Update: Büchel’s Answer and Counterclaims Against MASS MoCA

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.

From: 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:

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