights
during his lifetime even if he transfers ownership of
the work or assigns his copyright.5 Id. § 106A(d)(1), (e)(2).


    3. Is Wildflower Works a painting or sculpture?
  The district court held that Wildflower Works was
both a painting and a sculpture but was insufficiently
original to qualify for copyright. Alternatively, the


5
  VARA applies to works created after its effective date (June 1,
1991, six months after its December 1, 1990 date of enactment)
and works created before its effective date “but title to which
has not, as of such effective date, been transferred from
the author.” Visual Artists Rights Act of 1990, Pub. L. No. 101-
650, § 610, 104 Stat. 5132. Wildflower Works was created
before VARA’s effective date, but the parties stipulated that
Kelley owns the planting material. Kelley has not executed
a written waiver of VARA rights.
22                                  Nos. 08-3701 & 08-3712

court concluded that it was site-specific art and held that
all site-specific art is implicitly excluded from VARA.
Other arguments—in particular, whether Wildflower
Works satisfies additional threshold requirements for
copyright and whether VARA’s public-presentation or
building exceptions applied—were not reached.
  On appeal Kelley contests the district court’s conclu-
sions regarding originality and site-specific art. The
Park District defends these holdings and also reiterates
the other arguments it made in the district court, except
one: The Park District has not challenged the district
court’s conclusion that Wildflower Works is a painting
and a sculpture.
  This is an astonishing omission. VARA’s definition of
“work of visual art” operates to narrow and focus the
statute’s coverage; only a “painting, drawing, print, or
sculpture,” or an exhibition photograph will qualify.
These terms are not further defined, but the overall struc-
ture of the statutory scheme clearly illuminates the
limiting effect of this definition. Copyright’s broad
general coverage extends to “original works of author-
ship,” and this includes “pictorial, graphic, and sculptural
works.” 17 U.S.C. § 102(a)(5). The use of the adjectives
“pictorial” and “sculptural” suggests flexibility and
breadth in application. In contrast VARA uses the
specific nouns “painting” and “sculpture.” To qualify for
moral-rights protection under VARA, Wildflower Works
cannot just be “pictorial” or “sculptural” in some aspect
or effect, it must actually be a “painting” or a “sculpture.”
Not metaphorically or by analogy, but really.
Nos. 08-3701 & 08-3712                                         23

  That Kelley considered the garden to be both a
painting and a sculpture—only rendered in living
material—is not dispositive. He also characterized it
as an experiment in environmental theory, telling a re-
porter he was trying to “figure out the economic and
ecological impact of introducing wildflowers into cit-
ies.” In promoting Wildflower Works, Kelley variously
described the project as a “living wildflower painting,” a
“study on wildflower landscape and management,” and
“a new vegetative management system that beautifies
[the] landscape economically with low-maintenance
wildflowers.”
  Kelley’s expert, a professor of art history, reinforced
his view that Wildflower Works was both a painting and
a sculpture, but the district court largely disregarded
her testimony as unhelpful.6 Kelley, 2008 WL 4449886, at
*5. For its part the Park District initially marketed Wild-
flower Works as “living art,” but this adds little to the
analysis. VARA plainly uses the terms “painting” and
“sculpture” as words of limitation. Even assuming a
generous stance on what qualifies, see 5 P ATRY § 16:7
(suggesting a “liberal attitude toward what may be con-
sidered a painting, drawing, print, or sculpture”), the
terms cannot be read coextensively with the broader


