What is Art? - Southwestern Law School

130 J. INT’L MEDIA &ENTERTAINMENT LAW VOL. 4,NO. 2rity would be damaged by their removal from a specific site—wereoutside the scope of moral rights protection. 85 Kelley did achieve apyrrhic victory when the court ruled on a separate contractual claimthat the park authority should have given him at least 90 days noticeof its intention to remove half of his work—but awarded him nominaldamages of only $1. Kelley appealed against the court’s rulingsagainst him, particularly that his work failed to satisfy the legal ‘originality’test.In 2011 the appeal court 86 reversed the initial court’s judgmentabout the classification of the work under copyright legislation, decidingthat an artwork “must actually be a painting or sculpture. Not metaphoricallyor by analogy, but really . . . Authors of copyrightableworks must be human; works owing their form to the forces of naturecannot be copyrighted . . . and are not authored or fixed.” 87 Fixation isa further requirement of copyright laws in many jurisdictions beyond,and including, the US, namely: that an original work must be recordedor fixed in a stable material form—not be transient or ephemeral—soas to be capable of being copied in some material form, and thus qualifyfor copyright protection. The appeal court ruled that “the law musthave some limits; not all conceptual art may be copyrighted”; and thatChicago Wildflower Works was created more by nature than by itsconceiver/planner, and comprised “inherently changeable organisms”. 88However, the appeal succeeded on two key issues: that the trialjudge was wrong to hold that the work failed the copyright originalitytest; and that artists’ statutory moral rights did not apply to site-specificworks, in particular that “an all-or-nothing approach to site-specific artmaybeunwarranted...site-specificart...likeanyothertypeofart...can be defaced or damaged.” 89 That latter decision has been hailed as animportant judgment by artists’ rights campaigners who had, since 2006,sought to reverse the so-called Phillips rule 90 denying artists’ statutorymoral rights to their site-specific artworks. At the same time, the appealcourt’s judgment took a narrower and more traditional view of what85. Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128 (1st Cir. 2006).86. Kelley v. Chicago Park Dist., 635 F.3d 290 (7th Cir. 2011), cert. denied, 132S.Ct. 380 (2011).87. This ruling was made by the appeal court of its own motion, not followingarguments advanced by the parties in the appeal.88. The appeal also failed on the contract claim: the court held that the ChicagoPark District official who had informally allowed Kelley to continue use the parkland (after his formal permit had expired) had no legal capacity or authority to do so.89. Kelley v. Chicago Park Dist., 635 F.3d 290 (7th Cir. 2011), cert. denied, 132S.Ct. 380 (2011).90. Phillips, 459 F.3d at 143.