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10 Oral Argument. September 10, 2009.

11 Chapman Kelley vs. Chicago Park District.

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1 FEMALE VOICE: Good morning, everyone, and
2 welcome. Our first case of the morning is
3 No. 08-3701, Chapman Kelley versus Chicago Park
4 District.
5 MR. MARCUS: Good morning, your Honors. Thank
6 you for your time today. My name is Micah Marcus.
7 I'm here representing Chapman Kelley on his appeal
8 from the district court.
9 My client's appeal centers around two
10 major issues. First, whether the district court
11 erred by finding that my client's work, Wildflower
12 Works, was not entitled to protection under the
13 Visual Artists Rights Act because it was not
14 sufficiently original as to be entitled to
15 protection under the Copyright Act.
16 If it pleases the court, I'll refer to
17 the Visual Artists Right Act as VARA, as I find
18 that far easier to say repeatedly.
19 The second issue is whether the district
20 court erred in finding that VARA itself does not
21 protect site-specific art and, therefore, does not
22 protect -- did not protect my client's work,
1 Respectfully, if our society is going to
2 be understood to value art, the federal courts have
3 to be ready to protect that art and protect the
4 statutes which were put in place by Congress to
5 protect those rights.
6 I'll first turn to the issue of the
7 application of VARA. As I said, the district court
8 determined that Wildflower Works was not entitled
9 to VARA protection because it didn't satisfy the
10 initial element of being able to be protected by
11 the Copyright Act.
12 The court found -- and this has not been
13 appealed -- that it was a work of visual art, is
14 either a painting or a sculpture, and would
15 otherwise be entitled to protection but for this
16 lack of ability to be copyrighted because it was
17 not original.
18 And in that particular point the court
19 stated as follows:
20 "Is it the elliptical design, the size,
21 the use of native instead of non-native plants, the
22 environmentally sustainable gardening system method

Page 3 Page 5

1 Wildflower Works. I would respectfully submit to
2 this panel that the district court erred in both
3 cases.
4 There is also a counter-appeal in this
5 issue in which the City of Chicago has taken the
6 position that the district court erred in finding
7 that Judge Coar found on behalf of my client for
8 breach of contract based upon the argument that
9 Margaret Burroughs, as a commissioner of the Park
10 District, was unable to bind the City with respect
11 to its obligations to Mr. Kelley.
12 That's the basis of the case, but that's
13 not what this case is about. Respectfully to my
14 client and to this panel, this case extends far
15 beyond Chapman Kelley and Wildflower Works.
16 This case is about artists nationwide
17 who look to the federal courts for protection of
18 their intellectual efforts and their art that
19 undoubtedly brings value to society at large.
20 Rights that would be placed in serious jeopardy
21 were the district court's decision allowed to
22 stand.
1 to which vegetative management systems apparently
2 refers?
3 Kelley leaves this court to assume that
4 he is the first person to ever conceive of and
5 express an arrangement of growing wildflowers in an
6 ellipse shaped enclosed area in the manner in which
7 he created this exhibit."
8 Respectfully, that implies a standard of
9 originality that is simply untenable and
10 unenforceable in our system.
11 The concept of original as provided by
12 the Supreme Court in Feist is a minimal degree of
13 creativity, a mere spark of intellectual labor that
14 separates the work of art as original versus a
15 copy.
16 Now, under this standard I can assure
17 this panel if they were to look at the copyright
18 registry and they wanted to look up paintings of a
19 woman on a canvas, I would assure you there'd be
20 millions. If they wanted to look up painting of a
21 fruit bowl, if they wanted to look up sculpture of
22 a man or a book.

