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Analysing Interpretations of ‘Unconventional Copyrightable Subject Matter’ Through Time: Part - II


Part - I examined the initial cases of the expanding scope of copyrightable subject matter and interesting attempts to continue its expansion. In Part - II, we come across a few similar instances, which, had they reached court, could have resulted in some interesting judgments.  It appears that the most prominent subject matter discussions come from case laws of the West, especially the United States and the European Union. One reason may be the explicit recognition that they provide for IP rights. Article 17 of the EU Charter of Fundamental Rights declares that IP shall be protected. Article 1, Section 8, Clause 8 of the U.S. Constitution, known as the “Progress Clause”, too provides this recognition. India, however, does not provide fundamental rights status to any form of property, including IP.

To all the gardens I ever destroyed: A moral rights perspective

The issue of moral rights in unconventional copyrights was dissected in Kelley v. Chicago Park Dist, 635 F.3d 290 (7th Cir. 2011). Kelley was the creator of two large oval gardens called “Wildflower Works”, located in Chicago’s main park. Kelley supervised years of work by volunteers who grew hundreds of flowers that were resilient to Chicago’s climate. The gardens drew the press’ attention and attracted a good crowd. However, the garden was to be demolished to accommodate the construction of the new Millennium Park and Kelley’s work was reduced to squares of half the work’s original size. The District Court ruled in favour of Chicago – it recognised the gardens to be a painting and a sculpture, but noted that it lacked originality and was not copyrightable since it fell under a site-specific art exemption under the Visual Artists Rights Act. In site-specific work, which is ineligible for VARA protection, the location of the work is a part of it.

The Seventh Circuit court rejected the District Court’s findings in holding that the site-specific exemption was intended for works that were a part of the buildings and that the District Judge confused originality for novelty – however, it has been well-established that a work can be original despite not being novel. Nevertheless, the fact that Kelley failed to establish originality was held to be less relevant than the lack of authorship and fixation required for copyright to subsist. It was ultimately held that “Simply put, gardens are planted and cultivated, not authored. A garden’s constituent elements are alive and inherently changeable, not fixed."

The Court also discussed the copyright in an artwork titled “Puppy” by controversial American artist Jeff Koons, which comprises the model of a large puppy made using a metal frame, special fabric, soil, internal irrigation, and growing, flowering plants. It may be observed that with each exhibition, the flowers on “Puppy” vary in terms of distribution, colour, and growth patterns. Similar to Kelley’s work, “Puppy” also uses organic material of such a nature that varies with time. However, the Court considered the latter copyrightable due to the fulfilment of the fixation requirement, and the former not.

Christo and Jeanne-Claude’s Wrapped Reichstag

Two artists, Christo and Jeanne-Claude, wrapped the German Parliament building in silver cloth for two weeks. A dispute arose when unauthorised parties began using photographs of the work in postcards. The dispute reached the Bundesgerichthof (German Supreme Court) in 2002.

In this case ([2004] E.C.C. 25.), the Bundesgerichthof debated over whether copyright subsists in the work. The Court ultimately held that the work was protected by copyright by virtue of being “a distinctive creation of an individual character, which in its specific form, undoubtedly demonstrates the degree of artistic design that is necessary for copyright protection.” On the rationale for granting copyright, the Court held that while the permanency of fixation is important, it is qualified by the fulfilment of other conditions. Thus, the defendants could not hide behind the freedom of panorama (right of individuals to publish pictures of publicly-placed art), as the wrapping was intended (intention of the creator as inferred by the viewing public) to be in public for a period shorter than the duration of its ‘natural’ life.

Attempting to draw a parallel to India – a common law country unlike Germany – a civil law country, fair use has broader interpretations. Thus, Section 52 of the Indian Copyright act of 1957, might have negative implications for the artists had the Wrapped Reichstag case occurred in India.

The value of silence

Peters Edition v. Batt sought to answer the question, “Can silence be copyrighted?” The piece in question was 4’33” (four minutes and thirty-three seconds), by composer John Cage. Its making was Cage’s instructions to his performers not to play their instruments for the duration, which resulted in the only sounds heard being the chirps of birds and audience coughs. The defendant’s composition, “a one-minute silence”, resembled Cage’s, although it was only sixty seconds in duration. While the parties resorted to an out-of-court settlement, we may speculate what the result might have been.

