Shape shifters: searching for the copyright work in kinetic living art

In Kelley v. Chicago Park District, the Seventh Circuit held that the changeable nature of a living wildflower garden meant it lacked sufficient "stable fixation" to be a copyright work. This article challenges that conclusion, explaining how the court incorrectly distorted the statutory definition of fixation. It argues that a more persuasive explanation for Kelley is an assumption that gardens are fundamentally precluded from being a copyright "work." This article interrogates that assumption. It closely probes the meaning, boundaries, and importance of the "work" in copyright, and the difficulties in defining it. In doing so, the article expands nascent, but growing, scholarship on the copyright work itself as a discrete area of enquiry. The definition of the copyright work is elusive, and it is suggested that it may only be possible to define it as the intellectual conception of an author that emerges from copyright's exclusionary filtration process. However, the article identifies other pressures that contain the copyright work. It argues that works must also be identifiable, a condition problematized by kinetic creations, and it notes that a persistence in conflating the work and copyright's enumerated subject matter has the practical effect of binding the work to those listed items. The article then considers the broader implications of Kelley for copyright in kinetic contemporary art, particularly when that kinesis is generated by living elements. The article argues that copyright works can be kinetic, and that kinetic works can be fixed, provided the work is identifiable in the changeable creation. It then investigates some of the broader practical and policy ramifications flowing from conferring copyright on gardens and other creations incorporating elements of living kinesis, and explains how the theoretical possibility of copyright (and moral rights) in gardens is probably eclipsed by a number of practical obstacles, all of which are ultimately founded on an anxiety about enclosing and maintaining certainty in subject matter.