2 (Pages 2 to 5)
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Page 6
1 The mere fact that a form of art has
2 been performed before does not mean that that type
3 of art can never be copyrighted after. It is not
4 the --
5 UNIDENTIFIABLE JUDGE 1: What do you mean, it
6 has to be independently created? It could be --
7 someone else could have done something else, but as
8 long as it's original with this artist, is that
9 enough?
10 MR. MARCUS: That is correct. It's not a
11 standard of novelty or new art. I mean, if that is
12 the standard, there would be no further copyright
13 protection in art ever. Unless we come up with a
14 completely and new utter concept of what art is, we
15 will no longer have copyright protection moving
16 forward. And that just simply can't be the right
17 standard.
18 In response to this, the City simply has
19 no response. They can't justify the court's
20 position on his view of originality, and instead
21 simply says it wasn't original. Well, why not?
22 There was a huge degree of artistic labor put into
Page 7
1 this.
2 This was Mr. Kelley's artistic vision
3 for the past -- for over 20 years before creating
4 Wildflower Works. He was known for creating
5 elliptical shapes surrounding wildflowers on
6 paintings and other forms.
7 JUDGE SYKES: Well, the statute doesn't
8 require a huge degree of creativity or originality.
9 It's a very, very low threshold.
10 MR. MARCUS: I would agree, your Honor. And
11 to the extent that this panel would accept it, this
12 is the minimal amount of creativity required, then
13 I'll move on to my next subject.
14 JUDGE SYKES: The harder question is the
15 site-specific art question.
16 MR. MARCUS: Okay. Well, moving on to the
17 site-specific art question, I would also suggest
18 the district court erred in that matter as well.
19 The district court simply applied
20 Phillips, the case of Phillips, without any type of
21 analysis or independent thought, other than the
22 fact that Phillips decided that site-specific art
Page 8
1 would not be entitled to protection. And the
2 Phillips case, effectively, was wrongfully decided.
3 UNIDENTIFIABLE JUDGE 1: Site specific?
4 MR. MARCUS: Site-specific art.
5 UNIDENTIFIABLE JUDGE 1: Now, that's not
6 statutory, is it?
7 MR. MARCUS: No, that's not statutory, your
8 Honor. That was -- that was the definition created
9 by the first circuit in Phillips. And I would -- I
10 would state also that I don't believe that the use
11 of that definition even applies to this case.
12 UNIDENTIFIABLE JUDGE 2: But that public
13 presentation exception is statutory, and that's
14 pretty broad, isn't it?
15 MR. MARCUS: I -- I don't think it's so broad.
16 And I think while it certainly does apply and it
17 certainly does allow an owner of land to move
18 property, it doesn't allow them to destroy it where
19 it sat for 20 years.
20 In particular, the -- I would point that
21 the existence of the exception actually renders
22 clear the fact that the statute is intended to
Page 9
1 recognize site-specific art. The statute -- the
2 particular exemption you're discussing says that in
3 the case that an artist claims that the
4 modification by movement or lighting of his art
5 causes mutilation or distortion, that won't
6 consider -- that won't constitute the type of harm
7 or distortion or mutilation that this act finds
8 actionable.
9 There is one type of artist that would
10 offer such an argument, an artist who believes that
11 the site in which his art lays has an impact on the
12 overall artistic vision. So why would that
13 exception exist if the statute wasn't otherwise
14 meant to cover and protect site-specific art?
15 In particular, by the mere fact that the
16 art can be harmed in one way that other art is not
17 susceptible to does not mean it's not entitled to
18 all the other protections provided under the act of
19 VARA.
20 For instance, the right of attribution
21 has absolutely no relationship to this issue. Did
22 Mr. Waffla (phonetic) -- I apologize.
3 (Pages 6 to 9)
 AUDIOTAPE TRANSCRIPTION
Page 10
1 Did Mr. Kelley have the right to claim
2 that he had -- that he created Wildflower Works to
3 the public? Was that a right protected by VARA? I
4 would suggest it is.
5 Did Mr. Kelley have the right to not
6 have his artwork defamed or destroyed or mutilated?
7 And I would suggest he does.
8 UNIDENTIFIABLE JUDGE 2: Speaking of
9 defamation, what was the evidence that your client
10 suffered some reputational loss because of the
11 reconfiguration or different array that the
12 wildflowers are now in?
13 MR. MARCUS: Your Honor, I don't believe that
14 reputational loss is a necessary element with
15 respect to the destruction of the property. And I
16 would suggest that Mister -- that there were a
17 number of --
18 UNIDENTIFIABLE JUDGE 2: Well, doesn't the
19 statute require that the modification be
20 prejudicial to his or her honor or reputation?
21 MR. MARCUS: Well, it's prejudicial to an
22 honor that would destroy his entire life's work,
Page 11
1 your Honor.
2 UNIDENTIFIABLE JUDGE 1: Which is it? Is it
3 protecting his reputation, VARA, protecting his
4 reputation, or is it protecting the work of art?
5 MR. MARCUS: I think it's -- I think it's
6 both, your Honor. I -- I think it's both
7 protecting his honor and his reputation. What --
8 what the City did was --
9 UNIDENTIFIABLE JUDGE 1: No, I'm saying make
10 your distinction between honor and reputation and
11 the artwork itself. I thought it was mostly to
12 protect the, I guess, the reputation or the
13 integrity of the artists.
14 MR. MARCUS: Yes, but I believe it does that
15 by protecting the art. So, I mean, I don't think
16 you can completely separate the two.
17 The intent -- certainly, the intent is
18 to protect artists and their rights with respect to
19 their intellectual labor and the art that they
20 provide that society values.
21 JUDGE SYKES: What's the measure of damages?
22 MR. MARCUS: The measure of damages is
Page 12
1 statutory, your Honor, and I think that -- that
2 issue was never arrived at at the district court
3 because he decided that VARA did not apply.
4 But to this point, yes, he was -- he was
5 defamed in the fact that -- that it was clear that
6 the City felt that his art was not worth
7 protecting. And it was -- they were entitled to
8 destroy it without qualms, without any remorse.
9 And his artwork, his lifetime's work
10 which he had for 20 years, had brought people to
11 and showed and demonstrated as an example of his
12 original art form, had been destroyed. I mean,
13 that is damage in and of itself.
14 UNIDENTIFIABLE JUDGE 2: Does the City peg his
15 name to this new configuration? Do they say that's
16 his work?
17 MR. MARCUS: No, I do not believe they do.
18 But to that extent, they're not violating VARA in
19 trying to attribute a mutilated piece of work to
20 Mr. Kelley. But Mr. Kelley should have his piece
21 of work -- his piece of art still intact. He
22 should have that right for that to -- for that art
Page 13
1 to be available.
2 UNIDENTIFIABLE JUDGE 2: So a city makes a big
3 mistake when it accepts this type of art, doesn't
4 it? Because it's then locked in to -- to that
5 particular configuration, that particular array,
6 and can never modify its park --
7 MR. MARCUS: I disagree, your Honor.
8 UNIDENTIFIABLE JUDGE 2: -- once it does that.
9 MR. MARCUS: I disagree. The public -- I'm
10 not saying the public use exception doesn't apply.
11 And I'm -- what I'm saying is that Phillips
12 erroneously understood the impact of the public use
13 exception.
14 JUDGE SYKES: They could have moved this,
15 right?
16 MR. MARCUS: They could have moved this.
17 And -- and Mr. Kelley -- while -- while the City
18 will come up and say, "Well, Mr. Kelley objected to
19 the movement, he objected to the movement to
20 specific locations," he didn't object to movement
21 completely.
22 And, frankly, there were other locations
4 (Pages 10 to 13)
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1 that he was considering that he thought would have
2 been better locations for this to be moved. They
3 were not tied -- they were not tied into
4 maintaining Wildflower Works for the rest of his
5 life by allowing him to place Wildflower Works in
6 Daley Bicentennial Plaza. That's simply not the
7 case.
8 And the act specifically covers for
9 that. The act says in these cases and these cases
10 of site-specific art, I'm not going to allow you
11 artists to argue that you have adverse possession
12 over a piece of land because you put a piece of art
13 there, and it takes into account its surroundings.
14 UNIDENTIFIABLE JUDGE 1: So he can move --
15 you're saying he can move the piece of art. Did
16 you put this into one category, painting, drawing,
17 print or sculpture? Is this a sculpture?
18 MR. MARCUS: Your Honor, it's a matter of
19 final decision of fact by the district court that
20 this could be considered either a painting or a
21 sculpture. That issue has not been appealed.
22 UNIDENTIFIABLE JUDGE 1: All right. Well, if
Page 15
1 that's -- because I think they start with that.
2 But then comes the, I guess, the movability of it.
3 They claim, of course, that it's got weeds and all
4 kinds of other things wrong with it. I don't know
5 how well it was maintained over those years.
6 I can understand putting it somewhere
7 else, but is there any practical way to move that
8 flower by flower?
9 MR. MARCUS: Well, you don't have to move it
10 flower by flower. In fact, the only testimony that
11 came in in the trial court is actually they have
12 the ability to come in with giant scrapers, cut up
13 the entire piece of land, roll it up and carry it
14 over to another location. In fact, there was
15 testimony that a specific collector had brought in
16 an entire meadow from France for his private
17 collection by that very way.
18 So, I mean, this is not something
19 that -- moving it was not impossible. Moving it
20 did not require destruction. And simply destroying
21 it where it sat is not an appropriate act under
22 VARA. While they're allowed to move it, that is
Page 16
1 one thing.
