Are Flower Arrangements Copyrightable?
This weekend is Mother’s Day, and mothers around the nation will be bombarded with bouquets brimming with flowers of all shapes, colors, and sizes. It is part of that ideal springtime scene where one can smell and see beautiful bunches of seasonal flowers bursting onto florists’ shelves. Seeing the burst of flowers inspired me to (obviously) muse: Beautiful—but are flower arrangements copyrightable?
As beautiful as flowers are in nature, they are sometimes made even more dynamic through the thoughtful and creative arrangement, selection, and coordination by florists. In fact, flower arrangement is a recognized art form in countries like Japan where Ikebana is a longstanding tradition.
Although these arrangements are often beautiful to look at, that does not necessarily mean that they are protectable by copyright. So, what exactly does U.S. copyright law say about the copyrightability of flower arrangements?
What Kind of Copyright Protected Work is a Flower Arrangement?
While the copyrightability of the flower arrangement itself is an important question, it is also important to consider what kind of copyright protected work a flower arrangement may be. Section 102 of the Copyright Act lists specific categories of works in which copyright protection subsists (after copyrightability requirements are met), and the list includes sculptural works.
A flower arrangement fits the sculptural works category well since it has a three-dimensional quality and is a visual medium. But section 103 of the Copyright Act also provides that a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in a way that results in an original work of authorship may be protected as a “compilation.” So maybe a florist’s selection, coordination, and arrangement of flowers in a creative way are protectable as compilations.
But in terms of registering a compilation work, the Copyright Office reminds applicants that a compilation work must be registered as one of the types of works listed in Section 102. The Office illustrates in an example in section 312.1 of its Compendium, stating that “[t]he Office may register a sculptural work comprised of rocks that are selected, coordinated, and arranged in a creative manner” but that the Office cannot register “a mere ‘compilation of rocks. . .’”
Copyrightability of Flower Arrangements
Neither the Copyright Act nor the U.S. Copyright Office’s regulations specifically address whether copyright protection extends to flower arrangements. Nor does the Copyright Office specifically address the protectability of flower arrangements in its Compendium on Office Practices. However, there are several clues we can examine. When determining the copyrightability of flower arrangements, it makes sense to first examine the fundamentals of copyrightability. Roughly broken down, U.S. copyright law requires that a work must be (1) original, (2) a work of authorship and (3) fixed in a tangible medium.
Originality
Florists can easily meet the low threshold of creativity necessary to satisfy the originality requirement for copyrightability. In any given arrangement, a florist considers how and where to place and layer certain flowers based on the plant’s symbolic meanings, colors, silhouettes, shapes, sizes, and other characteristics. The florist might also weigh how they can trim the flowers to place them in certain angles and whether to use wiring and other structural support to create certain silhouettes and shapes in the overall arrangement. Each of these decisions is an expression of the florist’s ideas, thoughts, and artistic goals that result in the final flower arrangement.
On the other end of the creativity spectrum of flower arranging would be simply wrapping twelve roses in a bouquet or just placing them in a vase (which many of us may be well doing on Mother’s Day). These simple arrangements are not likely to be expressions that are creative enough to qualify for copyright protection. In fact, these arrangements would likely be found as entirely too commonplace and fall beneath the already low threshold of originality. For example, in Gardenia Flowers, Inc., v. Joseph Markovits, Inc., the federal district court for the Southern District of New York held that artificial flower corsages failed to meet the originality threshold because plaintiff had admitted that it used old traditional flower arrangements, widely embraced in the flower industry in arranging the artificial flowers for corsages.
Authorship
The Copyright Office notes in its Third Edition of the Compendium of U.S. Copyright Office Practices section 306 that “The U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being.” For most flower arrangements, this is a pretty easy requirement to fulfill as they are usually created by human beings.
However, what if there is an element to the flower arrangement that arises from nature itself? The Seventh Circuit Court of Appeals wrestled with this question in Kelley v. Chicago Park Dist., a case about the alleged infringement of an artist’s rights under the Visual Artists’ Rights Act for a living garden installation called “Wildflower Works” in downtown Chicago. Chapman Kelley, the artist in this case, created two football-field-sized elliptical flower beds that featured a variety of native wildflowers. The flowers would “blossom sequentially, changing colors throughout the growing season and increasing brightness towards the center of each ellipse.”
On the question of authorship, the court held that the living garden was not “authored” but that the garden’s appearance “originate[d] in nature” and “owe[d] most of its form and appearance to natural forces . . .” The court further stated that “the gardener who plants and cultivates [the garden] obviously assists” in the appearance of the garden. Although this is but one court’s opinion in a case where the work’s appearance was largely influenced by nature, authorship may not be that big of a hurdle when the florist—not nature—is responsible for creating the flower arrangement.
Fixed in a Tangible Medium
The Copyright Act also requires that the work be fixed in a tangible medium, and states that “[a] work is ‘fixed’ in a tangible medium of expression when its embodiment in a copy or phonorecord . . . is sufficiently permanent or stable to permit [the work] to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”
Most flower arrangements are not permanent as the flowers have a natural end to their life cycle— though some arrangements can last for quite a while based on good care practices. Since all flowers eventually die, are flower arrangements generally considered sufficiently fixed under copyright law? Maybe. On one hand, flower arrangements can last for a while. At least it lasts much longer (days or maybe even weeks) than, let’s say, a bowl of perishable food, which a federal district court in the Central District of California in Kim Seng Co. v. J&A Importers, Inc., held to be insufficient to qualify as being “fixed” under the Copyright Act (the court noting that “once [the food] spoils [it] is gone forever”).
On the other hand, the Seventh Circuit Court of Appeals held in Kelley that the dynamic nature of a living garden meant that the work could not be considered “fixed” since the artist’s intellectual expression could not be sufficiently permanent and stable enough. The court noted that the garden was “simply too changeable to satisfy the primary purpose of fixation.” It further explained that the seeds and plants in the garden were naturally in a state of perpetual change (germination, growing, blooming, becoming dormant, and dying). This life cycle, the court noted, highlighted the essence of a garden, which was “its vitality, not its fixedness” and that though the garden endures from season to season . . . its nature is one of dynamic change.” But again, the Seventh Circuit Court of Appeals is but one court and the holding on fixation was in a particular example of a living garden where the nature of the work hinged on the dynamic nature of the life cycle of plants.
Ultimately, the Seventh Circuit Court of Appeals in Kelley and the federal district court for the Central District of California decisions may have both gotten it wrong on the fixation issue. Both plants and food are certainly in a sufficiently permanent or stable state, such that someone could most certainly perceive the work, reproduce it, and otherwise communicate the work for a period of more than transitory duration. Therefore, a flower arrangement should be able to qualify as being sufficiently “fixed,” fulfilling that part of the requirements for copyrightability.
But again, whether a particular flower arrangement is copyrightable depends on the characteristics of the particular arrangement and how that arrangement was created. Remember, the bar for copyrightability is supposed to be very low. An elaborate flower arrangement certainly can be copyrightable as there are creative expressions in the coordination, selection, and arrangement of the flowers that are authored by a human being and fixed in a way where the arrangement can be perceived for a period of more than transitory duration. Perhaps for Mother’s Day, or in any other setting where one might encounter such flower arrangements, one might be able to understand and appreciate the ingenuity and creativity involved with creating these arrangements that are often works of art in their own right.
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