The Visual Artists Rights Act of 1990

            The Visual Artists Rights Act of 1990 or VARA was drafted by US Senator Edward "Ted" Kennedy (1932 - 2009) 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 law firm Kirkland & Ellis 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  

         On February 15, 2011, Kelley received an adverse appellate decision.  Read the decison here 
appellate decision pdf file.  This appeals court decison allows Kelley to seek redress in the Supreme Court of the United States.
         On March 15, 2011, Kelley filed a petition for rehearing "en banc."

         On March 22, 2011, Volunteer Lawyers for the Arts New York filed an amicus curiae brief, read it hereAmicus curiae brief was denied by the appellate court.

         On July 18, 2011 Kelley filed a petition with the Supreme Court of the United States

Grassroots Public Protests, Bibliography, Broadcast Media Interviews, Panel Discussion, Artists' Rights Lecture


2017 - McCutcheon, Jani, Shape Shifters: Searching for the Copyright Work in Kinetic Living Art (March 16, 2017). Forthcoming, 2017, Journal of the Copyright Society of USA. Available at SSRN here

2017  - McCutcheon, Jani, Natural Causes: When Author Meets Nature in Copyright Law and Art. Some Observations Inspired by Kelley v Chicago Park District (July 25, 2017). University of Cincinnati Law Review, Vol. 86, No. 2, Forthcoming; UWA Faculty of Law Research Paper No. 2017. Available at SSRN:

2016 - Bob Clarida, Copyrightability of Conceptual Art: An Idea Whose Time Hasn't Come, 39 Colum. J.L. & Arts 365
2016 - Zahr K. Said, Copyright's Illogical Exclusion of Conceptual Art, 39 Colum. J.L. & Arts 335
August 3, 2016 - Grant, Daniel, The More Art Changes, the More Urgent an Update to the Visual Artists' Rights Act Becomes, New York Observer
March 10, 2015 - Kwall, Roberta Rosenthal, Living Gardens, Living Art, and Living Tradition (March 10, 2015). 5 IP Theory Journal 73 (2015). Available at SSRN:
2014 - Dawn Leung, A Fixation on Moral Rights: The Implications of Kelley v. Chicago Park District for Copyright and VARA Protection, 4 Ariz. St. Sports & Ent. L.J. 1 (2014). The article goes from pages 1-75. A link to the article can be found at
Sept. 4, 2014 - Grant, Daniel,
The Law Against Artists: Public Art Often Loses Out in Court, New York Observer
May 29, 2014 - Carpenter, Megan M. and Hetcher, Steven A., Function Over Form: Bringing the Fixation Requirement into the Modern Era (May 29, 2014). 82 Fordham Law Review 2221 (2014). Available at SSRN:
June 13, 2013 - DePaul University, College of Law and the Center for Intellectual Property Law & Information Technology (CIPLIT®) and The Chicago Bar Association Media and Entertainment Committee "
The Visual Artists Rights Act, Copyright and Conceptual Art: Creating and Protecting Art After Chapman Kelley v. Chicago Park District"
June 10, 2013 - Panelist at the Copyright Society of U.S.A. annual
October 11, 2012 - Harvard Journal on Sports & Entertainment Law, "Fixation and Authorship in ‘Living Art’: A Weakness in Copyright Law" by Erica Esposito
June 13, 2012 CLANCCO, "Artist Talk: When Cancellations Become Form."
June 5, 2013 - Ericsson, Lily (2013) "Creative Quandary: The State of Copyrightability for Organic Works of Art," Seton Hall Journal of Sports and Entertainment Law: Vol. 23: Iss. 2, Article 4.
Available at:
2012/2013 - Henry Lydiate, University of the Arts, London, "What is Art?" Southwestern Law School, Journal of International Media & Entertainment Law, Vol. 4, No.2, accessed August 31, 2013
May 17- 18, 2012 - Annual conference International Bar Association, by David Liatowitsch, "New Art: New Legal Challenges," Museo Nazionale Delle Arti del XXI Secolo, Rome, Italy  

