The Visual Artists Rights Act of 1990
The Visual Artists Rights Act of 1990 or VARA was drafted by US Senator the late Ted Kennedy and was jointly shepherded into passage in the U.S. Congress in 1990 by U.S. Representative Robert Kastenmeier of Wisconsin. On June 5, 1990, he said "(The Act) recognizes that visual art plays an important role in our cultural life, and that artists who have put their hearts and soul into their creation deserve protection for their efforts."
VARA grants artists the right of attribution and the right of integrity. The right of attribution concerns the artist's right to claim authorship of a work created by the artist and to deny authorship of a work not of the artist. The right of integrity concerns the artist's right to prevent or to recover damages for the intentional distortion, mutiliation, modification or destruction of the artist's work.
Chicago Wildflower Works as Public Art
The Chicago Wildflower Works was a painting and sculpture of native flowers, gravel, and steel Kelley had created, with the approval and agreement of the Chicago Park District. A non-commissioned piece, Kelley financed installation of the sculpture, and under his direction it was tended by volunteers for over two decades. He is widely recognized for this artistic effort, including by such institutions as the Graduate School of Design at Harvard University; Museum of Fine Arts, Boston; The Schools of Art and Architecture, Yale University; the Pennsylvania Academy of Fine Arts; and the School of the Art Institute of Chicago, among others. The Chicago Wildflower Works was located on 68,000 square feet in Chicago's lakeside Grant Park.
Chapman Kelley Vs. Chicago Park District ( 1988 & 2004 lawsuits )
The trial over the destruction of the Chicago Wildflower Works ended on September 26, 2007 in the Federal Courtroom - 1419 - of David H. Coar, U.S. District Judge, Northern District of Illinois, Dirksen Federal Courthouse, 219 South Dearborn Street, Chicago 60604.
In a preliminary ruling made on September 26, 2007, Judge Coar issued a minute order finding that the Wildflower Works was a work of art covered by VARA.
On September 30, 2008, Judge Coar issued a final ruling. He found in favor of the Chicago Park District on Counts I and II for violations of the Visual Artists Rights Act. Count IV went to Kelley's favor, breach of contract for which Kelley will receive nominal damages of one dollar. Count III was dismissed separately by the Court.
The trial is significant for artists who create art using non-traditional materials. It makes, for the first time, such art recognizable by the legal community as fine art. Although Judge Coar found the Wildflower Works to be both painting and sculpture, he considered it to be unoriginal, and therefore not copyrightable. Citing the 1st Circuit in Phillips Vs. Pembroke Real Estate Inc. 2006 ruling, Coar deemed Wildflower Works was site-specific. The art in VARA cases which are considered to be site-specific are not offered protection under VARA. Site-specificity applies to artwork that cannot be moved without changing the integrity of such work.
On April 13, 2009, lead attorney the late Alex L. Karan, Micah E. Marcus and Hector C. Bove of the international law firm Kirkland & Ellis LLP filed an Opening Brief for Plaintiff-Appellant Chapman Kelley in the 7th Circuit, Chicago. A portion of the argument states that the 1st Circuit 2006 ruling in Phillips Vs. Pembroke Real Estate, Inc. was fatally flawed. This position challenges the 1st Circuit's decision and is significant for artists across the USA. Challenges to the District Court's September 29, 2008 decision on the Wildflower Works copyrightability is included as is the issue of damages to Kelley's reputation.
On June 13, 2009, a Response and Reply brief was filed for Plaintiff Chapman Kelley.
Oral arguments were made on September 10, 2009. (Audiotape loads in 30 seconds or less.) To listen click here.
Manuscript transcript of oral argument, September 10, 2009, to read click here
An appeals court decision is imminent!
