Leslie Chong is a JD candidate at Osgoode Hall Law School.

Chapman Kelley v. Chicago Park District is a recent decision rendered in the United States Court of Appeals (Seventh Circuit) that questioned the extent an author's moral rights may be protected in the United States. While the courts eventually held that no moral rights claim arose because the garden itself was not protected under copyright, it raises questions about whether the U.S. legislation ought to be as restrictive in the types of works that are afforded moral rights, as well as the effectiveness of the statute in protecting these rights.

Chapman Kelley, an artist known for his paintings of landscapes and flowers set within ellipses, was given permission to install a wildflower display at Grant Park in downtown Chicago. After some time, the City decided to change the wildflower arrangement such that it was dramatically altered from Mr. Kelley’s original conception. Arguing that his ‘living art’ was copyrightable, Mr. Kelley sued the City for infringing on his moral rights – a right that is grounded under Visual Artists Rights Act (or “VARA”, the U.S. equivalent to s. 14 of Canada’s Copyright Act).

The initial trial court agreed that while the garden did fall under the enumerated categories of sculpture and painting which are protected by VARA, Mr. Kelley’s piece failed for lack of originality and as such attracted no copyright protection within which his moral rights claim subsisted. However, on appeal the court held that it was not the lack of originality that precluded the garden from protection, but rather that it lacked the “kind of authorship and stable fixation normally required to support copyright” (at page 29).

Arising out of obligations from the Berne Convention (to which Canada is also a signatory), the moral rights doctrine was imported into American law through VARA in 1990.  Effectively, it protects the rights of attribution and the rights of integrity to artists who create specific types of visual art (see 17 U.S.C. § 106A(a)). Given its limited scope and (relatively) recent introduction into American law, moral rights claims have rarely been a cause of action. And while American protection of moral rights is relatively narrow and restrictive, Canadian law is more forgiving and does not limit the types of works authors must create in order to garner protection. Given this difference between Canadian and American protection of moral rights in copyright law, it would be interesting to see how a similar case would have been decided in Canada.