Friday, August 23, 2019

UPDATE: Judge Denies MASS MoCA’s Request To Keep Artists From Making Art

On Friday, August 17, 2007, a Massachusetts Magistrate Judge denied MASS MoCA’s request to keep litigation documents confidential and from public view. Aside from very limited set of documents, the Magistrate Judge ruled that nothing is to be kept confidential. Büchel submitted his opposition to MASS MoCA’s request for an emergency motion for protective order on Thursday, arguing that MASS MoCA’s request would violate the First Amendment of the U.S. Constitution by not allowing either party or the public to disclose and discuss tesimony given or documents produced during litigation.

Büchel argued that in order for a Court to grant the Museum their request to keep records confidential, under the current legal standard the Museum would have to show a compelling reason as to why their request should be granted. In other words, the good cause standard would have been met if the Museum had established that disclosure of documents would cause a clear, specific, and serious injury to the Museum. Instead, and with the exception of a limited set of documents, the Magistrate Judge found that the Museum’s arguments were based on conclusory statements and not on a particular factual demonstration of potential harm.

In effect, Büchel’s attorneys argued that MASS MoCA “sued an artist claiming a right to charge the public to view a display of his unfinished work thus [now] claims that it is aggrieved by the artist having the temerity to make art out of the museum’s use of the legal process to take control of his creation.”


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.

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Understanding MASS MoCA’s Actions

Recent emails and comments on art blogs seem to indicate a general misunderstanding regarding the MASS MoCA v. Büchel lawsuit. A short clarification is in order.

The main misdiagnosis that must be addressed is the continued misunderstanding which looks at this debate in terms of who was at fault or the claim that the museum “owns what it buys.” These flawed arguments miss the point not by inches, but by miles. Artists, art critics, and art bloggers must understand that the social and professional discourses which dictate and mitigate artistic production and artworld interactions do not necessarily apply within the larger judicial and legal frameworks. In this case omnipresent legal protections for an artist–which are automatically available and triggered–trump affective and social interrelations.

In order to address the blind argument relying on “fault,” the first fact that must be understood is that there was no written agreement between the museum and Büchel, which clearly indicates the availability of a legal structure in which this fiasco could have been avoided. Simply put, what MASS MoCA and Mr. Thompson should have done to protect their monetary investment is what any first year law student learns during the first week of law school. That is, draft an agreement. This is especially true when one of the parties (in this case the museum) is in a higher position of power and in a position to know better. The fact that they didn’t do so, and knew, or should have known, will most likely favor Büchel. (Incidentally, other options available to MASS MoCA are those also known to any first year law student under contract law, such as the doctrines of implied in-fact or implied in-law contract, unjust enrichment, and unconscionability.)

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CLANCCO Obtains Email Correspondence Between MASS MoCA and Büchel

CLANCCO has just obtained the official court documents containing MASS MoCA’s affirmative defenses as well as email correspondence between the Museum’s director, Joseph Thompson, and the artist Christoph Büchel.

Due to the size of the digital files, CLANCCO is unable to post the 132-page PDF document here, but would be more than happy to provide them to any person and/or institution wishing to read them.

The affirmative defenses can be read beginning on page 14, and the 20 Exhibits containing the email correspondence, financial breakdowns, and other documents begin on page 21.

If you would like to receive this 132-page document via PDF form, please click here.

Note: The ongoing and pressing lawsuit by MASS MoCA against artist Christoph Buchel has made national news in Switzerland, getting coveraga on the television channel Schweizer Fernsehen’s Kultureplatz. In this coverage, in Swiss/German, the downfall of a once potentially lucrative joint-venture is covered, examining the negative implications this lawsuit would have on visual artists on a national and international scale.


MASS MoCA Counterclaims Arguing Büchel Project Is Not Art

Update: July 24, 2007

On July 13th, Judge Ponsor, of the U.S. District Court for the District of Massachusetts ordered a scheduling order for the next hearing in the lawsuit by MASS MoCA against Christoph Büchel. There will be a an inspection and photographing of the exhibition site by August 17, 2007, and the Court will take a view of the pertinent premises of MASS MoCA’s facilities on September 18th.