Grassroots Public Protests, Bibliography, Broadcast Media Interviews, Panel Discussion, Artists' Rights Lecture
July 7, 2010 - WRR 101.1 FM, Dallas/Ft. Worth, Classic Cafe, (live broadcast) with Tempie Lindsey
June 19, 2010 - Texas Wesleyan University, College of Law - Intellectual Property, Legal Issues Faced by Galleries, Museums and Artists, Second Annual Colloquium
June 1, 2010 - Clancco.com, Law students crazy over Viaual Artists Rights Act, accessed June 2, 2010
March 25, 2010 - Radio Nederland Wereldomroep (Radio Netherlands Worldwide), Earth Beat, with Marnie Chesterton. Listen to the conversation online here
February 10, 2010 - Land Lies Fallow blog, Nottingham, UK, Chapman Kelley - Wildflower Artist accessed February 11, 2010
2009 - Virginia Cascio, Hardly a Walk in the Park: Courts’ Hostile Treatment of Site-Specific Works under VARA, 20 DEPAUL J. ART, TECH. & INTELL. PROP. L. 167 (2009) abstract accessed April 15, 2010
Dec. 7, 2009 - Public Art Network, an arm of Americans for the Arts, (repost of Deanna Isaacs Dec. 3, 2009 article) Chapman Kelley's Mutilated Garden posted by Peggy Kendellen, accessed on February 14, 2010
Dec. 3, 2009 - Chicago Reader, The Business, Chapman Kelley's Mutilated Garden by Deanna Isaacs, page 10
November 2009 - Art Monthly (London), Art Law, "Moral Rights: Chapman Kelley v Chicago Park District", by Henry Lydiate, p. 37, read it here
November 2009 - State Bar of Michigan, Ipls Proceedings, "Copyright as the Stealth Issue in Real Estate and Urban Renewal", by Danielle Gaier, page 8-9, illustration page 11
Aug. 24, 2009 - NCAC.org (National Coalition Against Censorship), "Kelley Vs. Chicago Park District", accessed on Aug. 24, 2009, read it here
June 19, 2009 - Clancco.com "Chapman Kelley files Response & Reply brief", acccessed June 23,2009, read it here
June 17, 2009 - RSA Arts & Ecology (Royal Society for the encouragement of the Arts, Manufactures and Commerce) blog, "City digs up wildflowers: artist sues", by William Shaw, accessed June 17, 2009, read it here
June 5, 2009 - CLANCO.com "Chapman Kelley: My Art is Original", acccessed June 5,2009, read it here
June 4, 2009 - Los Angeles Times, Arts - Living, Culture Monster by Lisa Fung
June, 2009 - The Art Newspaper "Artist Chapman Kelley launches federal appeal over Chicago Wildflower work", by Martha Lufkin, accessed June 5, 2009, read the article here
May 27, 2009 - The Art + Law + Blog at artlawteam.com "The Price for Planting", by attorney John-Paul Benitez, accessed May 26, 2009, read it here
May 12, 2009 - The Art Law Blog "This case has profound implications for artists", by Donn Zaretsky, accessed May 12, 2009, read the blog here
May 2009 - Rights &Reproductions Information Network Community Portal wiki viewable here
Mar. 2009 - March Law Review, "Copyright Claim for Park Wildflower Display," by James C. Kozlowski J.D. Ph.D, read the pdf file here
Mar. 2009 - Health & Tourism Court Reports, George Mason University School of Recreation, by James C. Kozlowski J.D. Ph.D.
Mar. 2009 - Parks & Recreation Magazine, National Recreation and Park Association, Law Review, "Seeds of
Disagreement," by James C. Kozlowski J.D. Ph.D.
2009 - Charles Cronin. 2009. "DEAD ON THE VINE: LIVING AND CONCEPTUAL ART AND VARA" ExpressO, available here
Winter 2008 - "Artists and Moral Rights: Do You Have Any?", Vol.1, Issue 1, Maryland Lawyers for the Arts, by Cynthia Blake Sanders, Volunteer Lawyer, read the article here
Nov. 2008 - The Art Newspaper, "Judge overturns artist's rights ruling" Page 8, by Martha Lufkin
Oct, 6, 2008 - Chicago IP Litigation blog, "Famous Grant Park Wildflower Works both Sculpture and Painting but Not Protected by Copyright or VARA." by R. David Donoghue view it here
Oct. 3, 2008 - Chicago Sun Times, "Artist was right to stand up for free speech", Letters to the editor, Page 28, by John Viramontes
Oct. 1, 2008 - The Art Law Blog "Ugh", by Donn Zaretsky, accessed Nov. 21, 2008, read blog here
Oct.1, 2008 - NBC5 website "Artist awarded $1 for lost work", accessed Nov. 21, 2008 read entire article here
Oct. 1, 2008 - Chicago Sun Times, "Flower power, to a point," Page 9, by Andrew Herrmann
June 13, 2008 - Chicago Tribune, "When will the Park District learn" Voice of the People, Editorial page, by John Viramontes, read the letter here
Dec. 2007 - Chicago Artists' News, "Travails and Triumphs: The Visual Artists Rights Act", Page 6, by Daniel Grant, read the article here
Nov. 22, 2007 - Chicago Reader, The Business, "Restored or Wrecked?" by Deanna Isaacs. Read the article here
Nov. 2007 - The Art Newspaper, "Fields of flowers destroyed by City of Chicago was a sculpture, says judge", Page 7, by Martha Lufkin
Nov. 7, 2007 - f news magazine, "Art Vs.The Parks Department", by Katherine Pill, read it here
Oct. 21, 2007 - Chicago Tribune, "Artist fights to hide a work", by Ameet Sachdev, read it here
Oct. 14, 2007 - Chicago Tribune, "Wildflowers wrecked by city's arrogance", Voice of the People, Editorial page, Page 6, by V.A. Smith, Chicago, IL
