In 1984, Chapman Kelley received a permit from the Chicago Park District to create Wildflower Works, an installation of wildflowers at Daley Bicentennial Plaza in Grant Park that garnered national media attention. In 1988, the Park District notified Kelley that his permit was to be terminated within 90 days, as stipulated by the contract. In response, Kelley brought suit and as part of the settlement, the Park District agreed to renew the temporary permit for one year. For years thereafter, the permit was renewed annually until 1994, when the last permit expired. Nonetheless, for the next ten years, Kelley continued to maintain Wildflower Works without the Park District's renewal of the temporary permit.
In 2004, without notice to Kelley, the Park District reconfigured Wildflower Works and reduced it in half, effectively destroying the installation as it had originally been conceived. Kelley then brought suit for breach of contract and violation of the Visual Artists Rights Act (VARA).
In order to be protected by VARA, Wildflower Works had to (1) meet the statutory definition of "a work of visual art" and (2) be subject to copyright protection. Although the court found that the installation was a work of visual art, it held that the installation was not subject to copyright protection because it was not original. In fact, the court argued that Kelley's configuration of growing wildflowers was no different than the landscaping of wildflower beds at Monticello.
Still, even if Wildflower Works was copyrightable, the court held that VARA does not protect site-specific works of art, relying heavily on the statute's silence with respect to site-specific works and a decision by the First Circuit.
On the breach of contract claim, the court held that the Park District did breach the implied contract by failing to give him notice of plans to alter the installation so that he could have reasonable time to remove the work. Nonetheless, the court held that Kelley failed to provide evidence of the damages he suffered to a reasonable degree of certainty. Therefore, the court only awarded him nominal damages of one dollar.
On April 13, 2009, Kelley filed an appeal, which is currently pending in the Seventh Circuit Court of Appeals.
These materials are not intended, and should not be used, as legal advice. They necessarily contain generalizations that are not applicable in all jurisdictions or circumstances. Moreover, court decisions may be superceded by subsequent rulings, and may be subject to alternative interpretations. Corrections, clarification, and additions are welcome. Please send to firstname.lastname@example.org.