2 In particular, if I can just focus the
3 court on the erroneous analysis of Phillips. I
4 mean, what Phillips took the position was is that
5 because one type of art -- one type of harm is
6 allowed, you're not entitled to any other
7 protection.
8 And there's no logical leap there.
9 There's no rational extension. The very purpose of
10 the act is to protect art, to protect artists of
11 well-known stature and recognize works, to protect
12 them.
13 Then you have a minimal exception that
14 says you can move art, and that can't be
15 actionable. (Inaudible) -- not to say, well, the
16 act could not have ever intended to give them any
17 other form of protection, I just suggest, is not
18 reasonable, not an appropriate extension.
19 If I can turn a little bit to the issue
20 then of damages. The district court, though,
21 finding on behalf of my client with respect to
22 breach of contract with the City for their
Page 17
1 destruction of his lifetime's work, found in the
2 end that they could not determine the appropriate
3 damages in this case because he -- Mr. Kelley
4 failed to present evidence of the damages in which
5 he failed to mitigate. I would suggest that that
6 gets the law of Illinois backwards.
7 The court found that the only testimony,
8 reliable testimony, was that the value of the
9 flowers in Wildflower Works had an approximate
10 value of $1.5 million. He also found that the --
11 at least 55 percent of those wildflowers had been
12 destroyed. That leads us to a very simple
13 calculation of $825,000.
14 Now, the court takes issue with the fact
15 that my client didn't say how much it would have
16 cost him to move those other flowers. Well, that's
17 not his burden. That's the burden of the defendant
18 who is claiming that they failed to mitigate our
19 damages by removing -- ironically, by removing
20 flowers before the City can destroy them.
21 JUDGE SYKES: There's kind of a threshold
22 question here, though, about what the terms of this
5 (Pages 14 to 17)
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1 implied contract are.
2 MR. MARCUS: Yes, yes, and I understand that,
3 and I was waiting to -- for rebuttal to discuss
4 those, but I'm happy to discuss those now.
5 With respect to the terms of an implied
6 contract, promissory expression, which was relied
7 upon by the district court, states that a
8 promissory expression is inferred from the facts,
9 circumstances and expression by the promisor
10 showing an intent to be bound.
11 In this case, Margaret Burroughs,
12 commissioner of the Park District, when asked
13 regarding the obligation of Mr. Kelley to seek an
14 additional permit, responded -- responded no,
15 you're there. You don't have to do anything else.
16 That was an expression from a specific question
17 regarding whether or not he was rightfully on
18 public land.
19 Regarding the other issue on whether or
20 not she had the right to bind the City, that goes
21 to the issue of corporate authority. And I would
22 point out that the district court's position on
Page 19
1 there is dead on. At 70 ILCS 1505 1701 reads in
2 relevant part:
3 "The commissioners of such district
4 constitute the corporate authority thereof and have
5 full power to manage and control all the officers
6 and property of the district and all parks."
7 JUDGE SYKES: Commissioners is plural.
8 MR. MARCUS: Commissioner is plural, that's
9 correct. The only reasonable interpretation of
10 this statute is that the legislature gave each
11 individual commissioner the authority and the
12 power, full power, to manage and control the
13 officers and property of the district.
14 JUDGE SYKES: That runs against the grain of
15 almost all municipal law.
16 MR. MARCUS: Your Honor, it's -- it's not for
17 the courts to rewrite the legislation, though. To
18 the extent that this -- to the extent the statute
19 was drafted in a manner to clearly grant authority
20 for individuals in addition to the commission,
21 there's a separate -- there's a separate set of law
22 dealing with how the commissioner has to act. That
Page 20
1 law -- those laws do not say this in any way --
2 JUDGE SYKES: Well, it goes beyond that. It
3 says, "No member of the board of any park district
4 can create any debt, obligation, claim or liability
5 for or on account of the Park District." So --
6 MR. MARCUS: But I believe that's in acting of
7 the commission.
8 JUDGE SYKES: That's not what it says. I
9 think we have to read these statutes together.
10 MR. MARCUS: Well, no, I -- I understand that.
11 But then you're effectively reading out the
12 language of 17 -- 70 1505 701. You're saying it's
13 superfluous and/or it's --
14 JUDGE SYKES: (Inaudible) -- in light of what
15 12054-6 says, which is that no individual member
16 can bind the board.
17 MR. MARCUS: Well, to the extent it's
18 contrary, then I think this court has to make the
19 determination of whether or not a party should be
20 able to -- should be entitled to rely upon a statue
21 which says the individual they're dealing with
22 has -- has corporate authority. I --
Page 21
1 JUDGE SYKES: Well, that's an estoppel
2 argument. An estoppel against the government is
3 very difficult to obtain.
4 MR. MARCUS: Well, I would suggest in this
5 case where -- and even the cases relied upon by the
6 City in that situation, where the City has allowed
7 parties to maintain property on public land for
8 multiple years. In this case, 20, and 10 without a
9 permit. The cases actually cited by the City have
10 found estoppel in those situations.
11 UNIDENTIFIABLE JUDGE 1: What about the
12 permit? How did the previous permits -- how were
13 they approved?
14 MR. MARCUS: The previous permits always came
15 from the City. There was never any formal
16 obligation started by Mr. Chapman Kelley with
17 respect to attaining the approval. Those would
18 just simply be forms that would come out from the
19 City which he would expect. When they didn't stop
20 coming, he expected that he had the continued right
21 to use these premises.
22 UNIDENTIFIABLE JUDGE 1: Was that the -- is
6 (Pages 18 to 21)
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Page 22
1 the City the commissioner, or is that somebody
2 else?
3 MR. MARCUS: Was the City the commissioner?
4 Well, it would be -- it was issued by the Park
5 District.
6 UNIDENTIFIABLE JUDGE 1: Yeah, commissioners.
7 MR. MARCUS: Yes, the commissioners, which
8 would include each individual commissioner as well.
9 UNIDENTIFIABLE JUDGE 1: Well, it included --
10 it was -- I assume it was approved by more than
11 one. Is that a wrong assumption?
12 MR. MARCUS: Your Honor, I -- I don't know
13 the --
14 UNIDENTIFIABLE JUDGE 1: I was a state senator
15 once. I didn't -- couldn't do anything by myself.
16 MR. MARCUS: Well, I would -- actually, I
17 would suggest that you didn't. I would suggest you
18 likely had the authority to hire staff. I would
19 suggest you likely had the authority which to take
20 any obligations that you had for your staff and get
21 reimbursement from the state with respect to that.
22 And you did have the authority to effectively bind
Page 23
1 the City with respect to ultimate economic
2 obligations that -- sorry, not the City -- the
3 state would have to comply with.
4 And I would suggest that this is no
5 different than a corporation, than any corporation.
6 That -- that corporations are required to act at
7 sometimes in board and act at sometimes other,
8 outside of the board, is perfectly consistent with
9 interpretation that you might want to have a Park
10 District commissioner who's appointed by the City
11 with some authority to act in addition with their
12 ability to act -- when acting in connection with
13 the commission.
14 And I'll save my remainder of time that
15 I have for rebuttal. Thank you.
16 JUDGE SYKES: Thank you. Ms. McGarry.
17 MS. McGARRY: Good morning, your Honors. My
18 name is Annette McGarry, and I represent the
19 Chicago Park District in this matter.
20 I'd like to make one issue clear right
21 up front just after the last argument. There was a
22 lot of discussion about the City. This isn't the
Page 24
1 City. It is the Park District, which is different.
2 And, you know, my client wants to make sure that
3 the distinction is clear.
4 We're here today to tell you that we
5 believe that the trial court's decision on VARA was
6 correct as a matter of law, as a matter of fact and
7 a matter of just common sense.
8 The court did find that VARA did not
9 apply to the wildflower garden because the garden
10 must have been copyrightable. And while there was
11 evidence of what was the description of the garden,
12 Mr. Kelley testified or put in evidence of what was
13 original elements about the garden.
14 He discussed the garden being elliptical
15 shaped. Well, there have been other elliptical
16 shaped gardens out there. He chose the flowers and
17 wildflowers. Well, there's other gardens out there
18 that are wildflowers.
19 We put forth that in order to be
20 copyrightable, something about that garden had to
21 be original. And the element or the originality
22 was their burden to prove, and they never put that
Page 25
1 forth.
2 There was also some other information
3 regarding copyrightability that came out.
4 Mr. Kelley did describe his garden as a vegetative
5 management system. 17 U.S.C. 102, when it
6 discusses what is copyrightable, specifically
7 precludes anything that is a system. There was
8 never any evidence or testimony distinguishing what
9 part of his garden was a system and what wasn't a
10 system.
11 UNIDENTIFIABLE JUDGE 2: Are these perennials,
12 or are they annuals? What -- I don't know that
13 much about flowers.
14 MS. McGARRY: I understand they're wildflowers
15 that come back every year. They're native to the
16 area.
17 UNIDENTIFIABLE JUDGE 2: So the plant itself
18 that he planted 20 years ago is the same plant
19 that's there, or does it die out and --
20 MS. McGARRY: I believe they come back every
21 year, yeah.
22 The court also concluded even if it was
7 (Pages 22 to 25)
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Page 26 Page 28