Dispositive motions will be filed by both parties, and on September 21st the Court will make an effort to rule on any dispositive motions made by both parties, from the bench. A dispositive motion is a motion seeking a trial court order entirely disposing of one or more claims in favor of the moving party without need for further trial court proceedings. “To dispose” of a claim means to decide the claim in favor of one or another party.

Previous to this court order, MASS MoCA’s counsel, Kurt Wm Hemr, of Skadden Arps, replied to Büchel’s counterclaims, with affirmative defenses, by denying each and every allegation contained in Büchel’s counterclaim introduction, except that it “admitted to entering into an agreement with Büchel regarding a planned Exhibition to be located in MASS MoCA’s football field-sized Building 5 gallery.”

A brief explanation of an affirmative defense is in order. An affirmative defense is a category of defense used in litigation between private parties in common law jurisdictions. Affirmative defenses operate to limit or excuse or avoid a defendant’s criminal culpability or civil liability, even if the factual allegations of plaintiff’s claim are admitted or proven. An affirmative defense must be timely pleaded by the defendant in order for the court to consider it, or else it is considered waived by the defendant’s failure to assert it. Because an affirmative defense requires an assertion of facts beyond those claimed by the plaintiff, generally the party making an affirmative defense bears the burden of proof.

Now back to MASS MoCA’s affirmative defenses. Where it did not deny allegations, MASS MoCA either alleged to be without knowledge or information sufficient to admit or deny the allegations, or it simply denied each and every allegation contained in Büchel’s counterclaims.

The most elucidating part of MASS MoCA’s defense is predicated on affirmative defenses that should arouse suspicion and distrust on the part of any visual artist toward any cultural institution. Out of the twenty-nine affirmative defenses, MASS MoCA is claiming that Büchel’s counterclaims are barred because “the materials that are the subject matter of [Büchel’s] Counterclaims do not contain sufficient original expression on the part of Büchel to be protected under the [U.S.] Copyright Act.”

Alternatively, MASS MoCA argues that Büchel’s counterclaims are barred because MASS MoCA is “a joint owner of any copyright in the Materials which are the subject matter of Büchel’s counterclaims.”

More alarming is MASS MoCA’s argument that they are the lawful owners of the materials which are the subject matter of this dispute, and thus allowed to display them publicly.

But this isn’t the end of this wonderful yarn of fiction. MASS MoCA further argues that Büchel’s work is not even art, but simply a compilation of materials which, if accepted by the Court, would not be granted protection under the Visual Artists Rights Act of 1990 (VARA). If in fact the Court decides that VARA does apply, MASS MoCA argues that any modification to the “materials” which may have happened is allowed by VARA under the “conservation or placement” exception, and/or that the doctrine of “fair use” would allow MASS MoCA to display Büchel’s project without infringing the Copyright or VARA Acts.

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

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Cockfighting and the Internet

Advanced consulting and Marketing , the company that broadcasts cockfights on the internet filed suit in federal court in Miami on Tuesday to challenge largely untested federal law that makes it a crime to sell depictions of animal cruelty regardless of whether or not it was legal where it happened so long as it was illegal where the depictions were sold. The only exceptions to this rule are depictions of animal cruelty which are for serious religious, political, scientific, educational, journalistic, historical or artistic value.

However, this raises a First Amendment issue; specifically, whether or not the government can ban depictions of illegal conduct as opposed to the conduct itself. Additionally, the company says it broadcasts the cockfights from Puerto Rico, where they are not illegal.

This federal law, enacted by President Bill Clinton in 1999, was to be narrowly interpreted, and its constitutionality is currently at issue in a case before the federal appeals court in Philadelphia, in which a Virginia man was sentenced to three years in prison for selling videotapes of dog fights.

Eugene Volokh, professor of law at the University of California at Los Angeles believes the law is unconstitutional: “The speech does not fall into any existing First Amendment exception.” This seems to hold true, particularly because the principle of the law, as written, would ban the depiction of criminal events by humans which are shown on YouTube or any other media network.


Update on Nussenzweig v. diCorcia Case (July ’07)


The Nussenzweig v. diCorcia Case is hardly over. Nussenzweig is now appealing the recent decision from New York’s Appellate Division, where the Court affirmed the lower court ruling that diCorcia did not invade Nussenzweig privacy and that diCorcia did not use the photograph of Nussenzweig for commercial purposes. A brief recapitulation of the case follows below.

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