MASS MoCA Counterclaims Arguing Büchel Project Is Not Art

Update: July 24, 2007

On July 13th, Judge Ponsor, of the U.S. District Court for the District of Massachusetts ordered a scheduling order for the next hearing in the lawsuit by MASS MoCA against Christoph Büchel. There will be a an inspection and photographing of the exhibition site by August 17, 2007, and the Court will take a view of the pertinent premises of MASS MoCA’s facilities on September 18th.

Dispositive motions will be filed by both parties, and on September 21st the Court will make an effort to rule on any dispositive motions made by both parties, from the bench. A dispositive motion is a motion seeking a trial court order entirely disposing of one or more claims in favor of the moving party without need for further trial court proceedings. “To dispose” of a claim means to decide the claim in favor of one or another party.

Previous to this court order, MASS MoCA’s counsel, Kurt Wm Hemr, of Skadden Arps, replied to Büchel’s counterclaims, with affirmative defenses, by denying each and every allegation contained in Büchel’s counterclaim introduction, except that it “admitted to entering into an agreement with Büchel regarding a planned Exhibition to be located in MASS MoCA’s football field-sized Building 5 gallery.”

A brief explanation of an affirmative defense is in order. An affirmative defense is a category of defense used in litigation between private parties in common law jurisdictions. Affirmative defenses operate to limit or excuse or avoid a defendant’s criminal culpability or civil liability, even if the factual allegations of plaintiff’s claim are admitted or proven. An affirmative defense must be timely pleaded by the defendant in order for the court to consider it, or else it is considered waived by the defendant’s failure to assert it. Because an affirmative defense requires an assertion of facts beyond those claimed by the plaintiff, generally the party making an affirmative defense bears the burden of proof.

Now back to MASS MoCA’s affirmative defenses. Where it did not deny allegations, MASS MoCA either alleged to be without knowledge or information sufficient to admit or deny the allegations, or it simply denied each and every allegation contained in Büchel’s counterclaims.

The most elucidating part of MASS MoCA’s defense is predicated on affirmative defenses that should arouse suspicion and distrust on the part of any visual artist toward any cultural institution. Out of the twenty-nine affirmative defenses, MASS MoCA is claiming that Büchel’s counterclaims are barred because “the materials that are the subject matter of [Büchel’s] Counterclaims do not contain sufficient original expression on the part of Büchel to be protected under the [U.S.] Copyright Act.”

Alternatively, MASS MoCA argues that Büchel’s counterclaims are barred because MASS MoCA is “a joint owner of any copyright in the Materials which are the subject matter of Büchel’s counterclaims.”

More alarming is MASS MoCA’s argument that they are the lawful owners of the materials which are the subject matter of this dispute, and thus allowed to display them publicly.

But this isn’t the end of this wonderful yarn of fiction. MASS MoCA further argues that Büchel’s work is not even art, but simply a compilation of materials which, if accepted by the Court, would not be granted protection under the Visual Artists Rights Act of 1990 (VARA). If in fact the Court decides that VARA does apply, MASS MoCA argues that any modification to the “materials” which may have happened is allowed by VARA under the “conservation or placement” exception, and/or that the doctrine of “fair use” would allow MASS MoCA to display Büchel’s project without infringing the Copyright or VARA Acts.

Some of the other comical defenses are MASS MoCA’s allegations that it acted in good faith, and that if there was any of the alleged infringing conduct on the part of MASS MoCA, it was neither willful nor intentional. Just in case any of these defenses fail, MASS MoCA alleges that Büchel just sat on his tush a tad too long (doctrine of laches) and/or that Büchel had a certain role in this whole misunderstanding and jumbled mess (doctrine of unclean hands). Lastly, if in fact Büchel did incur any damages, the damages are attributable to Büchel’s own “reckless, negligent or culpable conduct” and therefore Büchel’s claims would be barred by his own comparative and/or contributory negligence.

In the coming days, CLANCCO will make available a brief analysis of some of MASS MoCA’s defenses and what they will mean if the Court does decide that Büchel’s project is not art, that MASS MoCA is a joint author, that MASS MoCA is the owner of the work, that Büchel’s project does not contain sufficient original expression to warrant Copyright protection, or that MASS MoCA, or any other cultural institution, should be allowed to exhibit and publicly display the projects and installations of visual artists simply by dousing an artist’s work with the semantic blessing of “materials” and not artwork. — Sergio Munoz Sarmiento

Update: July 3, 2007

On July 2, 2007, Büchel’s attorney, Donn Zeretsky answered

MASS MoCA’s claim and counterclaimed with five claims against MASS MoCA. As I previously surmised, the two main legal doctrines under scrutiny are the Copyright Act and the Visual Artists Rights Act (VARA), particularly as they pertain to reputation, attibution, public display, and derivative works, which interestingly and smartly include the plans and model of the installation.

