any distortion or modification of his work that would be “prejudicial to his … honor or reputation,” and to recover for any such intentional distortion or modification undertaken without his consent. See 17 U.S.C. § 106A(a)(3)(A).
The district court held a bench trial and entered a split judgment. The court rejected Kelley’s moral-rights claim for two reasons. First, the judge held that although Wildflower Works could be classified as both a painting and a sculpture and therefore a work of visual art under VARA, it lacked sufficient originality to be eligible for copyright, a foundational requirement in the statute. Second, following the First Circuit’s decision in Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128 (1st Cir.2006), the court concluded that site-specific art like Wildflower Works is categorically excluded from protection under VARA. The court then held for Kelley on the contract claim, but found his evidence of damages uncertain and entered a nominal award of $1. Both sides appealed.
We affirm in part and reverse in part. There is reason to doubt several of the district court’s conclusions: that Wildflower Works is a painting or sculpture; that it flunks the test for originality; and that all site-specific art is excluded from VARA. But the court was right to reject this claim; for reasons relating to copyright’s requirements of expressive authorship and fixation, a living garden like Wildflower Works is not copyrightable. The district court’s treatment of the contract claim is another matter; the Park District is entitled to judgment on that claim as well.
I. Background
Kelley is a painter noted for his use of bold, elliptical outlines to surround scenes of landscapes and flowers. In the late-1970s and 1980s, he moved from the canvas to the soil and created a series of large outdoor wildflower displays that resembled his paintings. He planted the first in 1976 alongside a runway at the Dallas-Fort Worth International Airport and the second in 1982 outside the Dallas Museum of Natural History. The wildflower exhibit at the museum was temporary; the one at the airport just “gradually petered out.”
In 1983 Kelley accepted an invitation from Chicago-based oil executive John Swearingen and his wife, Bonnie—collectors of Kelley’s paintings—to come to Chicago to explore the possibility of creating a large outdoor wildflower display in the area. He scouted sites by land and by air and eventually settled on Grant Park, the city’s showcase public space running along Lake Michigan in the center of downtown Chicago. This location suited Kelley’s artistic, environmental, and educational mission; it also provided the best opportunity to reach a large audience. Kelley met with the Park District superintendent to present his proposal, and on June 19, 1984, the Park District Board of Commissioners granted him a permit to install a “permanent Wild Flower Floral Display” on a grassy area on top of the underground Monroe Street parking garage in Daley Bicentennial Plaza in Grant Park. Under the terms of the permit, Kelley was to install and maintain the exhibit at his own expense. The Park District reserved the right to terminate the installation by giving Kelley “a 90 day notice to remove the planting.”
Kelley named the project “Chicago Wildflower Works I.” The Park District issued a press release announcing that “a new form of ‘living’ art” was coming to Grant Park—“giant ovals of multicolored wildflowers” created by Kelley, a painter and “pioneer in the use of natural materials” who “attracted national prominence for his efforts to incorporate the landscape
