August 11, 2017

McCutcheon on Some Observations Inspired by Kelley v. Chicago Park District

Jani McCutcheon, University of Western Australia Faculty of Law, is publishing Natural Causes: When Author Meets Nature in Copyright Law and Art. Some Observations Inspired by Kelley v Chicago Park District in volume 86 of the University of Cincinnati Law Review. Here is the abstract.
This article considers the interplay between author and nature in United States copyright law, using Kelley v Chicago Park District as a catalyst. In Kelley, the Seventh Circuit repudiated Chapman Kelley’s authorship of his enormous wildflower garden, Wildflower Works, partly on the basis that natural forces, rather than Kelley, were primarily responsible for the form of the work. The article has two broad purposes. The first is to critique the Seventh Circuit’s denial of Kelley’s authorship. The article argues that the Seventh Circuit misconceived Wildflower Works by conflating the work with the plants constituting it. This skewed its assessment of Kelley’s authorship, failing to give sufficient weight to his selection and arrangement effort. The second, and primary, purpose of the article is to explore the ramifications of Kelley for other contemporary art employing natural materials and natural forces, and to more deeply examine authorship doctrine in this context. Using a number of examples of artists who collaborate with nature, the article explains how natural forces can disturb authorship, but may not defeat it. The aims of the article are to fuel discussion, prompt reflection, and question some deeper assumptions about the relationship between nature and authorship in copyright law.
Download the article from SSRN at the link.

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