Feb. 29, 2012 - Kwall, Roberta Rosenthal, The Lessons of Living Gardens and Jewish Process Theology for Authorship and Moral Rights (February 29, 2012). Vanderbilt Journal of Entertainment & Technology Law, Forthcoming. Available at SSRN: (revised June 22, 2012)
Oct. 1, 2011 - Radio Nederland Wereldomroep (Radio Netherlands Worldwide), Earth Beat with Marni Chesterton.  Listen to the conversation online here
Sept. 30, 2011 - The Art Newspaper, "This copyright confusion ought to end" by Donn Zaretsky. issue 228, October 2011
Sept. 4, 2011 -  Chicago Wildflower Works blueprint 1984 (legal evidence)
Sept. 4, 2011 - Chicago Wildflower Works by Kelley, watercolor 1984 (legal evidence)
Sept. 4, 2011 -  Chicago Wildflower Works scale model by Peter Block Architects, 1984 (legal evidence)
Aug. 24, 2011 - Intellectual Property Association of Chicago, "Amicus curiae brief for Chapman Kelley."
Aug. 24, 2011 - Amici curiae brief here filed by visual artists Blane de St. Croix, Thomas Lawson, Molly Dilworth, arts organizations and arts educators the Volunteer Lawyers for the Arts and the Arts and Business Council of Greater Boston, read the brief here.
Spring 2011 - Carpenter, Megan M., Drawing a Line in the Sand: Copyright Law and New Museums (October 5, 2010). Vanderbilt Journal of Transnational Law, Vol. 13, No. 3, Spring 2011. Available at SSRN:
July 26, 2011 - D Magazine, Front Row, by Peter Simek, "Dallas Artist Chapman Kelley Takes Wildflower Case to Supreme Court," accessed July 26, 2011
June 1, 2011 - Oxford University Press, Journal of Intellectual Property and Practice, by Jeff John Roberts, "Rare US moral rights ruling by Seventh Circuit; no protection for Chicago garden," Subscription required
May - June 2011 - Art Asia Pacific, by Chin-Chin Yap, "The Un-Edenic State of Copyright," accessed May 4, 2011
April 27, 2011 - The Media Institute, by Prof. Randal C. Picker, Univ. of Chicago Law School, "A Walk in a Chicago Park," accessed April 28, 2011 
April 21, 2011 - The Art Newspaper, by Martha Lufkin, "Chicago court denies artist's copyright appeal, Chapman Kelley will now seek an appeal with the US Supreme Court" Accessed April 21, 2011
Spring 2011 - Maryland Lawyers for the Arts, Arts Brief "Wildflower Garden Cannot Be Copyrighted, Appeals Court Says" by Marcia Semmes, Accessed April 18, 2011
April 18, 2011 - Daily Telegraph by Rupert Christiansen, "It's a boy--and 25 minutes to curtain up [Flower Power--but is it art?]" accessed April 18, 2011
April 14, 2011 - JETLawBlog: The Official Blog of the Vanderbilt Journal of Entertainment and Technology Law, by Kat Kubis, "Uncertain Future for Conceptual Art" accessed April 18, 2011
Mar. 22, 2011 -, by Emma Allen, "Copyrights and Copy Wrongs: Learning from the Legal Precedents Set by Jeff Koons, Shepard Fairey, and Others" accessed March 23, 2011
Mar. 7,  2011 - IPKat, by Jeff John Roberts, edited by Jeremy Phillips, "
Wild flowers give Chicago city bosses a run for their money" accessed March 10, 2011
March 2011 - D Magazine, by Peter Simek, "Art Cops," Subscription required
Feb. 25, 2011 - Harvard Journal of Law & Technology, "
Seventh Circuit Denies Moral Rights Protection to Chicago Garden" by By Albert Wang – Edited by Matthew Gelfand, accessed February 25, 2011
Feb. 23, 2011 - Chicago Tribune, Voice of the People, "
Artistic Success," by Council for Artists' Rights, accessed March 3, 2011
Feb. 23, 2011 - Mallesons Stephen Jaques (Australia), IP Whiteboard blog,  "
Copyright in a Chrysanthemum?" by George Croft, accessed February 2011
Feb. 21, 2011 - Dallas Art History blog, "
U.S. Court of Appeals short changes Dallas artist's solution to world's water supply," by Sam Blain, accessed February 22, 2011
Feb. 21, 2011 - American University Intellectual Property Brief, Washington College of Law, "
A Garden is Planted, but Never Authored" by Mark Trantos, accessed February 22, 2011
Feb. 17, 2011 - Tech, "
Millennium Park Garden Deemed Not Copyrightable, Because Gardens Are Not Authored" by Mike Masnick, accessed February 22, 2011
Feb. 17. 2011 - Seattle Copyright Watch, "
Fixation in Copyright Does Not Extend to Wild Flower Garden" by Tonya Gisselberg, accessed February 22, 2011
Feb. 16. 2011 - International Municipal Lawyers Association, Newsletter #3, "Implied Contract Based on Casual Remark," accessed March 9, 2011 
Feb. 16, 2011 -, "
Court: Not All Conceptual Art May Be Copyrighted" by Sergio Munoz Sarmiento, accessed February 22, 2011
Feb. 16, 2011 -, The National Law Journal, "Garden not eligible for copyright protection, 7th Circuit rules" by Sheri Qualters 
Feb. 16, 2011 - Art Law Blog, "
7th Circuit Wildflower Decision (Updated), by 
Donn Zaretsky, accessed February 22, 2011
Feb. 16, 2011 - Jennifer Kuhn, "The Wildflower Case: Chapman Kelley v. Chicago Park District. The Seventh Circuit holds no protection for gardens, VARA loses again." accessed April 3, 2011
Feb. 15, 2011 - Chicago Tribune, "
Appeals court backs city over wildflower gardens.  Artist sought federal protection for project in Bicentennial Plaza" by Erika Slife, accessed March 3, 2010 
Feb. 15, 2011 - More Law, Lexapedia, Chapman Kelley v Chicago Park District by Kent Morlan, accessed April 20, 2011 
Dec. 26, 2010  - Dallas Art History blog, "
Welcome to the Dallas Art History blog"  by Sam Blain, accessed January 6, 2011 
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 -,
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
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