6
  Among other things, the expert testified that Wildflower
Works was both a painting and a sculpture because “three
dimensional objects become two dimensional paintings when
viewed from airplanes,” an assertion the district court char-
acterized as “strange.” Kelley v. Chi. Park Dist., No. 04 C 07715,
2008 WL 4449886, at *5 (N.D. Ill. Sept. 29, 2008).
24                                       Nos. 08-3701 & 08-3712

categories of “pictorial” and “sculptural” works that are
generally eligible for copyright under § 102(a)(5). If a
living garden like Wildflower Works really counts as
both a painting and a sculpture, then these terms do no
limiting work at all.
  The district judge worried about taking “too literalist
an approach to determining whether a given object quali-
fies as a sculpture or painting.” Kelley, 2008 WL 4449886,
at *4. His concern was the “tension between the law and
the evolution of ideas in modern or avant garde art; the
former requires legislatures to taxonomize artistic cre-
ations, whereas the latter is occupied with expanding
the definition of what we accept to be art.” Id. We agree
with this important insight. But there’s a big difference
between avoiding a literalistic approach and embracing
one that is infinitely malleable. The judge appears to
have come down too close to the latter extreme.7



7
   The district court basically concluded that the term “sculp-
ture” included any three-dimensional art form—that is, any
“non-two dimensional” work that can be called “art.” Kelley,
2008 WL 4449886, at *5. As we have noted, this expansive
approach fails to distinguish between “sculptural works,”
included in the broad subject matter of copyright, and VARA’s
use of the more limited term “sculpture.” As for “painting,” the
judge consulted this verb definition for “paint”: “ ‘[1] to apply
color, pigment, or paint to . . . [2] to produce in lines and colors
on a surface by applying pigments, [3] to depict by such lines
and colors, [4] to decorate, adorn, or variegate by applying
lines and colors.’ ” Id. (quoting Merriam-Webster’s Online
                                                       (continued...)
Nos. 08-3701 & 08-3712                                          25




7
   (...continued)
Dictionary, http://www.m-w.com/dictionary/paint[1] (last vis-
ited September 25, 2008)). The judge then characterized Wild-
flower Works as “[a]n exhibit that corrals the variegation of
wildflowers into pleasing oval swatches” and concluded
from this that the garden “could certainly fit within some of
the[se] . . . definitions of a painting.” Id.
   As we have explained, however, VARA’s definition of a
“work of visual art” uses nouns, not verbs. The noun “painting”
is more precise than the verb “paint.” A “painting” is:
    1.a. Painted matter; that which is painted; . . . a representa-
    tion on a surface executed in paint or colours; a painted
    picture or likeness. b. The representing of a subject on a
    surface by the application of paint or colours; the art of
    making such representations; . . . the practice of applying
    paint to a canvas, etc., for any artistic purpose.
Painting Definition, O XFORD E NGLISH D ICTIONARY , http://www.
oed.com/viewdictionaryentry/Entry/136092 (last visited Feb. 10,
2011). The noun “sculpture” means:
    1.a. . . . the process or art of carving or engraving a hard
    material so as to produce designs or figures in relief, in
    intaglio, or in the round. In modern use, that branch of
    fine art which is concerned with the production of figures
    in the round or in relief, either by carving, by fashioning
    some plastic substance, or by making a mould for casting
    in metal; the practice of this art. . . . 2. concr. a. The
    product of the sculptor’s art; that which is sculptured
    (or engraved); sculptured figures in general. b. In particu-
    larized sense: A work of sculpture; a sculptured (or en-
    graved) figure or design.
                                                    (continued...)
26                                       Nos. 08-3701 & 08-3712

  In short, this case raises serious questions about
the meaning and application of VARA’s definition of
qualifying works of visual art—questions with poten-
tially decisive consequences for this and other moral-
rights claims. But the Park District has not challenged
this aspect of the district court’s decision, so we move
directly to the question of copyrightability, which is
actually where the analysis should start in the first place.


