Council for Artists' Rights Visual Artists Rights Act plaintiff/artists rights advocate blacklisted by Chicago Tribune newspaper

Despite predating Millennium Park's Lurie Garden by 20 years, reporter ignores public artwork Chicago Wildflower Works July 10, 2011 Dear ally of artists' rights: As the artists' rights movement in the U.S. winds its way through the federal court system via Chapman Kelley v Chicago Park District (CPD)--triggered by the CPD's destruction of Kelley's Chicago Wildflower Works (1984 - 2004) (CWW) artwork in 2004--a petition for the Supreme Court of the United States to review the dispute will be filed later this month by Kelley's legal team, a days-old newspaper article surfaced about the handsomely commissioned Lurie Garden located in Chicago's Millennium Park. Included in the article are statements made by the garden's designer, landscape architect Piet Oudolf, who says the Lurie is a work of art. Barbara Mahany wrote the Chicago Tribune Sunday edition article of July 3, 2011, "Plantsman and Painter." A striking portion of her description of the Lurie and quotes from its creator are a perfect fit for describing Chapman Kelley's 66,000 sq. ft. CWW. For example, Mahany wrote, "...[he] creates works of art, and plants are the medium of his ever-evolving palette...It's as if you are watching a painter step back from the canvas, making sure that dab of blue is just as he wants it...transform this blank canvas...who would be so bold as to put tens of thousands of so-called roadside plantings...the context makes your work more important...the city makes it matter...attracting millions [of passersby]...tries to make gardens like a painting that you can enter...it's sort of like looking at an impressionist painting, or being in one...paints not with a palette of persnickety prima donna plants but with hardworking durable plants for their character, their substance, the way they age over time...nature-inspired palette..." With such wording that is virtually interchangeable between the CWW and the Lurie, why would Mahany and Chicago Tribune editors choose to ignore CWW and its place in Chicago art history which has withstood the test of time, in fact, 20 years? However, there are marked differences between CWW and the Lurie. An important distinction is the CWW was installed as a noncommissioned work, at no cost to Chicago taxpayers, was self-funded by Kelley and maintained for two decades by

volunteers under his direct supervision. Imagine if a "usual park design" garden were to be in place of the CWW. Conservative maintenance and watering cost estimates reveal a significant layout to taxpayers. At $5 per sq. ft., multiplied by 66,000 sq. ft. the amount would be $330,000 per year. Across 20 years the grand total would be $6,600,000. By being "free" to taxpayers, CWW avoided that cost! According to Wikipedia, the Lurie cost $13.2 million and has a $10 million endowment for annual maintenance and upkeep. Another difference is that Kelley tended to the CWW on a daily basis nine months, obviously hands-on experience, each year for 20 years. By Mahany's account, Oudolf manages to visit his creation only once every few years. Another significant distinction is the CWW used no insecticides or herbicides and thrived solely on rainwater. The Lurie is critically dependant on a consistent watering regime which gluttonously uses up precious resources costing thousands of dollars each and every growing season. Kelley's Wildflower Works emerged in Texas with national recognition in 1976--a concept which was arrived at during Kelley's very successful career, beginning in 1957, as a professionally trained and exhibited painter . Prominent art collectors Joseph H. Hirshhorn and his wife Olga--who endowed the Hirshhorn Museum and Sculpture Garden at the Smithsonian Institute in Washington, D.C.--observed about Kelley's Dallas/Ft. Worth International Airport Wildflower Works on April 4, 1977, "...Being as familiar as we are with Chapman Kelley's work, we feel that the whole idea relates definitely to his painting--definitely an extension of his work..." Kelley was subsequently invited to Chicago to install CWW by then-Continental Bank executive John Swearingen and his wife Bonnie. He enlisted as advisors the best plant scientists including Dr. Thomas Jefferson Allen. Given the high volume and international range of publicity the CWW has garnered both before and after its destruction, including a federal bench trial and appeal process, it is difficult to believe that Chicago Tribune's writer Barbara Mahany was unaware of CWW's existence. How did she miss the numerous articles in the Chicago Tribune across 20 years, including a front page color illustration and write up? A more plausible answer is that Mahany and her editors are "going along to get along," fearing a Chicago political structure that crushes those who disagree with the status quo. Before detailing the local politics involved in the destruction of the CWW, some background on the reality of the blacklisting of Kelley (in Dallas, Texas and Chicago, Illinois) is in order. During the late 1940s and early 1950s U.S. Senator Joseph "Joe" McCarthy accused many Americans of engaging in "un-American" behavior, often with little or no evidence; careers were ruined including those in the U.S. entertainment industry. Subsequently the federal courts overturned the flawed convictions and