Keep in mind that the crux of the argument here is MASS MoCA’s exhibiting of Büchel’s work without his consent or participation, along with MASS MoCA’s suit against Büchel in a district court to have the court rule that MASS MoCA can show Büchel’s work without any kind of visual covers.

It makes one wonder what would possess MASS MoCA to carry out such actions. Was this simply Mass MoCA Director, Joseph Thompson’s way of acknowledging the Bush regime by placing himself and MASS MoCA above the law, or was it a simple, hasty, and uninformed act of bravado which willfully sidestepped any counsel from lawyers. It is hard to believe that a million-dollar institution would not have access to legal counsel or the staff necessary to foresee these potential problems, or, better yet, the basic and fundamental premise that any financial and executory agreement of this magnitude be in writing. Why did Thompson not spend a few thousand dollars and hire a decent law firm to write an agreement between MASS MoCA and Büchel, which would, if drafted properly, have saved the museum, taxpayers, its staff and the artist countless hours and money?

Ken Johnson of the Boston Globe seems to agree: “One would hope that a museum thus engaged in artistic collaboration would understand and adapt to what kind of artist it is dealing with in any given project.”

Johnson concludes: “Obviously, Mass MoCA’s faith in the artist and his process was sorely tested. But does that warrant exacting revenge by turning his project into a show that misrepresents, dishonors, vilifies, and even ridicules him? A show that admits no responsibility for the project’s failure on the museum’s part and that affirms popular perceptions of our most innovative contemporary artists as frauds and charlatans? I don’t think so.”

Given a reasonable Federal Court and a strict interpretation of U.S. Copyright law, the verdict is quite clear: If you fail to prepare, prepare to pay.

Answer and Counterclaim:

In Büchel’s first counterclaim, Büchel primarily seeks a declaration that MASS MoCA cannot present any of Büchel’s unfinished work or any of its components. Büchel also seeks injunctive relief enjoining MASS MoCA from publicly exhibiting or displaying any of Büchel’s work with or without any viewing restrictive measures. Lastly, Büchel seeks that the Court order MASS MoCA to remove and dismantle the “unfinished, distorted and modified work of art from Building 5 gallery.”

The second counterclaim alleges that MASS MoCA intentionally distorted and modified Büchel’s work without his participation or consent, and that simply placing plastic tarps to obstruct the view of the installation is not only insufficient, but also prejudicial to Büchel’s reputation because it allows viewers to see an incomplete and unauthored work assigned to Büchel’s name. Because of these intentional acts, Büchel alleges a right to actual and statutory damages, as well as any profits, gains or advantages obtained by MASS MoCA.

The third and fourth counterclaims fall under the “public display” and “derivative works” Section 106 of the U.S. Copyright Act. Büchel argues that by presenting and exhibiting his work, MASS MoCA has breached Büchel’s sole right to control the public display of his work.

Lastly, Büchel keenly and rightly argues under the “derivative works” section that MASS MoCA’s recasting, transformation and adaptation of Büchel’s copyrighted plans and model .

Büchel’s right to actual and statutory damages, as well as any profits, gains or advantages obtained by MASS MoCA are also alleged in counterclaims 3-5, as well as injunctive relief enjoining MASS MoCA from any further display of Büchel’s work as well as a court order requiring MASS MoCA to dismantle and remove the unfinished installation. Additionally, Büchel seeks attorney’s fees and any other costs and expenses.

To read the complete Answer and Counterclaim in PDF format, click here. You will need Adobe or a PDF reader.

Update: May 30, 2007

For months, MASS MoCA has been fighting with the Swiss artist Christoph Büchel over the rising budget for a massive Büchel installation called “Training Ground for Democracy” that was supposed to open at the museum in December 2006. But now the museum has decided to exhibit the Büchel project without his permission and buy itself a lawsuit in federal court. The plan is to allow people to see the “unfinished”, warehouse-sized installation — which includes an entire two story house, a movie theater interior and a voting booth. Mass MoCA seeks to exhibit all of the elements behind plastic covers, unless the museum can get a federal district court in Massachusetts to give it a declaratory ruling that the rump exhibition can be shown without the plastic.