    4. Is Wildflower Works copyrightable?
  To merit copyright protection, Wildflower Works must
be an “original work[] of authorship fixed in a[] tangible
medium of expression . . . from which [it] can be
perceived, reproduced, or otherwise communicated.” 17
U.S.C. § 102(a). The district court held that although
Wildflower Works was both a painting and a sculpture,
it was ineligible for copyright because it lacked orig-
inality. There is a contradiction here. As we have ex-
plained, VARA supplements general copyright protec-
tion and applies only to artists who create the specific
subcategories of art enumerated in the statute. VARA-
eligible paintings and sculptures comprise a discrete
subset of otherwise copyrightable pictorial and sculptural



7
  (...continued)
Sculpture D efinition, id., http://www.oed.com /
viewdictionaryentry/Entry/173877 (last visited Feb. 10, 2011).
A living garden might be said to have “painterly” or “sculp-
tural” attributes, but it’s hard to classify a garden as a “painting”
or “sculpture” as these terms are commonly understood.
Nos. 08-3701 & 08-3712                                       27

works; the statute designates these works of fine art as
worthy of special protection. If a work is so lacking in
originality that it cannot satisfy the basic requirements
for copyright, then it can hardly qualify as a painting
or sculpture eligible for extra protection under VARA.
See Cronin, Dead on the Vine, 12 V AND. J. E NT. & T ECH. L. at
239 (“[I]f a work does not evince sufficient original ex-
pression to be copyrightable, the work should belong
in a category other than ‘visual art’ as this term is con-
templated under VARA.”).
  That point aside, the district court’s conclusion misun-
derstands the originality requirement. Originality is “the
touchstone of copyright protection today,” an implicit
constitutional and explicit statutory requirement. Feist
Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 347, 346
(1991) (“Originality is a constitutional requirement.”); id.
at 355 (The Copyright Act of 1976 made the originality
requirement explicit.); see also Schrock, 586 F.3d at 518-19
(“As a constitutional and statutory matter, ‘[t]he sine qua
non of copyright is originality.’ ” (quoting Feist, 499 U.S. at
345)). Despite its centrality in our copyright regime, the
threshold for originality is minimal. See Feist, 499 U.S. at
345; Am. Dental Ass’n v. Delta Dental Plans Ass’n, 126
F.3d 977, 979 (7th Cir. 1997) (“The necessary degree of
‘originality’ is low . . . .”). The standard requires “only that
the work was independently created by the author (as
opposed to copied from other works), and that it
possesses at least some minimal degree of creativity.”
Feist, 499 U.S. at 345 (citation omitted). The “requisite
level of creativity is extremely low; even a slight amount
will suffice. The vast majority of works make the grade
28                                    Nos. 08-3701 & 08-3712

quite easily, as they possess some creative spark.” Id.
(citation omitted).
   The district court took the position that Wildflower
Works was not original because Kelley was not “the first
person to ever conceive of and express an arrangement
of growing wildflowers in ellipse-shaped enclosed
area[s].” Kelley, 2008 WL 4449886, at *6. This mistakenly
equates originality with novelty; the law is clear that a
work can be original even if it is not novel. Feist, 499 U.S.
at 345 (“Originality does not signify novelty; a work
may be original even though it closely resembles
other works so long as the similarity is fortuitous, not
the result of copying.”). No one argues that Wildflower
Works was copied; it plainly possesses more than a
little creative spark.
  The judge was also at a loss to discover “what about
the exhibit is original. Is it the elliptical design? The size?
The use of native instead of non-native plants?
The environmentally-sustainable gardening method to
which ‘vegetative management system’ apparently
refers?” Kelley, 2008 WL 4449886, at *6. It is true that
common geometric shapes cannot be copyrighted. See U.S.
C OPYRIGHT O FFICE, C OMPENDIUM II: C OPYRIGHT O FFICE
P RACTICES § 503.02(a)-(b) (1984); 2 P ATRY § 4:17 (2010). And
“[i]n no case does copyright protection for an original
work of authorship extend to any idea, procedure,
process, system, method of operation, concept, principle,
or discovery, regardless of the form in which it is de-
scribed, explained, illustrated, or embodied in such a
work.” 17 U.S.C. § 102(b).
Nos. 08-3701 & 08-3712                                      29

