Saturday, February 19, 2011
Millennium Park Garden Deemed Not Copyrightable, Because Gardens Are Not Authored
Techdirt: "Eric Goldman points us to a fascinating ruling concerning whether or not an artistic garden can be covered by copyright (pdf). The ruling itself (embedded below) is interesting for a variety of reasons. It goes over the basics of 'moral rights' in US copyright in great detail. As most people know, for the most part, the US does not recognize moral rights -- even though the Berne Convention (which the US has tragically signed on to) requires it. Partly to get around this, the US did put in extremely limited moral rights for a very small subset of works, and part of this case revolves around that.
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4 comments:
I agree with the ruling that gardens should not be copyrighted. Gardens can be art, and authored in my mind, but they change. Plays may change from theatre to theatre, but the work that is copyrighted is the backbone of the production and not meant to be changed. The backbone of a garden is meant to change, its living and growing If Chicago decided to change the garden because it was time, they should have all right to do so. A garden can only be original in the initial design, after that it is just nature.
This is a tricky one here... I understand what the appeals court is saying, but I don't agree with it 100%. The ruling states "A garden's constituent elements are alive and inherently changeable, not fixed." While it is true that because it is out in nature and the plants are alive it is 'inherently changeable', the artist did design the garden. While it might change slightly, the fact still remains that the artist chose to put plant A next to plant B, while plant X was next to plant Y. That does not change. That was a specific design by a specific person.
The statement goes on to say "Most of what we see and experience in a garden--the colors, shapes, textures, and scents of the plants--originates in nature, not in the mind of the gardener." Once again, they are right that these are naturalistic elements, but the combination of the look and smell of the plants were the result of the artist. The individual elements are from nature, but the artist chose to put certain plants next to others, and the mixture of those scents creates a new scent, one in which the artist planned out and designed. He may have chose to put a yellow flower next to a purple one, because they are complimentary colors. That is an artistic choice. I'm not sure with who I side with here. Both parties have valid arguments on there side, and I don't think it's a black or white solution.
I'm not quite sure if I agree with this ruling or not. Like Tiffany, I do understand that the elements in a garden are natural and therefore can't be copyrighted or controlled by a person, but at the same time the designer composed the garden, just like a musician composes a song. Also, if set designs can be copyrighted, then why can't a garden design?? Aside from medium and purpose, how are these designs different? It would have been a good idea to consult the designer if his design had to be changed. He probably would have worked with Millenium Park and come up with something new. Again, I get that gardens change simply because they are part of nature. I really find myself going in circles on this topic, and I with Tiffany on the fact that both parties involved have legitimate arguments and concerns.
I will echo some of the sentiments of my classmates. It's a tough call. I am torn as to which way I fall on the ruling. But I think I'll break it down like this:
The idea, the plans, and any reimplementation should be the property of the artist, but the changing nature of plants and gardens means that the actual physical creation by the artist should not be under his/her control.
Perhaps I am over simplifying things, but I think I may be on the right track here...
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