{"id":519,"date":"2012-10-11T18:25:01","date_gmt":"2012-10-11T22:25:01","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/jsel\/?p=519"},"modified":"2023-07-25T12:19:11","modified_gmt":"2023-07-25T16:19:11","slug":"artists-medium-or-the-artist-a-weakness-in-copyright-law","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jsel\/2012\/10\/artists-medium-or-the-artist-a-weakness-in-copyright-law\/","title":{"rendered":"Fixation and Authorship in ‘Living Art’: A Weakness in Copyright Law."},"content":{"rendered":"

In 1990, Congress passed the Visual Artist\u2019s Rights Act (VARA) as part of the Copyright Act, intended to expand and protect artists\u2019 rights over their works. Specifically, the act acknowledges an artist\u2019s moral rights by granting artists the rights of attribution and integrity whereby they may claim or deny authorship and prevent any modifications of their work that might result in reputational damage.<\/p>\n

Rather than protect artistic work, the courts\u2019 application of VARA and copyright law generally has done more to signal the suppression of the very qualities for which we value artists, namely their inventiveness and creativity. This is no clearer than in the recent case of Kelley v. Chicago Park District<\/a>, in which the Seventh Circuit held that renowned artist Chapman Kelley\u2019s Wildflower Works<\/em>, a site-specific wildflower installation in Grant Park, lacked the authorship and stable fixation required for copyright protection. Ineligible for copyright protection, this \u201cliving art\u201d was consequently precluded from moral rights protection under VARA.<\/p>\n

The court held that Wildflower Works lacked sufficient authorship because nature, not Kelley, primarily determined the medium\u2019s \u2013 wildflower seeds – form, growth, and appearance. While nature determines the flowers\u2019 appearance, an artist\u2019s influence over his medium\u2019s appearance has never been determinative of authorship in art or law. Intuitively, authorship derives from an artist\u2019s mastery in employing and manipulating his medium to influence the appearance of his composition as a whole. Saying that nature is the primary author of Wildflower Works<\/em> because it determines the appearance of each flower is akin to saying that nature is the author of Michelangelo\u2019s David<\/em> because it determined the appearance of the marble from which the sculpture was carved. The court incorrectly focuses its discussion on the origins of the artist\u2019s medium, rather than on how the artist manipulates that medium to produce a new whole. Indeed, as Michelangelo once said, \u201cevery block of stone has a statue inside it and it is the task of the sculptor to discover it.\u201d<\/p>\n

Likewise, the court argues that Wildflower Works<\/em> lacks fixation given that its \u201cconstituent elements are alive and inherently changeable.\u201d While the court recognizes that copyright does not only attach \u201cto works that are static or fully permanent,\u201d and denies \u201cthat artists who incorporate natural or living elements in their work can never claim copyright,\u201d it seems to have a very superficial and constrained notion of what fixation requires. The court finds that Jeff Koons\u2019 sculpture, Puppy, involving a metal frame covered with flowers, may be appropriately fixed for the purposes of copyright protection. Are the courts so antiquated to suggest that copyright protection hinges on the presence or absence of a metal frame or some other more \u2018typical\u2019 media, regardless of whether such a feature adds to the work\u2019s integrity?<\/p>\n

Artists receive moral rights because we view artistic work as an extension of the artist himself. Thus, artists have a more profound connection to, and deserve greater protection over, the commodities they produce than do producers of other commodities. The raison d\u2019etre of moral rights is to facilitate creativity by assuring artists that the objects of their self-expression, the extensions of their personhood, may not be altered, destroyed, or appropriated without certain recourse. I am not suggesting that recent legal developments have altered the way artists today engage in the creative process. However, persistently narrow statutory interpretations may force artists to conform their work to arbitrary legal requirements in order to acquire the protection and security they need to grow their brand and profit from their work. Would this not stifle the very creativity and artistic integrity that moral rights were meant to enhance?<\/p>\n

 <\/p>\n

Written by Erica Esposito. Erica Esposito is a 2L at Harvard and has a degree in Art History.<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

In 1990, Congress passed the Visual Artist\u2019s Rights Act (VARA) as part of the Copyright Act, intended to expand and protect artists\u2019 rights over their works. Specifically, the act acknowledges an artist\u2019s moral rights by granting artists the rights of attribution and integrity whereby they may claim or deny authorship and prevent any modifications of 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