1 copyrightable, somehow there was an error made on
2 that issue, VARA would still not apply because it
3 was site specific.
4 JUDGE SYKES: Before we get to that, let me
5 just confirm. You're not challenging on appeal the
6 finding of the lower court on the status of this
7 work as a work of visual art.
8 MS. McGARRY: Well, we believe -- I understand
9 what you're saying because --
10 JUDGE SYKES: If you're not challenging that,
11 then I think the originality argument is out the
12 door.
13 MS. McGARRY: 17 U.S.C. 101 describes a visual
14 work as a picture, a sculpture, et cetera. And it
15 specifically excludes anything that is not
16 copyrightable. We believe we get to the same point
17 going where the Visual Art Right Act doesn't apply
18 because it's not copyrightable.
19 JUDGE SYKES: You're accepting that this is a
20 sculpture or a painting as the district court
21 found?
22 MS. McGARRY: Correct.
1 JUDGE SYKES: I thought there was all kinds of
2 testimony about whether this was or wasn't site
3 specific and argument around that whole issue.
4 MS. McGARRY: I'm not saying they waived any
5 argument whether or not it was site specific. I'm
6 saying they waived any argument with regards to the
7 application of Phillips.
8 JUDGE SYKES: Phillips is not a precedent of
9 this circuit, so that doesn't matter.
10 MS. McGARRY: The lower court did rely on
11 Phillips.
12 JUDGE SYKES: I understand that. But it
13 wasn't obliged to. I mean, there wasn't any -- any
14 need to say this is -- this case doesn't apply.
15 MS. McGARRY: Okay. Phillips holds the
16 first -- the First Circuit held that Phillips and
17 VARA did not apply to site-specific work. And
18 their reasoning was, first of all, that VARA is
19 silent on site-specific work, and that it was not
20 their job to interpret something into a statute.
21 It was Congress's job to amend the statute.
22 JUDGE SYKES: Actually, that's an argument in

