Randy Picker on Kelley v. Chicago Park District

A Walk in a Chicago Park
Randal C. Picker
The Media Institute
April 27, 2011

Law professors rarely have labs the way that other scientists do.  For us, our classrooms are the places that we go to run our experiments to see what happens when a couple of unusual legal concoctions are mixed together.  It is a rare case that makes you want to rush instantly to the classroom, but Kelley v. Chicago Park District, decided earlier this year by the U.S. Court of Appeals for the Seventh Circuit, is exactly that sort of case.

The setting is Chicago’s beautiful Grant Park.  In 1984, Chapman Kelley, a well-known artist, was given permission to install a display of wildflowers in the park.  (You can visit Kelley’s website to get some sense of the nature and scale of the project.)  But over time, the wildflower installation changed, and by 2004, the Chicago Park District undertook to modify it and cut back substantially on the size of the garden.

Kelley was none too pleased and expressed his displeasure by asking for $25 million in damages under the Visual Artists Rights Act of 1990 (VARA).  VARA is explicitly a moral rights statute and we don’t have too many of those in the United States.  Most of copyright law focuses on questions o