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Massachusetts Museum of Contemporary Art Foundation, Inc. v. Christoph Büchel, U.S. District of Massachusetts, Case 3:07-cv-30089-MAP

Published online by Cambridge University Press:  14 April 2008

Anastasia Telesetsky
Anastasia Telesetsky
Affiliation:
Briscoe Ivester Bazel LLP. Email: atelesetsky@briscoelaw.net
Rights & Permissions [Opens in a new window]

Abstract

On September 25, 2007, the Massachusetts Museum of Contemporary Art (MASS MoCA) won its declaratory judgment case against Swiss artist Christoph Büchel and potentially set additional Visual Artist Rights Act (VARA) precedent. Judge Ponsor agreed that Büchel's unfinished work Training Ground for Democracy was not protected by VARA. Artists cried foul. Journalists excoriated the museum with incendiary comments in the New York Times art section such as “the museum deserves to be scathed.”Smith, “Is it Art Yet? And Who Decides?” Why did an artistic disagreement end up ensnared in a relatively nasty legal “custody” battle?

Information

Type
CASE NOTE
Information
International Journal of Cultural Property , Volume 15 , Issue 1 , February 2008, pp. 87 - 95
Copyright
© 2008 International Cultural Property Society

FACTS

In the fall of 2006, MASS MoCA invited Swiss artist Büchel to create a thematic work for its Building 5, one of the largest galleries of any museum in the United States. Büchel proposed a larger-than-life work that would try to experientially capture various detailed scenarios in which counter-terrorist forces might find themselves both within the United States and overseas. Büchel was a critically acclaimed contemporary artist at the time MASS MoCA approached him. He had previously done shows in Europe and the United States and received high praise for his thought-provoking pieces.

Büchel began work in earnest; and with the help of his artistic assistants and MASS MoCA staff, numerous cultural artifacts were collected and brought to Building 5 to construct a mini theater of war. The collection included a dismantled movie theater, a police car, an oil tanker truck, an interrogation chamber, 40 tons of cinder blocks, and a two-story house. Büchel imagined various thematic areas including a prison, hospital, psychological operations truck, market, tribunal, Saddam Hussein's mud brick hideout, a museum, a bank, a convenience store, a school, a gas station, a work camp, political rally, a bar, a watchtower, a church, and a terrorist's hideout.

After returning to Switzerland, Büchel continued to provide direction to the MASS MoCA staff by email. Tensions began to build as early as October 2006 when MASS MoCA's director observed that for Büchel “it's all juxtaposition and test fit with him.”2

Memorandum of Law in Support of Defendant Christoph Büchel's Motion for Summary Judgment, August 31, 2007 (Massachusetts Museum of Contemporary Art Foundation, Inc. v. Christoph Büchel, U.S. District of Massachusetts), p. 15.

Büchel was not happy with MASS MoCA's work and asked them to wait on installing certain parts of the installation. MASS MoCA continued to amass items for the display including purchasing leaflet bombs, grenades, police helmets, a communion chalice, shopping carts, ATM machines, and prayer rugs.

No firm date was set for the opening of the exhibit though Mass MoCA and Büchel hoped to open the exhibit on March 7, 2007. In December 2006, the artist and his assistants returned to Switzerland for the holidays. They expected to return to finish the exhibits. But in January 2007, Mass MoCA sent a letter to Büchel's European gallery seeking $70,000 of contributions to the exhibit budget because the museum director claimed that the project was already well over budget. In late December 2006, a private donor had already offered the museum $100,000 for Büchel exhibition sponsorship, but Mass MoCA decided not to use the money to fund Büchel's completion of the exhibition.