Page 27 Page 29

1 JUDGE SYKES: Okay. 1 your opponent's favor. If the statute is silent as

2 MS. McGARRY: Okay. First of all, we believe
3 that Chapman Kelley waived any arguments to
4 complain about the finding in the Phillips case
5 regarding site specific. There was motions filed
6 in court during the trial regarding this. There
7 was a pretrial motion that was based on Phillips
8 that was filed.
9 There was also -- the judge gave some
10 preliminary findings basing it on Phillips and site
11 specific, and not once was there ever a murmur of
12 disapproval that the court was using the Phillips
13 case to describe site-specific work not being
14 covered under VARA.
15 UNIDENTIFIABLE JUDGE 1: So that you're saying
16 that they waived any challenge that site-specific
17 is a requirement or at least a possibility of
18 saying it isn't appropriate?
19 MS. McGARRY: Yes, I am. Absolutely. They
20 waived it. It was never anything that was ever
21 raised during a three-day bench trial and any
22 post-trial briefing.
2 to site-specific art, it doesn't exclude it. If
3 it's art, it's included, right?
4 MS. McGARRY: Actually, I'm -- can I finish my
5 argument? And then I think you'll understand why
6 it isn't in my opponent's favor.
7 It is our job to interpret a statute so
8 that the entire statute would not -- would remain
9 intact. If we are to look at the exception of
10 VARA of the public presentation example of
11 17 U.S.C. 10(c), where it says the placement and
12 the lighting are two things. That if it's
13 destroyed, it's not covered.
14 JUDGE SYKES: Well, that's the flaw in the
15 Phillips' court analysis. It held -- or I'm not
16 sure if this was a factual finding based on the
17 expert testimony in the case or if this was a legal
18 conclusion on the interpretation of the statute.
19 It's really hard to sort out that opinion.
20 But the court either found or held that
21 to move site-specific art is to destroy it. And
22 I'm not sure that's right. Why is that right?

8 (Pages 26 to 29)
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1 MS. McGARRY: Well, I think -- 1 JUDGE SYKES: So moving it would modify it.
2 JUDGE SYKES: I mean, the exception says that 2 It wouldn't destroy it.
3 a modification of a work of visual art which is the 3 MS. McGARRY: I think moving would destroy it.
4 result of the public presentation, including 4 It would take what he says are major elements, the
5 lighting and placement. So if a different 5 vents and the skyline, out of his artwork.
6 placement is engineered for the art, it's an 6 JUDGE SYKES: Well, I'm not sure the record
7 exception to liability. 7 supports that conclusion. And as a legal matter,
8 MS. McGARRY: Right. 8 what we're doing here is trying to interpret the
9 JUDGE SYKES: So it implies that what happens 9 statute to see whether this type of art is included
10 when site-specific art is moved is not destruction 10 or excluded.
11 but modification. 11 So again, I'm trying to get a handle on
12 MS. McGARRY: Well, I think you need to -- to 12 whether this is a statutory interpretation argument
13 take into account, though, the definition of 13 or whether this is a fact-based argument about
14 site-specific art. 14 what's in the record. You know, it may be a little
15 JUDGE SYKES: Well, we don't have a definition 15 bit of both.
16 of site-specific art because it's not statutory. 16 MS. McGARRY: I believe it's a little bit of
17 All we have is a bunch of testimony from artists in 17 both. It's a question. Is site-specific art
18 the Phillips case about what site-specific art is 18 covered, and if it is, is this site-specific art?
19 in the artistic community. But, you know, we're 19 So for purposes of argument, we can say
20 not bound by that. 20 this is site-specific art, but then we fall into
21 MS. McGARRY: I believe that we do have some 21 the exception that we can't move it, so it's not a
22 testimony, though, in this case from the artist 22 violation without destroying it. We didn't destroy

Page 31 Page 33

1 himself about how his art is site specific. 1 it out of negligence.