2010 - North Carolina Journal of Law and Technology Volume 11, Issue 3: Special 2010 - Visual Artists Rights Act (VARA) and the Protection of Digital Works of "Photographic" Art by Llewellyn Joseph Gibbons, page 531
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 
November 2009 - State Bar of Michigan, International Property Law Section Proceedings, "
Copyright as the Stealth Issue in Real Estate and Urban Renewal", by Danielle Gaier, page 8-9, color illustrations page 11
Aug. 24, 2009 - (National Coalition Against Censorship), "Kelley Vs. Chicago Park District", accessed on Aug. 24, 2009, read it 
June 19, 2009 - "Chapman Kelley files Response & Reply brief", acccessed June 23,2009, read it 
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 
June 5, 2009 - "Chapman Kelley:  My Art is Original", acccessed June 5,2009, read it 
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"The Price for Planting", by attorney John-Paul Benitez, accessed May 26, 2009, read it
May 12, 2009 - The Art Law Blog "This case has profound implications for artists", by Donn Zaretsky, accessed May 12, 2009, read the blog
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
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 
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
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
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 
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 
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
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 
Oct. 2, 2007 Edward Winkleman blog, "VARA Controversy in the Heartland Settled: Verdict to the Artist", accessed Nov. 21, 2008, read blog
Oct. 1, 2007 - Chicago Sun Times, "Cheers for artist", Page 34, in Talkback at
Sept. 29, 2007 - Slate Magazine, "Wildflower Artist Wins VARA Prelim Decision in Federal Court", read the article
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 
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
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
(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 
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
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
Dec. 23, 1988 - Chicago Reader, "This Garden is Condemned" by Fran Zell
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
May 7, 1988 - Chicago Tribune, "
Consider the lilies of the field," Editorial

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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