McCarthy was defeated, through his backers, by trial lawyer Louis Nizer, on behalf of Texan and popular radio and talk show personality John Henry Faulk, who was blacklisted himself. A jury awarded Faulk $3.5 million, three times what his attorney had requested. Faulk's book "Fear on Trial" was subsequently made into a CBS television docudrama; ironically CBS had fired him during the "McCarthy era." Faulk went on to become a very successful 1st Amendment expert. He was a friend of Chapman Kelley. In reaction of Kelley's Wildflower Works concept, Faulk penned a note to him: "12/19/79 Dear Chapman, Candace & Bonnie--Absolutely smashing! The superb piece in the Downtown News, that is. Many thanks for sending it. Actually until I read it I never realized just what a totally original mind our Chapman is! My warm affection and fondest Christmas greetings to the three of you, (Signed) John Henry Faulk P.O. Box 187, Madisonville, Texas 77864 713-348-5554" For his successful fight against being blacklisted, Faulk became known as an American hero. In the end Joe McCarthy's reign of terror was thoroughly refuted and rejected. He eventually was censured by his United States Senate colleagues. McCarthy died a bitter and abandoned man. The strong political element involved in the destruction of CWW is undeniable. It is intriguing that Federal Bureau of Investigation agent Mr. Diwik places former Chicago mayor Richard M. Daley and Shirley "the executioner of the CWW" McMayon, in May of 2004, walking across Millennium Park's British Petroleum Bridge from Lurie Garden--as they gazed upon both garden sites. In May, CWW was beginning to bloom in all its glory which outshone the water guzzling Lurie. Daley, according to Agent Diwik, ordered McMayon to "change CWW to be like the usual park design," which she did. Further, in response to a request for documents in his artists' rights lawsuit, the CPD unexpectedly provided, as a matter of public record, a "smoking gun" contractor's document that intimates then-Chicago mayor Richard M. Daley was aware that the CWW was to be destroyed, and had discussed possible replacements with CPD employee Shirl McMahon, who later was found guilty of accepting bribes in connection

with CPD work and sentenced to a term in a federal penitentiary. The previous year, in 2003, Daley was a factor in another controversial CPD destruction--the midnight closing of Chicago's downtown lakefront airport, Meigs Field, in which bulldozers tore up runways--without giving a 30-day notice. According to the Chicago Sun Times, September 19, 2006, the Daley administration agreed "to pay a $33,000 fine and repay $1 million in federal airport development grants--to settle claims stemming from Mayor Daley's infamous midnight destruction of Meigs Field in March 2003." It is interesting that the CPD garnered international recognition from its "living art," via CWW, for 20 years and now in court say that CWW never was or could be a work of art because it was made of flowers (as well as steel and gravel). Yet they insist that their annual commissioned program, "Art in the Park" which included plantings-were, the flowers--works of art, but the flowers of CWW are not art. It seems that the choice to have a Lurie Garden, was the proximate reason--after many CPD multimillion dollar plant failures throughout the city--to have the CWW destroyed. Is this the same old song, 2nd verse, will the CPD defend the Lurie under VARA in 2031? Some legitimate questions need to be answered by Mahany and the Chicago Tribune editors such as,does Oudolf have professional training and recognition in the arts? Or is he merely capitalizing on a garden project calling it art while embarked on a promotional tour of his book? Given that the Seventh Circuit Court's adverse decision in Kelley on the grounds that CWW was not 'authored' by him, did Oudolf or instead a magical seed "author" the Lurie Garden? Although both artworks received official park district approval to proceed and remain in place, it appears the Chicago Park District is playing politics with its outdoor public art; as it had let stand for 20 years Kelley's noncommissioned CWW only to destroy it in 2004 and then allow the commissioned Lurie to continue. Perhaps the Supreme Court of the United States will want to query park district policy makers about the obvious discrepancy. Will it ask the park district to define hypocrisy? Recently Chinese artist Ai WeiWei was released from custody by the Chinese government after he was imprisoned for over two months on unspecified charges. WeiWei had previously spoken out against the Chinese government's stance on democracy, human rights and the 2008 Beijing Summer Olympic Games. Given that China violates human rights, artists such as WeiWei have virtually no artist rights. Unlike WeiWei however, Kelley's artist rights are supposed to be protected by the Visual Artists Rights Act of 1990 or VARA. The U.S. courts must strive to reach an accommodation with artists and not invent reasons or scheme to deny artists' rights. The U.S., via the federal court system, must abide by VARA in order to avoid the

perception of being hostile to artists. Regarding Kelley v CPD, if the courts are going to control the material and image an artist uses, then it becomes they who de facto control the content. Is that not a violation of our 1st Amendment rights to free speech? It seems that the courts, institutions and art market manipulation have gained complete control of the most and necessarily independent human activity, creativity. The Council for Artists' Rights is based in Chicago, IL USA. Its thrust is to educate the public about artists' rights and advocates for artists whose work is in distress. CFAR was spontaneously born in 2004 when devotees of public art learned a city park district had irrevocably altered--without its creator's permission--a 20 year old work of public art. Recognition of CFAR founding member John Viramontes Honoree, Chicago Latino List 2009 created by Esther J. Cepeda of The Washington Post Writers Group Make a Tax-Deductible Donation The Council for Artists Rights is fiscally sponsored by Fractured Atlas, a 501 (c) (3) public nonprofit. Making a small donation is easy and can be done safely online. All contributions are tax deductible to the extent permitted by law. We will never sell, trade or rent your contact information.