2 JUDGE SYKES: He also maintains that if it was 2 JUDGE SYKES: The exception says you can move
3 moved, it's not a destruction, that it could be 3 it.
4 moved. 4 MS. McGARRY: Pardon me?
5 MS. McGARRY: Well, he testified that he 5 JUDGE SYKES: The exception says you can move
6 rented an airplane and a helicopter and flew around 6 it.
7 the city to choose his spot for his garden. And he 7 MS. McGARRY: It says that it does not apply.
8 chose this spot. 8 JUDGE SYKES: It says the statute doesn't
9 And one of the things that was important 9 apply. A modification of the work that comes about
10 about this spot to him was the three air vents from 10 by virtue of placement is not a destruction,
11 the parking garage along the major axis of the 11 distortion, mutilation or other modification as
12 elliptical shape and the skyline in the back. 12 described in Section A3.
13 There's tremendous amount of testimony on that. 13 So unless you, you know, in the course
14 His expert testified that it was site specific. 14 of moving it, I don't know, drop it or something so
15 If we move it, even as he suggests, that 15 that the whole thing is destroyed, you haven't
16 we can roll it up and take it some place else, 16 violated the statute.
17 where are we going to find three air vents or, 17 MS. McGARRY: But we can't move it without
18 frankly, six, because there were two ellipses, with 18 destroying it because then the vents are gone and
19 that specific axis that he wanted with the 19 the skyline's gone. And everything that he chose
20 buildings and the background? It is site specific. 20 while he flew around in his plane as part of his
21 It involves the location with the art. That's 21 artwork is no longer there.
22 part of his art. 22 JUDGE SYKES: Why isn't that a modification

9 (Pages 30 to 33)
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Page 34 Page 36

1 instead of a destruction, since the statute 1 you're telling us to establish here.

2 specifically says modification? 2 MS. McGARRY: I'm sorry?
3 MS. McGARRY: I believe that the air vents, 3 UNIDENTIFIABLE JUDGE 1: You can't -- you
4 and there was testimony that supported this, were a 4 can't move it.
5 vital part of his artwork. 5 MS. McGARRY: You can't move --
6 UNIDENTIFIABLE JUDGE 1: Well, that would be 6 UNIDENTIFIABLE JUDGE 1: No matter what.
7 because he had to work around it, I suppose. I 7 MS. McGARRY: -- site-specific work without
8 mean, he -- the idea of those being, I guess, 8 destroying it.
9 artistic or symmetrical or something or other, he'd 9 UNIDENTIFIABLE JUDGE 1: There's not gonna be
10 look at a place, you know, Grant Park where 10 any site that's gonna be identical.
11 everybody can see it, a lot of people go by and see 11 MS. McGARRY: You can't --
12 the sign that he did it and everything. That's 12 UNIDENTIFIABLE JUDGE 1: So this kind of a
13 very -- that's a very attractive place to have an 13 sculpture, I guess we're agreeing to call it, can't
14 acre-and-a-half of art. 14 be moved.
15 Obviously, that's more enticing than a 15 MS. McGARRY: Correct, without destroying it.
16 park miles away that not very many people go to. 16 JUDGE SYKES: That's too extreme a position.
17 But if you -- I don't know how you roll it up. If 17 That leaves the modification concept completely out
18 you roll it up and then plop it down somewhere 18 of the exception.
19 else, the absence of those vents is not very 19 MS. McGARRY: And -- and -- and I -- I don't
20 consequential. And certainly, the absence of the 20 agree. I mean --
21 background, whether it's mountains or buildings, is 21 UNIDENTIFIABLE JUDGE 2: Do we have to
22 gonna be different. 22 conclude that to decide the case in your favor? Do

Page 35 Page 37

1 But wouldn't it -- if it could be moved, 1 we have to go that far?

2 wouldn't it remain intact as the way he set it out? 2 MS. McGARRY: Absolutely not. Absolutely not.
3 I don't know about the perimeter. (Inaudible). 3 JUDGE SYKES: Well, propose a middle ground
4 But I'm talking about just the -- whatever is in 4 then where you win.
5 the picture itself. 5 MS. McGARRY: We've got about five more
6 MS. McGARRY: Your Honor, I don't disagree 6 reasons why --
7 with you on that except that the testimony at trial 7 JUDGE SYKES: That was the Phillips case, the
8 from Mr. Chapman, the artist, said the vents in 8 extreme position.
9 the -- on the major axis across the ellipses were a 9 MS. McGARRY: You don't even have to get to
10 part of his artwork. And unless we can find six 10 site specific. It's not even a discussion that has
11 more vents like that that would fit some place, it 11 to be had because VARA, the statute, right off the
12 would destroy his artwork as he sees it. 12 bat wouldn't apply if it wasn't copyrightable.
13 UNIDENTIFIABLE JUDGE 1: Well, in order to 13 JUDGE SYKES: The threshold for originality is
14 preserve the -- I mean, to follow the law and if 14 extremely low.
15 this thing is movable -- and any different place is 15 MS. McGARRY: I understand that. The next
16 gonna be different. But does that mean no matter 16 option would be 17 U.S.C. 113(d)(1)(a), the
17 what, no matter where you move it it's not going to 17 building exception. Where if the work is
18 be -- it's not gonna retain its original integrity? 18 incorporated into a building --
19 MS. McGARRY: I believe so. Anywhere you move 19 UNIDENTIFIABLE JUDGE 2: That garage stands
20 it, unless you can find something exactly the same, 20 quite well without -- without the garden above it.
21 it would be different. 21 Ms. McGARRY: Well, it's actually -- the
22 UNIDENTIFIABLE JUDGE 1: But that's the law 22 reason this whole thing started is because the