Firstly, Cage’s composition was not pure silence. Can the intermittent chirps and coughs have helped fulfil the criteria for copyright to vest in the composition? If they did, could it be protected as a sound recording, or as a musical work? Sawkins v. Hyperion [2005] 1 W.L.R. 3281, 3295 answers the latter in the negative. The Court held that noise was not the same as music, as music was intended “to be listened to” and “produce effects of some kind on the listener’s emotions and intellect”. Say all the criteria for copyright subsist in Cage’s composition, some may argue that it may be protected as a sound recording. Depending on the existence of an assignment contract, while there may vest producers’ rights in the recording, can it be said that performers’ rights subsist too? Was there even a “performance” in the first place?

Hot yoga: idea or expression?

In Bikram's Yoga College v. Evolation Yoga, No. 13-55763 (9th Cir. 2015), the Ninth Circuit held that a yoga sequence developed by the plaintiff is not entitled to copyright protection because the sequence constitutes an idea and not an expression of an idea. Choudhury initiated proceedings alleging infringement on Evolation’s part through its addition of Bikram’s hot yoga sequence to its classes. The Court further noted that “copyright protection for the sequence would prevent the public from engaging with Choudhury’s idea and building upon it.

Letting utility get in the way: recipes and tastes

Dutch courts grappled with the question of copyright in taste in Levola Hengelo BV v. Smilde Foods BV (Case C-310/17). Levola’s product was a cheese spread, “Heksenkaas”, which, it claimed, had a distinct taste. It argued that Heskenkaas’ taste would constitute a work under Article 1 of the Dutch Copyright Act. According to Levola, copyright in a taste is the overall impression of the sense of taste caused by a product’s consumption, including its texture. It also sought a declaration that the taste of the defendant’s product was a copy of the taste of Heksenkaas.

The Court of Justice of the European Union held that a taste could not be established with “precision and objectivity”. Unlike other subject matter of copyright protection, food would be entirely based on personal and subjective perceptions, which could vary. Furthermore, significant scientific advancement would be necessary to establish objective taste and with current tools, it would not be possible to do so. As a result, it was held that the Copyright and Information Society Directive 2001 (2001/29) did not include the taste of food under copyrightable subject matter. The uniform definition of “work” across all EU states also rendered it difficult to grant copyright protection to the taste of food.

The First Circuit in Lorenzana v. S. Am. Rests. Corp., 799 F.3d 31, 116 U.S.P.Q.2d (BNA) 1162 (1st Cir. 2015) assessed the copyrightability of the “Pechu Sandwich” recipe. In doing so, the court delved into the object of intellectual property protection – to stimulate artistic creativity for the public good. In light of the same, and a reference to eight categories of copyrightable subject matter, the Court held that none of the categories would accommodate a recipe since the mere listing of ingredients and functional directions are not subject to protection.


Fixation is a necessary element for copyright to subsist as per the Berne Convention. However, the Dutch copyright statute does not explicitly contain a fixation requirement, which is why it has, in recent times, been contemplated as “the gateway to olfactory and gustatory works” (See Arkette, 2015). Each case analysed through this article grapples with the fulfilment of one of these three elements. While unconventional trademarks have a standard established by the Sieckmann criteria, copyright law does not establish a uniform standard due to the diversity of works that may be protected.

While India’s laws operate in consonance with the Berne Convention’s requirement of fixation, the Delhi High Court in Emergent Genetics India v. Shailendra Shivam (2011) 125 DRJ 173 surprisingly held that fixation is not a precondition for copyright to subsist in a work in India. It appears that although there may exist some legislative gap on the copyrightability of unconventional works, Indian courts lean towards tangible expression over fixation. What does this mean for unconventional copyrights? Albeit not having addressed an exhaustive list of cases (for which a book would be more appropriate), this discourse appears to point towards a trend depicting several jurisdictions’ common intent to welcome questions of copyrightability of new works.



  2. Introduction: Setting the Scene for Non-Conventional Copyright by Enrico Bonadio and Nicola Lucchi

  3. Evolving Conceptions of Copyright Subject Matter by Pamela Samuelson 



  6. Source of image 1 (Wildflower works):

  7. Source of image 2 (Puppy):

  8. Source of image 3 (Wrapped Reichstag): 









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