   The Park District suggests that Wildflower Works is
an uncopyrightable “method” or “system,” and is also
ineligible because its design uses simple elliptical
shapes. The first of these arguments is not well-deve-
loped; the second is misplaced. Although Wildflower
Works was designed to be largely self-sustaining (at least
initially), it’s not really a “method” or “system” at all.
It’s a garden. And Kelley is seeking statutory protec-
tion for the garden itself, not any supposed “system”
of vegetative management encompassed within it. Re-
garding the use of elliptical shapes, an author’s expressive
combination or arrangement of otherwise noncopy-
rightable elements (like geometric shapes) may satisfy
the originality requirement. Roulo v. Russ Berrie & Co., 886
F.2d 931, 939 (7th Cir. 1989); 2 P ATRY § 4:17 (Geometric
shapes or symbols cannot themselves be protected, but
an original creative arrangement of them can be.).
  The real impediment to copyright here is not that
Wildflower Works fails the test for originality (under-
stood as “not copied” and “possessing some creativity”)
but that a living garden lacks the kind of authorship
and stable fixation normally required to support copy-
right. Unlike originality, authorship and fixation are
explicit constitutional requirements; the Copyright Clause
empowers Congress to secure for “authors” exclusive
rights in their “writings.” U.S. C ONST. art 1, § 8, cl. 8; see
also 2 P ATRY § 3:20 (2010) (“[T]he Constitution uses the
terms ‘writings’ and ‘authors;’ ‘originality’ is not used.”);
id. § 3:22 (2010); 1 N IMMER § 2.03[A]-[B] (2004). The origi-
nality requirement is implicit in these express limitations
on the congressional copyright power. See Feist, 499 U.S. at
30                                   Nos. 08-3701 & 08-3712

346 (The constitutional reference to “authors” and “writ-
ings” “presuppose[s] a degree of originality.”). The Su-
preme Court has “repeatedly construed all three terms
in relation to one another [or] perhaps has collapsed
them into a single concept“; therefore, “[w]ritings are
what authors create, but for one to be an author, the
writing has to be original.” 2 P ATRY § 3:20.
  “Without fixation,” moreover, “there cannot be a ‘writ-
ing.’ ” Id. § 3:22. The Nimmer treatise elaborates:
     Fixation in tangible form is not merely a statutory
     condition to copyright. It is also a constitutional
     necessity. That is, unless a work is reduced to
     tangible form it cannot be regarded as a “writing”
     within the meaning of the constitutional clause autho-
     rizing federal copyright legislation. Thus, certain
     works of conceptual art stand outside of copyright
     protection.
1 N IMMER § 2.03[B]. A work is “fixed” in a tangible
medium of expression “when its embodiment in a copy
or phonorecord . . . is sufficiently permanent or stable
to permit it to be perceived, reproduced, or otherwise
communicated for a period of more than transitory dura-
tion.” 17 U.S.C. § 101. As William Patry explains:
     Fixation serves two basic roles: (1) easing problems
     of proof of creation and infringement, and (2) pro-
     viding the dividing line between state common
     law protection and protection under the federal Copy-
     right Act, since works that are not fixed are ineligible
     for federal protection but may be protected under
     state law. The distinction between the intangible
Nos. 08-3701 & 08-3712                                  31

   intellectual property (the work of authorship) and its
   fixation in a tangible medium of expression (the
   copy) is an old and fundamental and important one.
   The distinction may be understood by examples of
   multiple fixations of the same work: A musical compo-
   sition may be embodied in sheet music, on an audio-
   tape, on a compact disc, on a computer hard drive
   or server, or as part of a motion picture soundtrack.
   In each of the fixations, the intangible property
   remains a musical composition.
2 P ATRY § 3:22 (internal quotation marks omitted).
  Finally, “authorship is an entirely human endeavor.” Id.
§ 3:19 (2010). Authors of copyrightable works must be
human; works owing their form to the forces of nature
cannot be copyrighted. Id. § 3:19 n.1; see also U.S. C OPY-
RIGHT O FFICE, C OMPENDIUM II: C OPYRIGHT O FFICE P RAC -
TICES § 503.03(a) (“[A] work must be the product of
human authorship” and not the forces of nature.) (1984);
id. § 202.02(b).
  Recognizing copyright in Wildflower Works presses
too hard on these basic principles. We fully accept that
the artistic community might classify Kelley’s garden as
a work of postmodern conceptual art. We acknowledge
as well that copyright’s prerequisites of authorship and
fixation are broadly defined. But the law must have
some limits; not all conceptual art may be copyrighted. In
the ordinary copyright case, authorship and fixation are
not contested; most works presented for copyright are
unambiguously authored and unambiguously fixed. But
this is not an ordinary case. A living garden like Wild-
32                                    Nos. 08-3701 & 08-3712