Tempers flared. By the end of January 2007, the Mass MoCA director had lost patience with Büchel and decided to continue forward with or without Büchel on the project in order to create an exhibit that would ultimately be titled “Made in Mass MoCA.” As conceived of in an email produced in court, the museum director explained “I think that there is a high likelihood we will open the exhibition at it [sic] current 85% level of completion … We will explain very carefully and precisely that the work is incomplete, that the artist has not sanctioned its exhibition in the partial state of completion. We will display numerous sketches and raw material as a sort of forensic study … I expect there will be controversy surrounding my decision to show the work as a failed work-in-progress, if indeed it gets to that.”

From the museum's perspective, it could not move forward with Büchel because the artist, according to the museum director, “continues to be impossible.” The museum had gone to great length to decontaminate an oil tanker and had reassembled a movie theater including replacing all of its original wallpaper so that they could be used in the exhibit. The museum expressed its frustration that the exhibit “like the Iraq story itself … has become a black hole, with no good exit.”

From the artist's perspective, the collaborative effort was interfering with his ability to express his artistic vision and Büchel asserted to the museum that “The artist will not accept any orders and any more pressure or compromises as to how things have to be done from the museum director or museum's technicians.”3

Case 3:07-cv-30089-MAP, Document 31–52, Filed 8/31/2007, page 2.

Eventually, the parties ceased communicating, but Mass MoCA continued assembling parts of the exhibit event though it knew that it no longer had any artistic direction from Büchel.

In May 2007, the museum slated the exhibit to open. But the opening would be à la Christo and not Büchel because all of the object would be wrapped in tarps. Because Mass MoCA wanted to show more than just a mysterious montage of tarps, on May 21, 2007, when the exhibit opened, the museum requested a declaratory judgment from the District Court of Massachusetts to permit it to display the materials and partial constructions in Building 5.

In response to the museum's filing of a legal complaint, Büchel filed a counterclaim seeking money damages under VARA and a declaration prohibiting the museum from unveiling the installation. Both sides moved for summary judgment.

REVIEW OF THE VISUAL ARTISTS RIGHTS ACT

The VARA was passed partially in response to the controversy raised by Serra v. United States General Services Administration.4

See 847 F. 2d 1045 (2d Cir. 1988).

Richard Serra sued the U.S. government when it dismantled his 120-foot long, 12-foot high Tilted Arc steel sculpture in the Federal Plaza in New York City because of concerns that the size and location of the sculpture was interfering with public use of the plaza. During the night, federal workers sliced it into three pieces and removed it from the plaza. Serra argued that his work was site specific and that the sculpture would only be meaningful when displayed in the particular location for which it was created. Serra lost his lawsuit because the court did not find a First Amendment or a due process violation. Congress decided that although it wanted to protect artist's moral rights, they did not necessarily want artists to have rights that would conflict with a property owner's reasonable rights to use their property.

The Visual Artists Rights Act of 1990, 17 U.S.C.S. § 106A, grants artists several rights in relation to their work: the right of attribution; the right of integrity; and, in the case of works of visual art of recognized stature, the right to prevent destruction, intentional distortion, mutilation, or other prejudicial modification. The right of attribution is an artist's right to be recognized by name as the author of his or her work, publish anonymously or pseudonymously, prevent a work from being falsely attributed to someone else, and prevent the use of the artist's name on works created by others. The right of integrity allows the artist to prevent any deforming or mutilating changes to his or her work that might be prejudicial to the artist's reputation, even after title in the work has been transferred. For known visual art works, an artist also has the right to stop a party from destroying, distorting, or mutilating the known work. Modifications that result from conservation of a work or the passage of time or the public presentation of a work are not implicated by VARA. Visual art is limited to paintings, drawings, print, sculptures, and exhibition photographic images. Commercial arts and works made for hire are not protected.

Notably, the rights of an artist under VARA can be deliberately waived. Where an artist is seeking damages for the alleged destruction of a work of art and the artist succeeds in proving that the art work is protected by VARA, an artist must prove that the work is one of recognized stature. Determining a work of recognized stature is a decision made solely at the discretion of the judge on the basis of expert testimony.

