Monday, December 16, 2019

MASS MoCA: Training Ground for Confidentiality

On Tuesday, August 14, 2007, MASS MoCA’s counsel, Skadden Arps, filed an emergency motion for protective order with the United States Distric Court for the District of Massachusetts seeking to prevent Christoph Büchel from disclosing and making publicly available documents used during litigation, claiming that Büchel is “abusing the discovery process” by using these documents to make and sell art. In an era of growing demand for corporate transparency and accountability, it boggles the mind that an art institution–traditionally against censorship and creative restrictions–would try to enforce the silencing of artistic voices through force of law.

MASS MoCA (“Museum”) argues that it is seeking to keep Büchel from using confidential information for artistic and commercial purposes solely because the documents contain private and confidential information such as donor bank account numbers and the names of donors who would rather remain anonymous.

However, Büchel ’s attorney, Donn Zaretzky, strongly believes this argument is false and disingenuous:


of all, they are not seeking to keep from public view “a

very small percentage” of the documents they produced. They

want to keep confidential ALL documents they’ve produced

(except for those that were already in Christoph’s possession

before they sued him) — every museum email regarding the

so-called “budget,” every email showing how they frittered

away the money they had allocated for the show, every email

detailing the many changes they (wilfully)[sic] made to the

unfinished work.

Second, they are not seeking only to prevent Mr Büchel from

using these materials to make future artwork (though I

note the irony of an art museum GOING TO COURT to prevent an

artist from making art). They are seeking to keep them from

public view entirely — away from the eyes of journalists

and bloggers and future art historians interested in this

dispute. Mr Büchel has never asked for a single document

relating to this dispute to be kept from public view. All he

has wanted is for all the facts to be made available to all

concerned. It’s a shame the museum does not agree.

This recent attack by MASS MoCA is reminiscent of Michael Asher’s 1999 deaccession critique of New York’s Museum of Modern Art, where Asher’s discreet announcement via a shiny red catalog entitled Painting and Sculpture from The Museum of Modern Art: Catalog of Deaccessions 1929 through 1998 was made available to visitors listing all works deaccessioned by the museum during MoMA’s history. In this case, Asher was “allowed” to complete his deaccession project so long as MoMA’s logo was not on the catalog, and so long as the visitor approached the busy museum store, stand in line and request it from a cashier. Visitors recalled being told that the catalogs had run out, even though reports to the contrary stated that boxes full of catalogs were stored in MoMA’s storage space. According to MoMA’s Chief Curator of Painting and Sculpture, Kirk Varnedoe, Asher’s listing should be considered unreliable since “we have not been able to assure ourselves that the present list meets the criteria of completeness or accuracy we would require in a museum publication.” (see Afterimage, July-August 1999). It is interesting to note that MoMA’s claim of unreliability hinges on the fact that the research for Asher’s project was relegated to a MoMA intern.

Why then would MASS MoCA be afraid to have Büchel or his attorneys disseminate court filings to the general public? Perhaps the Museum’s anxieties regarding the making public of court documents were highlighted when the Museum’s lead counsel, Kurt Hemr, copied CLANCCO on correspondence between the Museum’s counsel (Skadden Arps), and Büchel ’s counsel (Donn Zaretsky and Bingham McCutchen). It is interesting to note that any 501(c)(3) organization must comply with disclosure requirement set out by the Internal Revenue Service. The Museum’s most recent Form 990, from 2006, is available via and can be viewed here. A Form 990 is an annual reporting return that certain federally tax-exempt organizations must file with the IRS. It provides information on the filing organization’s mission, programs, and finances. Certain information, like revenue from fundraising and salaries, can also be found in a Form 990.

Viewed under this light, it is proper to conclude that the public relations war has devastated the Museum to the extent that they now seek to muzzle and silence journalists, bloggers, critics and art historians by denying them access to public documents and public information. As if this Gonzales/Bush strategy weren’t enough, the Museum’s level of delirium has bloated to the extent that they are willing to eviscerate First Amendment protections by not only claiming that Büchel ’s work is not art (or that if it is, they are co-authors, or it is and they own the work and its copyright), but also by extending their argument to preclude Büchel and any artist from making art out of public documents and information.

The Museum differs on this point. In an August 14, 2007 statement released to CLANCCO via the Museum’s attorney, Kurt Hemr, the Museum argues:

At the hearing setting the schedule for this case, the

Court directed that

both sides be “unusually generous” in supplying the other

side with

relevant documents. MASS MoCA followed the Court’s

direction, and

provided Mr. Büchel with tens of thousands of pages of

documents from its

own files regarding its collaboration with Mr. Büchel.

We are not seeking to impair or restrict Mr. Büchel’s

right to comment

publicly on this case, or to use his own documents and

testimony for any

purpose that he may desire. However, Mr. Büchel is not

entitled to use

documents and testimony provided by the museum in

litigation for any

purpose other than the litigation. This material was not

produced to

provide Mr. Büchel with materials for future artwork.

[bolded sections added by CLANCCO]

A very small percentage of the documents produced by MASS

MoCA contained

information that the museum considers confidential: for


documents that contain bank account numbers. Therefore, we

have also

asked the Court to require Mr. Büchel and his attorneys to

treat that

small number of documents as confidential, which is a

routine request.

It is ironic that it was precisely this Duchampian strategy which MASS MoCA’s Director, Joseph Thompson, first found most alluring about Büchel’s artistic methodology.

To read MASS MoCA’s actual motion for protective order, proposed order, and interim order, click here.

To read the Exhibits, Part I, which includes article, “Site Specific Impasse”; Skadden/Mass MoCA letter claiming that Buchel is selling documents as artwork, as well as the document (p.11) where MASS MoCA claims copyright protection to any documents it produces, click here.

To read the continuation of Exhibits 6-8, click here.


Comments: 1

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  • I am completely dismayed by Mr. Buchel. He has no understanding for what MassMoCA is. I am dissappointed that he bungled his relationship with a wonderful up-and-coming art institution. I am embarrassed that my family was unable to see an exhibit in MassMoCA’s large gallery because Mr. Buchel is an arrogant and incompetent artist. Now that I’ve discovered the joy of MassMoCA, I make the trip at least annually with my young son. What is usually the highlight of the trip became a huge, sad dissappointment. Shame on you, Mr. Buchel.

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