Oct. 8, 2007 - ArtsJournal blog, "Protecting the Landscape", by Douglas McLennan. Read the blog here
Oct. 7, 2007 Oct. 7, 2007 - Chicago Tribune, "Weedy Masterpiece", Editorial page, read it here
Oct. 5, 2007 - Skyline-Chicago, "Wildflowers were 'art'", by Anne Gerber
Oct. 4, 2007 - Chicago Reader, "A Garden Can Be Art", by Deanna Isaacs, (scroll to bottom of web page) read it here
Oct. 2, 2007 Edward Winkleman blog, "VARA Controversy in the Heartland Settled: Verdict to the Artist", accessed Nov. 21, 2008, read blog here
Oct. 1, 2007 - Chicago Sun Times, "Cheers for artist", Page 34, in Talkback at SunTimes.com
Sept. 29, 2007 - Slate Magazine, "Wildflower Artist Wins VARA Prelim Decision in Federal Court", read the article here
Sept. 28, 2007 - NBC5-affiliate Telemundo, Chapman Kelley interviewed by Ms. Leda Santodomingo, Chicago, IL
Sept. 27, 2007 CBS2 Chicago "Artist May Be Paid For Cut Flowers In Grant Park", from the Chicago Sun Times News Group Wire 2006. Read the complete article here
Sept. 27, 2007 - Chicago Sun Times, "Judge: Garden was art", Page 8, by Andrew Herrmann
Sept. 25, 2007 - Chicago Public Radio - WBEZ 91.5 FM, "Legal Questions Bloom Around Chicago Garden", interviewed by Robert Wildeboer, listen here
Sept. 24, 2007 - Chicago Sun Times, "Art or Weeds?", Page 6, by Andrew Herrmann
Sept. 14, 2007 U.S. Northern District Court 18-page instructions from the Court
Nov. 18, 2006 - Visual Artists Rights Act lecture with Dallas, Texas Esq. Frank P. Hernandez, presented by the Council for Artists' Rights, at HotHouse, Chicago, IL
July 10, 2006 - Chicago Public Radio - WBEZ 91.5 FM, "Artist Sues City over Wildflowers", interviewed by Jenny Lawton, listen here
(date to follow) NBC5-affiliate Telemundo, Chapman Kelley interviewed by Ms. Leda Santodomingo, Chicago, IL
June 16, 2006 - Chicago Reader, "Is Gardening Art?", Page 2, by Deanna Isaacs, read it here
June 10-11, 2006 - "Public Art Under Attack", 2nd annual grassroots public protest: Outrage Against the Destruction of the Chicago Wildflower Works, Chicago, IL
April 5, 2006 - Chicago Sun Times, "Lost Garden", Letters to the editor, Editorial page, by John Viramontes
April 5, 2006 - Chicago Tribune, "Landscape Lacking", Voice of the People web log, Editorial page, by John Viramontes
March 29, 2006 - 34th Annual American Law Institute - American Bar Association Program "Managing and Protecting Museum Intellectual Property", panel: "Is That Lawn a Sculpture? What Every Museum Needs To Know About the Visual Artists Rights Act", Legal Issues in Museum Administration, Cosponsored by The Smithsonian Institution with the cooperation of the American Association of Museums, presented at the Millennium Knickerbocker, Chicago, IL, access the item here
Winter 2005 - Texas Intellectual Property Law Journal, "Revisiting the Visual Artists Rights Act of 1990. A Follow-up Survey About Awareness and Waiver". Vol. 13, No. 2, Winter 2005 by RayMing Chang. Accessible here
July 11, 2005 - Chicago Tribune, "Let Promotion Bloom", Voice of the People, Editorial page, by John Viramontes, Chicago, IL
July, 2005 - Landscape Architecture, "Art Attack: The Plot Thins", Page 28, by Jane Roy Brown
June 11-12, 2005 - "Public Art Under Attack", 1st annual grassroots public protest: Outrage Against the Destruction of the Chicago Wildflower Works, Chicago, IL
Spring 2005 - Commenced "Public Art Under Attack", letters to the editor writing initiative to denounce the destruction of the Chicago Wildflower Works, Chicago, IL
Winter 2004 - Initiated "Public Art Under Attack", petition-signing campaign launched to rally public support for public art the Chicago Wildflower Works, Chicago, IL
Dec. 1, 2004 - Chicago Tribune, "Park District sued over wildflower art; '84 Grant Park garden cut in size", Page 3, by Hal Dardick
Dec. 1, 2004 - Chicago Sun Times, "Wildflower garden artist sues city over its destruction", Page 14, by Andrew Herrmann
July 18, 2004 - Chicago Tribune, "Garden too wild for new landscape; wildflower artist sees part of work now destroyed", by Hal Dardick
Summer 1993 - "Green Landscaping with Native Plants", in John Marshall Law Review, Volume 26, Summer 1993, Number 4, Page 15, from U.S. Environmental Protection Agency, retrieved on April 27, 2008. Read the article here
Dec. 23, 1988 - Chicago Reader, "This Garden is Condemned"
Aug. 18, 1988 - Chicago Tribune, "Parks make wildflower garden offer", by William Recktenwald
Aug. 5, 1988 - Chicago Sun Times, "Artist sues to maintain flower power", Page 13, by Adrienne Drell
July 6, 1988 - Chicago Tribune, "Gone To Seed: How One Artist's Dream of a Wildflower Garden Turned into a Blooming Nightmare", Page 15, by Barbara Sullivan
June 1988 - Chicago Artists' Coalition News, "Chapman Kelley Vs. Chicago Park District", Page 6, 7, by Naomi Schreier
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The Council for Artists' Rights has compiled a list of books, May 2008 Masters thesis, brochures and papers which address art world issues.
View the listing here
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