MASS MoCA Counterclaims Arguing Büchel Project Is Not Art

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:

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