From lawyer, journalist and occasional pen-friend of the IPKat Jeff John Roberts comes the exciting news of something almost as unusual as an admission from the US Patent and Trademark Office that its patent system is out of step with the rest of the world -- a truly rare US moral rights case,Chapman Kelley v Chicago Park District (here).

The disputants here were the City of Chicago, no less, and the creator of two very large oval gardens known as "Wildflower Works" (right), located in the city's main park.  Chapman Kelley for years oversaw volunteers who filled the gardens with hundreds of types of flowers capable of surviving the city's tough climate. The result was an evolving and ongoing spectacle that delighted city residents and received praise in the press.

One day, Jeff John explains, the city decided the lovely gardens had to be scaled back to make room for the new Millennium Park. Kelley's grand ovals were turned into squares and reduced to about half the original size. Kelley invoked his right of integrity under America's little-used Visual Artists Rights Act (VARA), a piece of legislation that Congress reluctantly passed in order to comply with the Berne Convention.

At first instance the district court found for the city: while Kelley's creation was indeed both a painting and a sculpture, it lacked originality and was in any case ineligible for protection because it fell under a site-specific art exception under VARA. The 7th Circuit rejected both these findings, spending a healthy amount of time knocking around the district judge while doing so. The appellate court suggested that the site-specific exception was intended for works incorporated into buildings and, in regard to the originality finding, the judge had erroneously equated originality with novelty; the law however is clear that a work can be original even if it is not novel.  But all this is essentially obiter because:

"The Park District has not challenged the district court’s conclusion that Wildflower Works is a painting and a sculpture. This is an astonishing omission ... 

The real impediment to copyright here is not that Wildflower Works fails the test for originality (understood as “not copied” and “possessing some creativity”) but that a living garden lacks the kind of authorship and stable fixation normally required to support copyright ... 

Simply put, gardens are planted and cultivated, not authored. A garden’s constituent elements are alive and inherently changeable, not fixed."

Finally, the decision contains a guest appearance by serial copyright litigant Jeffrey Koons, noting that, while Wildflower Works is ineligible, more sturdy topiary works like Koons' 42-foot floral "Puppy" (above, right) did meet the fixation requirement.

Thanks, Jeff John, for this fascinating insight into US horticulture!  Merpel adds, in previous generations the City of Chicago has had to tussle with opponents like Al Capone and Baby Face Nelson.  Even so, it must have thought it would be easier to get the better of a bunch of flowers ...

The British Journal of Photography reports that Getty Images is pursuing a copyright claim against the campaigns of US Senate candidates Sharron Angle and David Vitter, alleging that they used one of its photographic images out of context and without a proper licence.  According to the report's author, Olivier Laurent, British photographer Chris Floyd shot a story for the British version of GQ magazine back in 2006 called "The Minutemen".  This story focused on a citizen group whose main concern was illegal immigration into the US. It appears that Floyd, accompanied by a journalist, visited the Mexican town of Altar, a place of transit for would-be illegal immigrants heading for the border. The image shown here was published in GQ before being made available through Getty Images for editorial (and presumably therefore non-political) purposes only.

Illegal? Immigrants? How can you tell when all you can see is the photo?

It now transpires that the photo was used in the Republican senate campaigns of Sharron Angle (Nevada) and David Vitter (Louisiana). In Angle's case the subjects of the photograph are labelled ‘Illegal Aliens’, even though the Getty picture caption clearly states the portrait is of three Mexican citizens and that it is taken in Mexico. says Floyd. Alleging copyright infringement, Getty Images has filed a claim with video hosting services such as YouTube, which have now removed the offending videos of the ads. Floyd adds that his own credibility as a photojournalist has been compromised by the demonstrably false statement that the men portrayed in the commercials were illegal aliens.

The IPKat notes that, in the United Kingdom, the author of a work (in this case, the photographer) enjoys under the Copyright, Designs and Patents Act 1988, s.80, the right to object to derogatory treatment of his work. for the purposes of that section, s.80(2) defines treatment:

"(a)“treatment” of a work means any addition to, deletion from or alteration to or adaptation of the work, other than—
(i)a translation of a literary or dramatic work, or
(ii)an arrangement or transcription of a musical work involving no more than a change of key or register; and
(b)the treatment of a work is derogatory if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director".

The IPKat wonders whether the caption of a photograph, being a literary work, can in generaly be regarded as part of a photograph, which is an artistic work, for moral rights purposes. He also wonders whether, if no caption is given to the photograph by the photographer, the subsequent mis-captioning of a photograph to which no further change is made could qualify as a "treatment", however derogatory it may be. 

