Update: Büchel’s Answer and Counterclaims Against MASS MoCA

On July 2, 2007, Büchel’s attorney 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. — Sergio Munoz Sarmiento

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.

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