Wild flowers give Chicago city bosses a run for their money

From lawyer, journalist and occasional pen-friend of tytoc collie Jeff John Roberts comes the exciting news of something almost as unusual as an admission from the US Patent and Trademark Office that its patent system is out of step with the rest of the world -- a truly rare US moral rights case,Chapman Kelley v Chicago Park District (here).

The disputants here were the City of Chicago, no less, and the creator of two very large oval gardens known as "Wildflower Works" (right), located in the city's main park.  Chapman Kelley for years oversaw volunteers who filled the gardens with hundreds of types of flowers capable of surviving the city's tough climate. The result was an evolving and ongoing spectacle that delighted city residents and received praise in the press.

One day, Jeff John explains, the city decided the lovely gardens had to be scaled back to make room for the new Millennium Park. Kelley's grand ovals were turned into squares and reduced to about half the original size. Kelley invoked his right of integrity under America's little-used Visual Artists Rights Act (VARA), a piece of legislation that Congress reluctantly passed in order to comply with the Berne Convention.

At first instance the district court found for the city: while Kelley's creation was indeed both a painting and a sculpture, it lacked originality and was in any case ineligible for protection because it fell under a site-specific art exception under VARA. The 7th Circuit rejected both these findings, spending a healthy amount of time knocking around the district judge while doing so. The appellate court suggested that the site-specific exception was intended for works incorporated into buildings and, in regard to the originality finding, the judge had erroneously equated originality with novelty; the law however is clear that a work can be original even if it is not novel.  But all this is essentially obiter because:

"The Park District has not challenged the district court’s conclusion that Wildflower Works is a painting and a sculpture. This is an astonishing omission ... 

The real impediment to copyright here is not that Wildflower Works fails the test for originality (understood as “not copied” and “possessing some creativity”) but that a living garden lacks the kind of authorship and stable fixation normally required to support copyright ... 

Simply put, gardens are planted and cultivated, not authored. A garden’s constituent elements are alive and inherently changeable, not fixed."

Finally, the decision contains a guest appearance by serial copyright litigant Jeffrey Koons, noting that, while Wildflower Works is ineligible, more sturdy topiary works like Koons' 42-foot floral "Puppy" (above, right) did meet the fixation requirement.

Thanks, Jeff John, for this fascinating insight into US horticulture!  Merpel adds, in previous generations the City of Chicago has had to tussle with opponents like Al Capone and Baby Face Nelson.  Even so, it must have thought it would be easier to get the better of a bunch of flowers ...

"A picture's worth a thousand words ..." Really?

The British Journal of Photography reports that Getty Images is pursuing a copyright claim against the campaigns of US Senate candidates Sharron Angle and David Vitter, alleging that they used one of its photographic images out of context and without a proper licence.  According to the report's author, Olivier Laurent, British photographer Chris Floyd shot a story for the British version of GQ magazine back in 2006 called "The Minutemen".  This story focused on a citizen group whose main concern was illegal immigration into the US. It appears that Floyd, accompanied by a journalist, visited the Mexican town of Altar, a place of transit for would-be illegal immigrants heading for the border. The image shown here was published in GQ before being made available through Getty Images for editorial (and presumably therefore non-political) purposes only.

Illegal? Immigrants? How can you tell
when all you can see is the photo?

It now transpires that the photo was used in the Republican senate campaigns of Sharron Angle (Nevada) and David Vitter (Louisiana). In Angle's case the subjects of the photograph are labelled ‘Illegal Aliens’, even though the Getty picture caption clearly states the portrait is of three Mexican citizens and that it is taken in Mexico. says Floyd. Alleging copyright infringement, Getty Images has filed a claim with video hosting services such as YouTube, which have now removed the offending videos of the ads. Floyd adds that his own credibility as a photojournalist has been compromised by the demonstrably false statement that the men portrayed in the commercials were illegal aliens.

tytoc collie notes that, in the United Kingdom, the author of a work (in this case, the photographer) enjoys under the Copyright, Designs and Patents Act 1988, s.80, the right to object to derogatory treatment of his work. for the purposes of that section, s.80(2) defines treatment:

"(a)“treatment” of a work means any addition to, deletion from or alteration to or adaptation of the work, other than—
(i)a translation of a literary or dramatic work, or
(ii)an arrangement or transcription of a musical work involving no more than a change of key or register; and
(b)the treatment of a work is derogatory if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director".

tytoc collie wonders whether the caption of a photograph, being a literary work, can in generaly be regarded as part of a photograph, which is an artistic work, for moral rights purposes. He also wonders whether, if no caption is given to the photograph by the photographer, the subsequent mis-captioning of a photograph to which no further change is made could qualify as a "treatment", however derogatory it may be. 

Merpel isn't as interested in the copyright aspect as much as in the value of an illustration which doesn't effectively illustrate.  The photograph above could equally well be captioned "Mexican lads in Altar", "Illegal Aliens", "Hispanic lads in San Diego" or "Alfonso, Pedro and Diego on holiday in Bournemouth" -- and no reader would be any the wiser.  So what does it illustrate?