Merpel isn't as interested in the copyright aspect as much as in the value of an illustration which doesn't effectively illustrate.  The photograph above could equally well be captioned "Mexican lads in Altar", "Illegal Aliens", "Hispanic lads in San Diego" or "Alfonso, Pedro and Diego on holiday in Bournemouth" -- and no reader would be any the wiser.  So what does it illustrate?

"In the UK, moral rights mean the author has the right to be identified as the producer of a work and can object to the work being used in a way they oppose [Correct. The Copyright, Designs and Patents Act 1988 categorises two other rights as moral rights, but they are not the moral rights of the author: (i) the right not to be attributed as author of something he hasn't writtten and (ii) the right to privacy in certain commissioned photographs]. Under British law moral rights are waivable, normally as the result of a contract between the parties.

The UK Government’s copyright strategy “© the future” noted that moral rights may be causing difficulty between the rights holder and the author, as well as between the author and the consumer and business [Well, that's most people, the Kat guesses ..].

During debate on the Digital Economy Bill, the Government agreed that further work could be done on moral rights. The aim of this workshop is to explore the key issues and to help inform future policy thinking in this area.

Mr Lammy [currently Minister for IP] said there has been a debate over whether to alter moral rights but there was little evidence over the impact this would have on the recognition or remuneration of creators [while the IPKat generally welcomes the move towards evidence-based policymaking, he wonders what sort of evidence is needed with regard to the legal entrenchment of matters of morality, such as whether it is right for a person to state falsely that he is the author of another's work].

He said: “The debate over moral rights is not an abstract one – it is something that impacts on us all. Anyone who blogs, Tweets or posts on Facebook is affected by moral rights [as indeed is anyone who sprays grafitti --or writes legal textbooks].

“There has been debate over changing how moral rights for creators work in the UK but we need more evidence before making any decisions. Today’s event will help by looking at how moral rights are applied in other countries as well as hearing the views of people working in Britain. I hope the discussions will provide real insights and help guide further work in this area.”

Joly Dixon, Chairman of SABIP, said: ...It is vital that those in Government have balanced and independent evidence to better inform their policy making. I look forward to a constructive and open debate.”

The IPKat notes a letter in today's Times from the Musicians' Union and the Features Artists' Coalition, protesting at the use of songs by the their members on a compilation put together by the British National Party.

They note that many of their members 'have no legal right to object to their music being used in this way' and add that:

'we would also like to raise awareness of the terribly low level of moral rights accorded to musicians in this country and we call for these to be reassessed so that musicians are able to object to their music being used in situations which contravene their beliefs and morals'.

The IPKat can see the correspondents' point of view. If one can object to one's trade mark being used in an unsavoury context, then why not one's literary, musical or artistic work or one's performance, which if anything, is more personal to the author than a trade mark is to the company that it represents. The Kat seems to remember the Musicians' Union raising just this concern at the time that performers' moral rights were brought into force in the UK. The IPKat is somewhat puzzled though. Can the performers not rely on their economic rights? If they've dispensed with them, can they not persuade their labels to take action? Aside from the political ramifications, sure they record labels and the authors of the underlying copyright works don't want the BNP making use of their copyright-protected works for free.

The IPKat is intrigued by a story sent to him by Mariona Baldo (thanks Mariona!) concerning copyright in a Spanish bridge. Architect Santiago Calatrava unsuccessfully sued the city council of Bilbao and two construction firms after they added a footbridge to a bridge over the River Ria that he designed. Although the judge found "There has been an appreciable alteration of the work…which changes its unmistakable personality…it has ceased to be a self-contained work,” he ultimately found that there had been no violation of Calatrava’s right to integrity because the public interest required an addition to the bridge to allow pedestrians to traverse sufficiently freely. Said the judge:

"The alteration has occurred; but the right to the integrity of the work is not violated, the author being obliged to bear it in the interest of the public served by the bridge."

This is Spain’s first case about the right of integrity concerning engineering works.

The IPKat is glad that common sense has prevailed here. It would make life extremely difficult if architects could object to alterations to buildings which others have commissioned from them, and would enable them to control other people’s ‘real property’. More fundamentally, the IPKat questions the wisdom of granting a right of integrity over works of architecture in the first place. This wouldn’t be such a problem in the UK since an architect’s right of integrity only gives him the right to have his name removed from buildings which have been altered in a way which is derogatory to his reputation.