There is little published case law on VARA. What case law there is has further refined the concept of what is art for the purposes of VARA. For example, art designed for a specific site is not art subject to VARA: Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128 (1st Cir. 2003).

Art by a known artist that is not a piece of recognized stature is also not protectable under VARA. In a recent case, the court found that an artist who created a sculpture of a steel swan weighing approximately 6,000 pounds for a private residence's backyard could not claim damages when the art was moved into storage where it was accidentally damaged. The court found that VARA did not apply because the art in question was not a known work of art whose merit had been recognized: Scott v. Dixon, 309 F. Supp. 2d 395 (E.D.N.Y. 2004).

MUSEUM'S ARGUMENTS

In its opening brief,5

Plaintiff MASS MoCA's Memorandum of Law in Support of its Motion for Summary Judgment, August 31, 2007 (Case Massachusetts Museum of Contemporary Art Foundation, Inc. v. Christoph Büchel, U.S. District of Massachusetts).

the MASS MoCA argued that it was entitled to a declaratory judgment in its favor because MASS MoCA owned the materials in the installation, and VARA does not prevent the display of unfinished works. For its first argument, MASS MoCA asserted that it had full ownership of whatever constituted the exhibit because it had collected donations for the exhibition, purchased the remaining components of the installations with its funds, and used its staff or contractors to construct the work. Only after the installation was complete would any title or copyright to the work transfer to Büchel. In its second argument, MASS MoCA argued that VARA does not apply because display of a work that does not yet exist does not constitute a distortion, mutilation, or modification under VARA. Although recognized art works might be protected under VARA as part of the Copyright Act, works that do not exist yet but may be created in the future are not protected. MASS MoCA stressed that VARA should not apply to disputes regarding the creation of artwork. MASS MoCA further observed that not only was Büchel's reputation not damaged by the proceedings, but he also stood to profit from the case because he was offering for sale as artwork the various court filings and correspondence related to the dispute.

BÜCHEL'S ARGUMENTS

In Büchel's opening summary judgment brief,6

See endnote 2.

his lawyers made five arguments under VARA. First, they argued that VARA protects an artist's moral rights for works that are still in progress and that these moral rights may be waived only by a signed instrument. Büchel's lawyers relied on some legislative history and a law review to bolster their broad reading of the statute on this point. Second, they argued that Büchel's exhibition as a compilation of experiential sculptures was one of the types of visual art VARA intended to protect. Third, they argued that unfinished works of visual art have the same protection as finished works of art. Pointing to statements by the MASS MoCA curator that “art exists when an artist says it's so,” Büchel argued that his work was nearly complete as a fixed medium of expression and that MASS MoCA understood that the work was art such that it could be described as “the Guernica of our time.”7

See endnote 2. Quoted material is from letters and emails from Joe Thompson at MASS MoCA.

Fourth, they argued that the museum should not be permitted to show the work in an unfinished state because it would distort Büchel's reputation as an artist. They argued that the lawsuit itself had inextricably linked Büchel to the work even if MASS MoCA didn't put his name on it or affirmatively stated that Büchel did not approve of the exhibit in its current condition. Fifth, Büchel argued that MASS MoCA willfully distorted and modified his work by continuing to work on the piece after Büchel had made it clear that he would no longer condone MASS MoCA's handling of his piece.

JUDGE PONSOR'S RULING AND OUTCOME

To the disappointment of Büchel, on September 21, 2007, Judge Ponsor agreed with the museum that the tarps could come down and MASS MoCA could display the exhibition with a disclaimer that the work does not represent a finished work of art by Büchel. He commented from the bench that he was “extraordinarily moved” by the exhibit and that while the exhibit “does not present my image of democracy” it is “a vision that strikes home very deeply.”8

After expressing his feelings about the work, Judge Ponsor gave a focused ruling where he ruled that neither the Copyright Act nor VARA would prohibit a museum from displaying materials that they identified as unfinished. In ruling on this decision, Judge Ponsor did not seek to create far-reaching precedent on VARA. He did not rule on whether an unfinished work could qualify for VARA protection, nor did he rule on whether an institution had the right to decide when an artist's work was finished. Judge Ponsor's critics insist that he implicitly ruled on greater policy matters.

