MASS MoCA Counterclaims Arguing Büchel Project Is Not Art
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!
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