Is a Garden Display a Copyrightable Work?

A recent article in BNA's Patent, Trademark & Copyright Journal reports a case (Kelley v. Chicago Park District, N.D. Ill., No. 04 C 07715, 9/14/07) that presents several interesting issues related to copyright law. Kelley is a "noted artist" who created a display of wildflowers in a Chicago park. For several years, he maintained the display under a permit, and continued to maintain it after the permit expired. Eventually, the park district fenced the area and removed the plantings. Kelley claims that his wildflower display qualifies as a sculptural work, and is protected by the Visual Artists Rights Act. The main issue, of course, is whether an arrangement of living plants can qualify as a sculptural work. One issue that might influence this determination is whether the display is a continuing work -- one in being since inception -- or whether each year Kelley created a new work, because it required extensive "cutting, trimming, and replanting" in order to maintain. Reading the article, I wondered if the threshold issue of whether plantlife qualifies as a tangible medium of expression was considered. If, instead of a public park district, this garden had been maintained on private property, the case would illustrate an important conflict between property rights and intellectual property. If Kelley prevails, would it mean that private property owners might lose their ability to exclude others from land, if such a work is established there. The article can be found on p. 694 of the Oct. 12, 2007 issue of Patent, Trademark & Copyright Journal (Vol 74, number 1838).