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 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.

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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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.

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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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

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I never met Ruben Verdu. This is not quite true. I met him in 1997 in a large warehouse-turned-loft in the then still desolate Willamsburg, Brooklyn. But I didn’t really meet him, because although he appeared for a minute to grab a bite, he was gone before I had time to converse with him. I saw him again atop a Brooklyn roof bar-b-q about a week later, and we spoke for a few minutes.

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