Can a Garden Be Copyrighted?
By Staff News & Analysis - February 18, 2011

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

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

Free-Market Analysis: We thought we would return for another look at copyright since it is such a controversial subject and received a good deal of feedback yesterday. The article we want to comment on is certainly controversial as well. We can see from the above excerpt that the concept of intellectual property really has no boundaries at this point – certainly not in America. IP is basically whatever courts decide it is.

But really, once you have gone down this slippery slope (for a libertarian anyway), what constitutes IP? Is it a garden, as mentioned above? It is possible, for instance, that an artist could copyright a house or some other such standalone object – or certainly the walls on which a picture had been painted. That would mean presumably that the former artist-owner could demand some sort of payment from later owners as regards a variety of circumstances. Does such an idea sound strange? What about this law passed by the Australian government back in 2006:

Australian Govt enacts bizarre copyright law … The Australian Government has finally enacted fair use amendments to the copyright act, but in a bizarre and unexpected twist, recordings can only be watched once, after which they must be destroyed. The Australian Goverment has finally enacted "fair use" amendments to the copyright act, but in a bizarre and unexpected twist, recordings can only be watched once, after which they must be destroyed. Sure, you'll no longer be a criminal every time you hit the record button on your VCR (or PVR), but if you want to watch a TV program twice, it's a criminal record for you, baby. (-APC)

What was once simple grows complex; a state of affairs enhanced by the legal profession. And this is the kind of law that is created out of misapplied initial assumptions in our view. As we pointed out in yesterday's article, Why not let the market itself decide? This is in line with the larger anarcho-libertarian perspective that the best government is the one that governs least, or even not at all. It certainly was not Ludwig von Mises point of view as discussed in yesterday's feedback thread. Mises seems to have believed that copyright and patents were necessary to compensate an author or inventor for his time and effort. Without the ability to gain appropriately from creativity, Mises worried that creativity would dwindle as would inventions.

In the feedback thread, we called this view "naïve" – in contrast to Mises' many superb insights about human action, etc. – because it seems to us that there are plenty of incentives for people to create, and that people will do so regardless. A successful invention or work of art opens up many doors. People can teach, endorse products, tour and gain appearance fees. In fact, many modern musicians do not gain much from copyright and royalties but make most of their money from appearances in any case. The IP argument seems to be one where real-life outstrips rhetoric.

Another issue is whether a lack of codified IP ground-rules would have a negative effect on partnership between large, corporate entities. Perhaps so – and so what? We don't believe in large corporate entities anyway. We are involved in a hypothetical free-market discussion here, and absent legal decisions, corporations themselves would not exist anymore than copyright law.

In lieu of corporations (as we have suggested) would be smaller groups of entities, family partnerships and the like. These groups would be far more responsive to the community, being of it; and we would tend to believe as well that a lack of a "legal" IP foundation would not have a great deal of impact when it came to what ventures such entities would pursue. In fact, we would propose that patent law itself does not correlate directly to societal innovation which is disparate and uneven. Was America's industrial revolution the result of patent law? Or Britain? Obviously cultural and sociopolitical factors play a part – else why do some industrial countries (with similar patent laws) do better than others?

We would have to conclude that patent law is not necessarily a fundamental instigator of human creativity. We also believe the Misesian stance is naïve (theoretically anyway) because once the state becomes the arbiter of what creativity is and how it can be compensated, there is no end to the mischief that can and will be done. The "garden" that artist Chapman Kelley started working on the garden in 1984 wasn't kept up properly, which is why the city stepped in; but thanks to an IP law, a simple matter of remedial gardening turned into a court battle.

Thus it was, eventually, that Kelley charged the city had violated his "right of integrity" under the Visual Artists Rights Act (VARA) of 1990 and claimed the city should have given him "reasonable notice" before making changes to his composition. Initially he won his lawsuit and was awarded a dollar in compensation, much less than the US$25 million he'd sought. But now even that decision – and its award – has been reversed.

The current court made the determination that Kelley was not due damages based on what might be considered an arbitrary judgment. It ruled that though the garden might be considered conceptual art, it was not eligible for copyright because it was not a written work or a "work of visual art" such as a "painting, drawing, print, or sculpture," or an exhibition photograph.

It turns out that under VARA a protected work must actually BE a painting, photograph or a sculpture. Additionally, Wildflower Works – as a garden – lacks the stability that may be necessary to invoke VARA. Of course, we would think it a valid question to ask why copyright extends only so far and no farther. Why couldn't a brilliant house like Falling Water be copyrighted? Or an individually designed car? Or even, to take matters further, a special meal? Or a genetically modified animal? Or a breed of dog? The possibilities are endless in the increasingly elaborate funhouse of "ownership" that the legal profession is devising for society at large.

After Thoughts

We come back to the conclusion we stated yesterday. Ownership ought to be a matter of what can negotiated, contractually obligated and enforced – but privately, on a case by case basis, not via the state. If people want to make elaborate statements about ownership, there is nothing in the free-market to stop them save natural law. Let people spend their own money to back up their notions about ownership. Let people enforce such notions without the court system (and the force of the state) as best they can. Copyright would soon be rationalized by natural law. And it should be in our opinion.

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