The problem with this, and as Büchel’s attorney rightly points out, is that it infringes on Büchel’s Visual Artists Rights Act (VARA) rights and copyright protections. This is so mainly because the museum has already led tours of Büchel’s installation “Training Camp for Democracy,” without notifying the artist or his representatives. Journalists, art critics, art collectors, museum curators — and even politicians have viewed the in-progress installation. In fact the governor of Massachusetts was led through Building 5 by the museum director himself.

Well known to most, although obviously not to Mass MoCA, under the 1976 Copyright Act, Büchel’s “bundle of rights” include the right to make copies of his work, the right to distribute and/or sell his work, the right to create adaptations of his work, and lastly, and most importantly, the right to display the work in public. In effect, Mass MoCA has unilaterally and unequivocally breached each of these four rights. Keeping in mind that any litigator worth her salt will bundle these rights with additional trademark and in this specific case, VARA protection, Mass MoCA has decided to play artist and gamble against both VARA protection and copyright’s fair-use doctrine.

If litigated, it will be interesting to see how a federal court interprets the right of a museum and curator (non-artists) to appropriate a commissioned work and argue under fair-use their right to reproduce, distribute, adapt and publicly display a visual artist’s work. My hunch: Mass MoCA settles!

The following is from a letter from Büchel’s attorney, Donn Zaretsky, sent on Thursday, May 24th to Mass MoCA’s lawyers regarding the lawsuit they have filed against Büchel. In effect, Zaretsky argues that “there are a bunch of factual inaccuracies floating around out there, which we will address, but, for now, the essential point to understand is that the Visual Artists Rights Act is there to prevent the exhibition of works of art that have been distorted or modified — and the museum is doing exactly that six ways to Sunday here. No amount of ‘tarp’ can cover that up.” [italics his]

Here’s the text of the letter from Zaretsky’s The Art Law Blog:

With respect to the proposed exhibition Made at MASS MoCA, your client should be aware that:

1. It is not possible to “shield” the work “from view” in the way that has been proposed. As Mr. Thompson well knows, the work is not merely a visual but also a physical experience; the design of the space itself, and the ways that the visitor is moved through it, are as much a part of the meaning of the artwork as the objects within it. To take just one example, to enter the gallery one must pass through the cinema that is an essential part of the work. There is no way to “cover” that up; the visitor experiences the work by moving through it, and being “inside” of it. Accordingly, the museum’s plan to allow visitor access to the work while “shielding the huge objects from view” will result in nothing other than the exhibition of a drastically distorted and modified version of the work, in willful violation of VARA as well as the parties’ clear understanding. It is also clear, based on the photos that ran in The New York Times and The North Adams Transcript on Tuesday (the latter expressly admitting that “the single-family house taken from Houghton Street in North Adams for artist Christoph Büchel’s unfinished exhibit can be seen peeking above a tarped-off aisle”), that the effort to “shield” “the objects” from view is incomplete at best, so that, even if one were to think of the work in purely visual terms, the result of the museum’s actions is the display of a highly distorted version of what was intended as an integrated work – a version in which some of the objects that make up the work can be seen by the viewer and others cannot, utterly destroying the work’s meaning and integrity. If the museum follows through on this plan, rest assured that we will seek all available remedies, including for all past violations (on which see the May 23 “Exhibitionist” blog post by the Boston Globe’s Geoff Edgers wondering “who hasn’t” already seen the show).

2. In any event, it is not the case that what the museum is seeking permission to show is “Mr. Büchel’s” unfinished work. Instead, numerous elements have been assembled without his involvement or approval, as a kind of guess as to how he would have done so. (So it’s more like a painter leaving a canvas less than half finished — and it is absolutely false, by the way, that the work is 90% completed — and a museum picking up a brush and filling in the rest and then having the audacity to present the painting as a “work in progress” by the artist.) The lawsuit you have filed is essentially a request for permission to show a distorted, modified work to the public.

3. The act of “covering” objects from the work (again sometimes only partially) is itself an intentional distortion and/or modification, once more in violation of the law as well as the parties’ understanding.

4. As the copyright holder, Mr. Büchel denies permission for the use of any installation photographs in the exhibition.

Tags: art, Art Law, buchel, kurt hemr, mass moca, Moral Rights, VARA