sufficient fixation for copyright (we venture no opinion on the question), but Wildflower Works is quite different. It is quintessentially a garden; “Puppy” is not.
In short, Wildflower Works presents serious problems of authorship and fixation that these and other examples of conceptual or kinetic art do not. Because Kelley’s garden is neither “authored” nor “fixed” in the senses required for basic copyright, it cannot qualify for moral-rights protection under VARA.
- 5. Site-specific art, and the public-presentation and building exceptions
This case also raises some important questions about the application of VARA to site-specific art, as well as the statute’s public-presentation and building exceptions. Though we need not decide these questions, we do have a few words of caution about the district court’s treatment of the issue of VARA and site-specific art. The court classified Wildflower Works as a form of site-specific art; we see no reason to upset this factual finding. The court then adopted the First Circuit’s holding in Phillips that site-specific art is categorically excluded from VARA. This legal conclusion is open to question.
Phillips involved a VARA claim brought by artist David Phillips in a dispute over a display of 27 of his sculptures in Boston’s Eastport Park across from Boston Harbor. Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128, 130 (1st Cir.2006). A planned redesign of the park called for the removal and relocation of Phillips’s sculptures; he sought an injunction under VARA, claiming the removal of his sculptures would violate his right of integrity. Id. at 131. The district court held that although the sculptures qualified as a single integrated work of visual art, park administrators were entitled to remove them under VARA’s public-presentation exception. Id. at 138–39. The First Circuit affirmed on alternative grounds, holding that VARA does not apply to any site-specific art.
The court based this holding on a perceived irreconcilable tension between the public-presentation exception and the purpose of site-specific art: “By definition, site-specific art integrates its location as one of its elements. Therefore, the removal of a site-specific work from its location necessarily destroys that work of art.” Id. at 140. Under the public-presentation exception, a modification of a work of visual art stemming from a change in its “public presentation, including lighting or placement,” is not actionable unless it is caused by gross negligence. If VARA applied to site-specific art, the First Circuit reasoned, then the statute would “purport[ ] to protect site-specific art” but also “permit its destruction by the application” of the public-presentation exception. Id. The court held that “VARA does not protect site-specific art and then permit its destruction by removal from its site pursuant to the statute’s public presentation exception. VARA does not apply to site-specific art at all.” Id. at 143.
There are a couple of reasons to question this interpretation of VARA. First, the term “site-specific art” appears nowhere in the statute. Nothing in the definition of a “work of visual art” either explicitly or by implication excludes this form of art from moral-rights protection. Nor does application of the public-presentation exception operate to eliminate every type of protection VARA grants to creators of site-specific art; the exception simply narrows the scope of the statute’s protection for all qualifying works of visual art. The exception basically provides a safe harbor for ordinary changes in the public presentation of VARA-qualifying artworks; the artist has no cause of action