flower Works is neither “authored” nor “fixed” in the
senses required for copyright. See Toney v. L’Oreal USA,
Inc., 406 F.3d 905, 910 (7th Cir. 2005) (“A person’s
likeness—her persona—is not authored and it is not
fixed.”); see also Cronin, Dead on the Vine, 12 V AND. J. E NT.
& T ECH. L. at 227-39.
  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, tex-
tures, 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 back-
yard gardener—determines the initial arrangement of
the plants in a garden. This is not the kind of author-
ship 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
Nos. 08-3701 & 08-3712                                   33

copy,” at what point has fixation occurred? When the
garden is newly planted? When its first blossoms ap-
pear? 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 gar-
dener’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 germi-
nate, 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.
  We are not suggesting that copyright attaches only to
works that are static or fully permanent (no medium of
expression lasts forever), or that artists who incorporate
natural or living elements in their work can never claim
copyright. Kelley compares Wildflower Works to the
34                                     Nos. 08-3701 & 08-3712

Crown Fountain, a sculpture by Spanish artist Jaume
Plensa that sits nearby in Chicago’s Millenium Park. The
surfaces of Plensa’s fountain are embedded with LED
screens that replay recorded video images of the
faces of 1,000 Chicagoans. See http://www. explorechicago.
org/c it y/e n /t h in gs _ s e e _ d o/attractions/dca_tourism /
Crown_ Fountain.html (last visited Feb. 10, 2011). But the
Copyright Act specifically contemplates works that
incorporate or consist of sounds or images that are broad-
cast or transmitted electronically, such as telecasts of
sporting events or other live performances, video games,
and the like. See 17 U.S.C. § 101 (defining “fixed” as
including a “work consisting of sounds, images, or both,
that are being transmitted . . . if a fixation of the work is
being made simultaneously with its transmission”); see
also Balt. Orioles, Inc. v. Major League Baseball Players Ass’n,
805 F.2d 663, 675 (7th Cir. 1986); Midway Mfg. Co. v. Artic
Int’l, Inc., 704 F.2d 1009, 1013-14 (7th Cir. 1983). Wild-
flower Works does not fit in this category; the Crown
Fountain is not analogous.
  Though not addressing the requirement of fixation
directly, the district court compared Wildflower Works to
“[t]he mobiles of Alexander Calder” and “Jeff Koons’
‘Puppy,’ a 43-foot flowering topiary.” Kelley, 2008 WL
4449886, at *4. These analogies are also inapt. Although
the aesthetic effect of a Calder mobile is attributable in
part to its subtle movement in response to air currents,
see http://en.wikipedia.org/wiki/Alexander_Calder (last
visited Feb. 10, 2011), the mobile itself is obviously fixed
and stable. In “Puppy” the artist assembled a huge metal
frame in the shape of a puppy and covered it with thou-
Nos. 08-3701 & 08-3712                                   35

sands of blooming flowers sustained by an irrigation
system within the frame. See http://en.wikipedia.org/
wiki/Jeff_Koons (last visited Feb. 10, 2011). This may be
sufficient fixation for copyright (we venture no opinion
on the question), but Wildflower Works is quite differ-
ent. It is quintessentially a garden; “Puppy” is not.
  In short, Wildflower Works presents serious problems
of authorship and fixation that these and other examples
of conceptual or kinetic art do not. Because Kelley’s
garden is neither “authored” nor “fixed” in the senses
required for basic copyright, it cannot qualify for moral-
rights protection under VARA.


