Jewish Process Thought and Copyright Policy
What is the scope of copyright protection for copyrighted works that are designed to be continually developing? Can fluid works of authorship even be capable of copyright protection? Not much has been said or written about how copyright should address works of authorship that are, by their very essence, continually in progress or otherwise subject to change on an ongoing basis. In 2011, the Seventh Circuit grappled with a work subject to change. In Kelley v. Chicago Park District, the court held that a living garden of wildflowers composed of two enormous elliptical flowerbeds did not embody the type of authorship with fixation capable of supporting copyright protection. As a result of this ruling, the court also held that the garden was not protectable under the Visual Artists Rights Act (VARA), which requires a copyrightable work as its predicate for protection. This talk with Professor Roberta Kwall relied on Kelley as a springboard to discuss certain critical issues of copyright law and policy that, until this case, have largely been overlooked in the discourse. It focused specifically on the Jewish tradition’s version of Process Thought to inform our copyright policy concerning how we define eligible works of authorship and determine their appropriate scope of protection.