10 (Pages 34 to 37)
 AUDIOTAPE TRANSCRIPTION

Page 38 Page 40

1 roof's falling down in chunks in the garage, and it
2 has to be repaired.
3 However, Chapman Kelley's position is it
4 wasn't incorporated into the garage, while our
5 position is because you specifically incorporated
6 the vents that you liked so much over the garage,
7 it is incorporated into the garage. So there is
8 the building exception that it was.
9 Then we get to the exception that it
10 doesn't apply if it was pre-1991. The garden was
11 installed in 1984. VARA didn't come into play
12 until '91. So we're saying VARA wouldn't even
13 apply at all because it was way before.
14 JUDGE SYKES: Well, the statute says that
15 preexisting works get a limited degree of
16 protection, right?
17 MS. McGARRY: Right.
18 JUDGE SYKES: The fact that this was pre-1991
19 doesn't take Wildflower Works completely out of the
20 statute.
21 MS. McGARRY: And then finally, in his
22 contracts or permits that were entered into,
1 and all that. But if he gave up his proprietary
2 right, at some point the Park District would be
3 able to destroy it.
4 MS. McGARRY: Correct.
5 UNIDENTIFIABLE JUDGE 1: Doesn't matter
6 that -- about his integrity or his reputation or
7 anything else. He doesn't have any -- by not
8 having a proprietary right, they have exclusive
9 control to remove it or destroy it or change it.
10 MS. McGARRY: I believe the '88 permit gave
11 him the right to remove the plants if -- if we told
12 him. He could come get his plants.
13 UNIDENTIFIABLE JUDGE 1: Which he didn't want
14 to do.
15 MS. McGARRY: But otherwise, there was no
16 proprietary rights attached to them.
17 UNIDENTIFIABLE JUDGE 1: That was the only
18 alternative. He could remove it, which made it
19 removable, I guess.
20 JUDGE SYKES: So the plants were his.
21 MS. McGARRY: The plants were his if he chose
22 to get them. He was asked to get them many times,

Page 39 Page 41

1 specifically the '88 permit, which was the one that
2 was a result of a lawsuit that Mr. Kelley filed
3 previously, there were specifically no proprietary
4 rights granted to Mr. Kelley in this garden. That
5 was something he agreed to.
6 The permit was renewed again in '89. It
7 was renewed again in '90. And then in '92 it was
8 renewed for the last time. So it expired in 1994.
9 We're saying he waived any rights.
10 JUDGE SYKES: The statute doesn't require that
11 the artist still hold the title.
12 MS. McGARRY: The statute, though, does allow
13 him to change his rights by contract. And we're
14 saying because he accepted a permit that gave up
15 his proprietary rights, then --
16 JUDGE SYKES: Before the statute was enacted?
17 MS. McGARRY: The '92 permit was the -- the
18 renewal.
19 JUDGE SYKES: The rollover.
20 MS. McGARRY: Was a rollover.
21 UNIDENTIFIABLE JUDGE 1: So if he had gotten
22 paid for this -- and I don't know about maintenance
1 and he didn't want them. He did testify at trial
2 that to take them now would be mean. We weren't
3 really sure what that meant.
4 UNIDENTIFIABLE JUDGE 1: But the difference is
5 another right -- (inaudible) -- where it's
6 dependent on the structure, you couldn't remove it
7 because that would damage the structure, I assume,
8 or alter the structure.
9 MS. McGARRY: Well, he could have taken the
10 plants but -- and he's arguing that --
11 UNIDENTIFIABLE JUDGE 1: Can he take a foot of
12 dirt with it?
13 MS. McGARRY: He's arguing, though, that the
14 plant aren't just the art. His art was made up of
15 other things. So he could take one element of his
16 art.
17 UNIDENTIFIABLE JUDGE 1: Well, he could -- I
18 don't know -- see, the movability here is hard for
19 me. But assuming he could roll it up like they do
20 sod, and then roll it back, then it's more than
21 plants. It's -- the whole thing puzzles back
22 together, I guess.

11 (Pages 38 to 41)
 AUDIOTAPE TRANSCRIPTION

Page 42 Page 44

1 MS. McGARRY: Yeah. I don't think there was
2 ever any discussion on how exactly if he were to
3 remove the plants, because he never wanted them,
4 what exactly would happen, could he take dirt,
5 could he take the grass or anything with it.
6 UNIDENTIFIABLE JUDGE 1: Of course, your
7 people are complaining you got weeds and other
8 stuff in there.
9 MS. McGARRY: It was -- Mr. Kelley maintained
10 the garden for certain years with volunteers, and
11 then he did stop. And after that it did become the
12 Park District's responsibility, and it did get
13 quite weedy. So that was an issue.
14 Finally, we get to the issue of damages.
15 JUDGE SYKES: If I could just clarify
16 something about the 1988 permit that was issued by
17 the Park District in connection with the
18 settlement.
19 MS. McGARRY: I believe -- there was a lawsuit
20 in 1988 that he filed. And I believe part of the
21 agreement was we'll give you another permit.
22 JUDGE SYKES: Oh, so it was something that the
1 evidence of damages at trial regarding the contract
2 claim. There was no evidence of what it would cost
3 to remove them as he had the right to remove them.
4 There was no cost of what it would take to retrieve
5 them. There was no cost of what it would take to
6 remediate the land, which was a requirement of the
7 '88 permit that kept getting renewed.
8 JUDGE SYKES: What kind of an implied contract
9 theory was this exactly? I have a hard time
10 figuring that out from the district court's order.
11 And the measure of damages is different for
12 different kinds of implied contracts.
13 MS. McGARRY: Right.
14 JUDGE SYKES: And so in order to decide
15 this -- I mean, there's statutory issues, as you've
16 argued, that are impediments to the contract claim
17 here.
18 But let's say Mr. Kelley can get over
19 the statutory hurdles. Is this a promissory
20 estoppel theory? Is this an implied in law
21 contract, an implied in fact contract, some other
22 kind of quality contractual theory? I don't know.