  5.   Site-specific art, and the public-presentation and
       building exceptions
  This case also raises some important questions about
the application of VARA to site-specific art, as well as
the statute’s public-presentation and building excep-
tions. Though we need not decide these questions, we do
have a few words of caution about the district court’s
treatment of the issue of VARA and site-specific art. The
court classified Wildflower Works as a form of site-
specific art; we see no reason to upset this factual find-
ing. The court then adopted the First Circuit’s holding
in Phillips that site-specific art is categorically excluded
from VARA. This legal conclusion is open to question.
  Phillips involved a VARA claim brought by artist David
Phillips in a dispute over a display of 27 of his sculptures
in Boston’s Eastport Park across from Boston Harbor.
36                                   Nos. 08-3701 & 08-3712

Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128, 130 (1st
Cir. 2006). A planned redesign of the park called for
the removal and relocation of Phillips’s sculptures; he
sought an injunction under VARA, claiming the removal
of his sculptures would violate his right of integrity. Id.
at 131. The district court held that although the
sculptures qualified as a single integrated work of visual
art, park administrators were entitled to remove
them under VARA’s public-presentation exception. Id. at
138-39. The First Circuit affirmed on alternative grounds,
holding that VARA does not apply to any site-specific art.
  The court based this holding on a perceived irreconcil-
able tension between the public-presentation exception
and the purpose of site-specific art: “By definition,
site-specific art integrates its location as one of its ele-
ments. Therefore, the removal of a site-specific work
from its location necessarily destroys that work of art.”
Id. at 140. Under the public-presentation exception, a
modification of a work of visual art stemming from
a change in its “public presentation, including lighting
or placement,” is not actionable unless it is caused by
gross negligence. If VARA applied to site-specific art,
the First Circuit reasoned, then the statute would “pur-
port[] to protect site-specific art” but also “permit its
destruction by the application” of the public-presentation
exception. Id. The court held that “VARA does not pro-
tect site-specific art and then permit its destruction by
removal from its site pursuant to the statute’s public
presentation exception. VARA does not apply to
site-specific art at all.” Id. at 143.
Nos. 08-3701 & 08-3712                                   37

  There are a couple of reasons to question this interpreta-
tion of VARA. First, the term “site-specific art” appears
nowhere in the statute. Nothing in the definition of a
“work of visual art” either explicitly or by implication
excludes this form of art from moral-rights protection.
Nor does application of the public-presentation excep-
tion operate to eliminate every type of protection VARA
grants to creators of site-specific art; the exception
simply narrows the scope of the statute’s protection
for all qualifying works of visual art. The exception
basically provides a safe harbor for ordinary changes in
the public presentation of VARA-qualifying artworks;
the artist has no cause of action unless through gross
negligence the work is modified, distorted, or destroyed
in the process of changing its public presentation.
  Second, Phillips’s all-or-nothing approach to site-
specific art may be unwarranted. Site-specific art is not
necessarily destroyed if moved; modified, yes, but not
always utterly destroyed. Moreover, some of VARA’s
protections are unaffected by the public-presentation
exception. An artist’s right of integrity can be violated
in ways that do not implicate the work’s location or
manner of public presentation; site-specific art—like
any other type of art—can be defaced and damaged in
ways that do not relate to its public display. And the
public-presentation exception does nothing to limit the
right of attribution, which prevents an artist’s name
from being misappropriated.
  Then there is the matter of the building exception, which
applies to works “incorporated in or made part of a
building in such a way that removing the work from
38                                    Nos. 08-3701 & 08-3712

the building will cause the destruction, distortion, mutila-
tion, or other modification of the work.” 17 U.S.C.
§ 113(d)(1)(A). These works do not get moral-rights
protection if the artist: (1) consented to the installation
of his work in the building (if pre-VARA); or (2) executed
a written acknowledgment that removal of the work
may subject it to destruction, distortion, mutilation, or
modification (if post-VARA). Id. § 113(d)(1)(B). On its
face this exception covers a particular kind of site-
specific art. Its presence in the statute suggests that site-
specific art is not categorically excluded from VARA.8
  These observations are of course general and not
dispositive. Because we are resolving the VARA claim on
other grounds, we need not decide whether VARA is
inapplicable to site-specific art.


