The Artful Jurist

Here's one for debate around the egg nog bowl...

If you decorate a Christmas tree, have you created a copyrightable work of visual art?  After all, your tree is unique to all the world in respect to the exact placement of ornaments.  And, of course, each tree's branches are different from every other tree (in the same sense that no two snowflakes are exactly alike).  So, could you snap a photo of your decorated Christmas tree and send it in to the Copyright Office for official registration?

Well, there's no question that you could copyright the photo, if you were so inclined.  But the decorated tree, itself, might be a tougher sell.  For one thing, how many of those ornaments did you actually design and construct yourself, as opposed to buying in a store?  If the ornaments aren't your design, then you obviously can't copyright them.  There might be some argument for a unique placement of them, however -- sort of along the lines that collage artists can copyright their works.  But whether or not the placement constitutes a "transformative use" of the ornaments would likely be a key argument to be decided.

Also, unless you have an artificial tree that you personally designed (and that stands out as unique from all the other artificial trees), chances are that Mother Nature was the true "author" of the tree, itself, not you.  Trying to copyright living works of nature has its pitfalls.

There was a case earlier this year where landscape architect Chapman Kelley brought a lawsuit against the Chicago Park District in order to claim he owned the copyright on a flower bed he had designed for the city.  The Court of Appeals for the 7th Circuit disagreed with Mr. Kelley, ruling that nature created the flowers, which, as living things, were in a constant state of flux.  Thus, the flowers were not an original work of authorship in a fixed state, and, as such, were not protected by copyright.  Mr. Kelley appealed to the U.S. Supreme Court, which in October declined to hear the case.