After hearing the court hand down its decision from the bench, Büchel's attorneys immediately appealed the decision to the First Circuit; however, the museum viewed the judge's ruling as a win for institutions. From the museum's perspective, the judge agreed that an artist cannot agree to collaborate on a piece, overspend on the budget, abandon the project, and then cry foul if the institution wants to show the piece as an unfinished work. Even though the museum prevailed, ultimately, no disclaimer was ever fashioned. At the end of September, the museum relinquished the project and began disassembling the work and carting it off to the landfill and recycling centers.9

MUSINGS ON JUDGE PONSOR'S RULING

In this case where expanding egos competed with shrinking budgets, Judge Ponsor took the middle ground and crafted an outcome with equitable outcomes for both parties. Although Judge Ponsor expressed his deep admiration for what he saw of the Training Ground for Democracy, his instinct was correct that this case on its facts was not about dueling aesthetic visions but rather about money and the logistics of staging a large exhibit. Some of Judge Ponsor's equity sympathies weighed in with MASS MoCA's obvious physical dilemma. What could an institution do with a mobile home, a vintage movie theater, or a fuel truck in various states of decay that were now in its legal ownership? Not allowing MASS MoCA to display the assortment of expensive objects it had purchased would be an unnecessary punishment for a young contemporary art institution.

However, Judge Ponsor did not give MASS MoCA a no-conditions-attached judgment. Tacitly acknowledging that there may be power imbalances between individual artists and exhibiting institutions, Judge Ponsor required MASS MoCA to include a disclaimer on the exhibit. The judicial requirement for a disclaimer is a clear win for individual artists from having a work attributed to an artist that does not conform to the artist's declared vision.

Intentionally or otherwise, Judge Ponsor sent a clear message to the parties, the institutional art world, and artists, established and aspiring alike, that a contracted collaborative relationship with any ambiguities is open to interpretation. After this case, both artists and institutions need to more carefully spell out their expectations of each other when they intend to work collaboratively. The museum claimed that they had a written agreement in the form of a letter and follow-up email messages that set out a budget and a timeline. Büchel contended that he did not have a written agreement.

A commission or invitation to create art should be accompanied by face-to-face negotiations and a written contract to avoid the very sort of misunderstandings that erupted in the MASS MoCA v. Büchel case. Where artists and institutions are clear with each other, a judge does not need to decide whether a given work is legally protected under VARA. If a single written contract that both parties recognized as a contract had been previously agreed on, this case would have been just another mundane contract law case and not a rallying call for individual artists heralding moral rights.

In the end, looking at the case in hindsight, there is one clear winner and one clear loser. The clear winner is Büchel. This controversy has raised curiosity about his works, especially when the judge opined that he had “never been so powerfully affected by a work of contemporary art.”10

His reputation in the United States has not been denigrated as he claims but, in fact, enhanced. Art critics from the United States have piqued interest in experiencing first hand a “dense, fraught” Büchel work, “which compress masses of material and objects into historically charged labyrinthine environments through which viewers walk, climb and crawl.”11

The clear loser is the public, who will never see a scrap of Büchel critical vision that Judge Ponsor exclaimed “extraordinarily moved” him to think deeply about democracy.12

Perceiving itself trapped by a Hobson's choice, the museum capitulated to outrage from some sectors of the public by deconstructing Büchel's historical deconstruction of current events and moving on to less contentious displays.