Page 43 Page 45

1 Park District issued to him, not something that he 1 MS. McGARRY: We're struggling with that, too,
2 signed? 2 your Honor. We're not far behind you. What I
3 MS. McGARRY: That's what I understand, yes. 3 believe is they're trying to set forth some sort of
4 JUDGE SYKES: Then there isn't a waiver 4 an implied contract theory that --
5 because a waiver under VARA has to be in writing 5 JUDGE SYKES: There's a whole lot of those,
6 and expressly done. 6 and the measure of damages is different for each
7 MS. McGARRY: I believe he presented to the 7 one. And often it's a reliance based kind of a
8 board of the Park District, and there are minutes 8 measure, which we don't really have in this
9 that are also in the appendix. 9 context.
10 JUDGE SYKES: He didn't actually sign and 10 MS. McGARRY: I'm sorry, we have or we do not?
11 execute a waiver. The City -- or the Park District 11 JUDGE SYKES: We don't have reliance damages.
12 issued a permit and then that was -- 12 MS. McGARRY: I -- I don't know if they're --
13 MS. McGARRY: And he accepted it. 13 you know, they're putting forth and -- and, quite
14 JUDGE SYKES: -- renewed. 14 honestly, we've -- in all the post-trial briefing
15 MS. McGARRY: Yes. 15 and everything, the damages numbers have moved from
16 JUDGE SYKES: Was renewed every year. But 16 a million-and-a-half to 25 million to all over the
17 that's not -- I mean, it might be a waiver under 17 place. We've never been able to really figure out
18 some other doctrine, but it's not a waiver of the 18 what they're asking for in damages and what they're
19 statutory rights. 19 putting forth.
20 MS. McGARRY: Okay. 20 There's the contract issue that they say
21 JUDGE SYKES: Okay. 21 Margaret Burroughs bound them over in a contract,
22 MS. McGARRY: To get to damages, there was no 22 blah, blah, blah, which, obviously, we disagree

12 (Pages 42 to 45)
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Page 46 Page 48

1 with because we don't believe that one commissioner 1 CERTIFICATE OF OFFICER

2 could possibly bind the whole board. Especially a 2
3 commissioner at a social event that they went and 3 I, AMY K. ZUMBROCK, a Certified
4 tracked her down and walked in and said, "Hey, do 4 Shorthand Reporter of the State of Illinois, do
5 we need a permit?" 5 hereby certify that I transcribed the audio
6 If there's an estoppel issue, it doesn't 6 recording aforesaid, and that the foregoing is as
7 really make much sense that there is one because 7 true and complete a transcription as possible from
8 Mr. Kelley knew how to apply for permits. He had 8 the audio recording under my personal direction.
9 applied for permits before. And he certainly knew 9 IN WITNESS WHEREOF, I do hereunto set my
10 going to a social event and tracking down a 10 hand at Chicago, Illinois, this 30th day of
11 commissioner was not the proper way to get a 11 September, 2009.
12 permit. So he knew that wasn't correct. 12
13 I believe they're just upset that -- you 13
14 know, and they're putting the permit in there, that 14
15 we violated it, and that we shouldn't have moved 15 Certified Shorthand Reporter
16 it. What is their exact contract claim? Your 16
17 Honor, we've never gotten a really clear answer on 17 C.S.R. Certificate No. 84-4356.
18 it. Thank you. 18
19 JUDGE SYKES: Thank you. 19
20 MR. MARCUS: Your Honors, I believe my time is 20
21 very limited, so I will simply state this. 21
22 JUDGE SYKES: One minute. 22

Page 47

1 MR. MARCUS: The City -- thank you. The City

2 does not -- did not and cannot provide the middle
3 ground which this court asked for. The truth of
4 the matter is is that VARA was drafted to protect
5 site-specific art. This minimal exception does not
6 preclude it from any type of protection. That's
7 just an erroneous view of the law.
8 With respect to the last comment made,
9 well, they're upset we moved it. We're not upset
10 they moved it. We would have loved the opportunity
11 to have moved it. They came, they destroyed it
12 where it sat for 20 years. They destroyed
13 Mr. Kelley's work, his entire lifetime's work in a
14 matter of days. That is what we are complaining
15 about. With that I'll rest. Thank you.
16 JUDGE SYKES: Thank you, counsel. And our
17 thanks to both counsel. The case is taken under
18 advisement.
19 END OF AUDIO RECORDING
20
21
22

13 (Pages 46 to 48)
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A 33:7,9 37:12 38:10,13 B category 14:16 22:6,7

ability 4:16 15:12 46:8 back 25:15,20 31:12 causes 9:5 common 24:7
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absence 34:19,20 approval 21:17 backwards 17:6 certainly 8:16,17 11:17 47:14
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appendix 43:9 authority 18:21 19:4 7:20 8:2,11 9:3 14:7 23:13 counsel 47:16,17
application 4:7 28:7 19:11,19 20:22 22:18 17:3 18:11 21:5,8 commissioner 3:9 counter-appeal 3:4
applied 7:19 46:9 22:19,22 23:11 27:4,13 28:14 29:17 18:12 19:8,11,22 22:1 course 15:3 33:13 42:6
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 AUDIOTAPE TRANSCRIPTION
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15:11 16:3,20 17:7,14 determination 20:19 enticing 34:15 factual 29:16 37:20 38:10 39:4
18:7 20:18 24:8 determine 17:2 entire 10:22 15:13,16 fact-based 32:13 42:10
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