B. The Park District’s Cross-Appeal on the Contract
   Claim
  The Park District challenges the judgment against it
for breach of contract even though damages were
assessed at a nominal $1. The district court held that
Commissioner Burroughs’s casual remark—“You’re still


8
   The Park District argued that the building exception
applied to Wildflower Works because the garden is located on
top of the Monroe Street parking garage and accommodates
the air vents that provide ventilation to the garage below. This
strikes us as something of a reach. Wildflower Works is not
“incorporated into” or “made part of” the parking garage; it
is situated on top of it.
Nos. 08-3701 & 08-3712                                    39

there, aren’t you? That’s all you need to do.”—created
an implied-in-fact contract requiring the Park District
to give Kelley reasonable notice before reconfiguring
Wildflower Works. Although factual findings about the
existence of a contract are reviewed for clear error,
ReMapp Int’l Corp. v. Comfort Keyboard Co., 560 F.3d 628, 633
(7th Cir. 2009), there is a threshold legal question here
about the commissioner’s unilateral authority to bind the
Park District to a contract. Our review is de novo. See
Manning v. United States, 546 F.3d 430, 432 (7th Cir. 2008).
  Two statutes guide our analysis. The first is the Chicago
Park District Act, which provides in relevant part that
“[t]he commissioners of [the Park District] constitute the
corporate authorities thereof, and have full power to
manage and control all the officers and property of the
district, and all parks, driveways, boulevards and park-
ways maintained by such district or committed to its
care and custody.” 70 ILL. C OMP. S TAT. 1505/7.01. The
district court noted the statute’s use of the plural “com-
missioners” and “authorities” and concluded from this
that each individual commissioner was a separate corpo-
rate “authority” with the power to unilaterally bind
the Park District.
  This conclusion strains the statutory language and
ignores how public bodies customarily operate. It also
contradicts another provision in the Illinois Park District
Code, which applies to all Illinois park districts and
must be read in conjunction with the Chicago Park
District Act. The Illinois Park District Code states:
    No member of the board of any park district . . . shall
    have power to create any debt, obligation, claim or
40                                    Nos. 08-3701 & 08-3712

     liability, for or on account of said park district . . .
     except with the express authority of said board conferred
     at a meeting thereof and duly recorded in a record of
     its proceedings.
70 ILL. C OMP. S TAT. 1205/4-6 (emphasis added). When
read together, these statutes confirm that there is only
one corporate authority of the Chicago Park District—
its Board of Commissioners—and that individual com-
missioners cannot unilaterally bind the Park District’s
Board to a contract without express Board approval.
  There is no evidence that the Park District’s Board of
Commissioners authorized Commissioner Burroughs to
enter into a contract with Kelley. Moreover, Illinois
law provides that ultra vires contracts entered into by
municipal corporations are invalid, see, e.g., McMahon v.
City of Chicago, 789 N.E.2d 347, 350 (Ill. App. Ct. 2003), so
Commissioner Burroughs’s offhand remark cannot have
created a valid implied-in-fact contract. The judgment
for Kelley on the contract claim was premised on legal
error; the Park District was entitled to judgment on
this claim.
  For the foregoing reasons, we A FFIRM the judgment
in favor of the Park District on the VARA claim; we
R EVERSE the judgment in favor of Kelley on the contract
claim and R EMAND with instructions to enter judgment
for the Park District.




                            2-15-11