Not content to let misunderstandings settle, Büchel insisted on getting the last public word. After MASS MoCA agreed to disassemble Training Ground for Democracy, Büchel then sent an e-mail to the Boston Globe offering to donate to MASS MoCA a “permanent installation” he would do for free: a tweak of the museum's rooftop signage to spell out “MASS CoMA.”13

RECENT VARA CASES

Even though the District of Massachusetts court ultimately ruled that Büchel had no case under VARA, the District Court of Illinois found that artist Chapman Kelley could recover damages for destruction to his piece Wildflower Works.14

Herrmann, “‘Wildflower Works I.’”

In this unusual case, the court found that Wildflower Works I, a display of some 66,000 square feet of plants, was a widely renowned artwork in the Chicago area15

Herrmann, “‘Wildflower Works I.’” The artist described the piece as “a painting when in full bloom during the summer and a sculpture in the winter.”

since its inception in 1984 and that the removal of half the plants in 2004 without proper notification to the artist was a violation of VARA.

Another VARA case is brewing in California. Lawyers for artist Sharon Louden are demanding damages for the removal of part of her installation Reflecting Tips, 2001 designed to mimic the natural wetland vegetation on the campus of Internet company Yahoo in Sunnyvale, California.16

Yahoo installed the piece in 2001 in compliance with the City of Sunnyvale's Art in Private Development Ordinance. The piece included some collaboration between Yahoo and the artist: The artist created the artificial reeds and the company planted the natural grass around the artist's reeds. In an unexpected twist, the grass engulfed the site and led to the City of Sunnyvale ordering Yahoo to mow the nuisance grass. While mowing in fall 2006, Yahoo damaged some of the wire reeds, informed the artist of the damage, and discussed repairing the work. In March 2007, Yahoo told the artist she needn't repair the work and that they would replace the previous natural grass that mimicked the reeds with more manageable grass. The artist argued that Yahoo's unilateral decision was a deliberate interference with her original vision and an affront to her reputation because her artwork now looks like a “bad miniature golf course.”17 Unlike the Büchel situation, both Wildflower Works I and Reflecting Tips, 2001 involve recognized finished pieces, not works in progress.

CONCLUSION

Given the idiosyncratic facts in this case, it is unlikely that the Büchel case serves as precedent for future VARA cases. But, for artists and institutions alike, the Büchel case serves as a warning that joint collaborations require careful management of expectations.

References

Benfey, Christopher. “Mess MoCA: An Artist and a Museum Fight Over A Work of Art.” Slate. www.slate.com/id/2174656/ (accessed January 17, 2008).
Crow, Kelly. “It's Yahoo's Lawn, But this Artist Says Keep Off the Grass.” Wall Street Journal Online. Page One. http://online.wsj.com/public/article_print/SB119101266764543043.html (accessed October 1, 2007).
Edgers, Geoff. “Mass MoCA to Dismantle Unseen Exhibit.” Boston Globe. http://www.boston.com/ae/theater_arts/articles/2007/09/26/mass_moca_to_dismantle_unseen_exhibit (accessed September 26, 2007).
Herrmann, Andrew. “‘Wildflower Works I’: Park District May Have to Pay Artist Damages.” Chicago Sun-Times. http://www.suntimes.com/news/metro/576718,CST-NWS-wildflowers27.article (accessed September 27, 2007).
Kennedy, Randy. “The Show Will Go On, but the Art will be Shielded.” New York Times. www.nytimes.com (accessed May 22, 2007).
Lewis, Jacquelyn. “Joe Thompson: A Future Without Büchel.” ARTINFO. www.artinfo.com/articles/story/25709/joe_thompson_on_a_future_without_buchel (accessed September 27, 2007).
Lufkin, Martha. “Mass MoCA Dismantles Artist's Unfinished Installation.” The Art Newspaper. www.theartnewspaper.com/article01.asp?id=4565 (accessed September 27, 2007).
Smith, Roberta. “Is it Art Yet? And Who Decides?” New York Times. www.nytimes.com (accessed September 16, 2007).