What is Art? - Southwestern Law School

WHAT IS ART? 129First tried in 2007/8, 82 the heart of the case lay in the question ofwhether Kelley’s work was an artwork entitled to protection underVARA or whether it was merely landscaped public parkland—andtherefore not entitled to such protection. VARA only gives artistsmoral rights over certain forms of art, specified in the US CopyrightAct 1976. The initial trial judge expressed sympathy for, and understandingof, the development in the late 20th century of radicallynew art practices and forms, commenting: “There is a tension betweenthe law and the evolution of ideas in modern or avant-garde art; theformer requires legislatures to [classify] artistic creations, whereasthe latter is occupied with expanding the definition of what we acceptto be art. While Andy Warhol’s suggestion that ‘art is whatever youcan get away with’ is too nihilistic for the law to accommodate, neithershould [moral rights laws] be read so narrowly as to protectonly the most revered work of the Old Masters. In other words, the‘plain and ordinary’ meanings of words describing modern art arestill slippery.” 83 And so the court ruled that Kelley’s work was inlaw a sculpture, or three-dimensional artwork; and also a paintingthat “corralled the variegation of wildflowers in bloom into pleasingoval swatches”. Kelley was rightly pleased with this enlightened initialjudgment, commenting: “This ruling redefines legally what can be fineart, what it can be made of, and that artists themselves make thesedecisions.”However, not all artworks are entitled to copyright and thereforemoral rights protection; only those that pass the legal ‘originality’test required by copyright law (of most countries, including the US),which courts determine in each case. In Kelley’s case the trial courtexpressed difficulty in understanding what was original about hiswork because he was not “the first person to ever conceive of and expressan arrangement of growing wildflowers in [an] ellipse-shapedenclosed area”. 84 The judge further ruled that Kelley’s work was‘site-specific’ and, as such, would not be entitled to moral rights protection(even if it had passed the legal ‘originality test’) because UScase law had decided in 2006 that site-specific artworks—whose integ-States introduced statutory moral rights into federal law through VARA, following theU.S. government’s joining the Berne Convention in 1989. VARA amends the federalCopyright Act 1976 by inserting moral rights of paternity and integrity, but only forliving visual (not other creative) artists.82. Kelley v. Chicago Park District, No. 04 C 07715, 2008 WL 4449886 (N.D. Ill.,Sept. 29, 2008), aff’d in part, rev’d in part, 635 F.3d 290 (7th Cir. 2011).83. Id. at6.84. Id.