No. 08-2199 IN THE United States Court of Appeals FOR THE FIRST CIRCUIT MASSACHUSETTS MUSEUM OF CONTEMPORARY ART FOUNDATION, INC., Plaintiff-Appellee, —v.— CHRISTOPH BÜCHEL, Defendant-Appellant . ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS BRIEF FOR DEFENDANT-APPELLANT CHRISTOPH BÜCHEL George T. Conway III (No. 88538) Elaine P. Golin (No. 124151) WACHTELL, LIPTON, ROSEN & KATZ 51 West 52nd Street New York, New York 10019 (212) 403-1000 John C. Blessington (No. 66967) Sara E. Yevics (No. 1132898) K&L GATES LLP State Street Financial Center One Lincoln Street Boston, Massachusetts 02111 (617) 261-3100 Attorneys for Defendant-Appellant Christoph Büchel d Case: 08-2199 Document: 00113948254 Page: 1 Date Filed: 03/02/2009 Entry ID: 5322416
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No. 08-2199
IN THE
United States Court of AppealsFOR THE FIRST CIRCUIT
MASSACHUSETTS MUSEUM OF CONTEMPORARY ART FOUNDATION, INC.,
Plaintiff-Appellee,—v.—
CHRISTOPH BÜCHEL,Defendant-Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MASSACHUSETTS
BRIEF FOR DEFENDANT-APPELLANTCHRISTOPH BÜCHEL
George T. Conway III (No. 88538)Elaine P. Golin (No. 124151)WACHTELL, LIPTON, ROSEN & KATZ51 West 52nd StreetNew York, New York 10019(212) 403-1000
John C. Blessington (No. 66967)Sara E. Yevics (No. 1132898)K&L GATES LLPState Street Financial CenterOne Lincoln StreetBoston, Massachusetts 02111(617) 261-3100
Statement of Jurisdiction .......................................................................................... 5
Statement of the Issues Presented............................................................................. 6
Statement of the Case ............................................................................................... 6
Statement of Facts..................................................................................................... 9
A. Christoph Büchel.................................................................................. 9
B. MASS MoCA recruits Büchel to create an installation at the museum.................................................................... 9
C. Büchel works on the installation in North Adams, but is hindered by the museums's organizational failures ........................................................................ 14
D. The museum claims to have run out of money................................................................................................. 19
E. "Plan B": MASS MoCA begins planning to exhibit the unfinished installation without Büchel's permission and continues working on the installation by itself ................................................................. 21
F. Museum employees recognize the impropriety and illegality of "Plan B" ................................................................... 24
G. The museum promotes and exhibits the unfinished work to journalists and others .......................................... 26
H. "An elephant behind a napkin": MASS MoCA opens Training Ground, partially covered, to the public, and critics judge it as Büchel's work ..................................... 29
POINT I THE DISTRICT COURT ERRED IN DISMISSING BÜCHEL'S CLAIM FOR DAMAGES UNDER VARA AND IN FAILING TO GRANT SUMMARY JUDGMENT FOR BÜCHEL ON THAT CLAIM ...................................... 36
A. The Visual Artists Rights Act of 1990 ............................................... 36
B. VARA applies to unfinished works of visual art ............................... 39
C. MASS MoCA modified and distorted Training Ground in violation of VARA ........................................................... 43
POINT II THE DISTRICT COURT ERRED IN DISMISSING BÜCHEL'S CLAIM FOR DAMAGES UNDER THE COPYRIGHT ACT AND IN FAILING TO GRANT SUMMARY JUDGMENT FOR BÜCHEL ON THOSE CLAIMS ................................. 50
A. Public Display .................................................................................... 50
B. Derivative Works ............................................................................... 52
Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303 (S.D.N.Y. 1994), rev’d on other grounds, 71 F.3d 77 (2d Cir. 1995) ...................................... 41
Dodd v. United States, 545 U.S. 353 (2005) ..................................................................................... 39
Flack v. Friends of Queen Catherine, Inc., 139 F. Supp. 2d 526 (S.D.N.Y. 2001) ............................................ 41, 42, 42n
Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985) ............................................................................... 48, 51
Lilley v. Stout, 384 F. Supp. 2d 83 (D.D.C. 2005)................................................................ 42
Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128 (1st Cir. 2006) .................................................................. 37, 38
Playboy Enters., Inc. v. Dumas, 831 F. Supp. 295 (S.D.N.Y. 1993) ............................................................... 41
RayMing Chang, Revisiting the Visual Artists Rights Act of 1990: A Follow-Up Survey About Awareness and Waiver, 13 TEX. INTELL. PROP. L.J. 129 (2005) ......................................... 42n
with the exhibition” that would “inform anyone viewing the exhibit that the mate-
rials assembled in Building 5 constitute an unfinished project that does not carry
out the installation’s original intent.” Add. 10-11; A1693-94.
Days later, however, MASS MoCA announced that, despite the district
court’s ruling, it would not exhibit the unfinished installation to the public, and that
it would dismantle the installation. A1708.2
On July 11, 2008, the district court issued its written opinion, now re-
ported at 565 F. Supp. 2d 245 (D. Mass. 2008). A11, 1704; Add. 21. Although the
court noted that some of the issues were “now moot,” the court nonetheless ad-
dressed all of the parties’ claims, and ruled in favor of MASS MoCA “on all
counts.” Add. 25; A1708. The court concluded that “[n]o right of artistic ‘attribu-
tion’ or ‘integrity,’ as those terms are conceived by VARA, is implicated, let alone
violated in these circumstances,” and that “the Copyright Act provides no mecha-
nism for relief, legal or equitable, [to Büchel] based on the [museum’s] decision …
to allow patrons to walk past covered components of an unfinished installation.”
Add. 26; A1709.
2 See also “We’ll Remove Training Ground,” The MASS MoCA Blog, http://blog.massmoca.org/ (Sept. 28, 2007) (museum announcement), available at http://tinyurl.com/mm928; Geoff Edgers, MASS MoCA To Dismantle Unseen Ex-hibit, BOSTON GLOBE, Sept. 26, 2007, at A1, available at http://tinyurl.com/bgl926.
made clear that he would not agree to allow MASS MoCA to open the installation
in its unfinished state. Complaining of the museum’s “organizational mistakes …
and curatorial mismanagement,” he told Joe Thompson that the museum “ha[d] to
face reality” and that “[I] will not allow you to open an unfinished show in my
name, since you are responsible for this major delay.” A655; see also A786.
Büchel also told Thompson that he was “totally disappointed” in the museum’s
failure to “respect[] my long experience in installing shows regarding my predic-
tions of how much time stuff takes to do and how it has to be done.” A655; see
also A786. Büchel pointed out that, due to the museum’s logisitical and manage-
rial failures, there were still “tons of stuff missing” from the installation, including
“four major structural parts of the show,” and that the museum “definitely ha[d] to
announce and accept th[e] fact” that “the show will not be finished in time.” A652.
On December 6, 2006, MASS MoCA finally announced a postponement.
The museum posted a candid explanation of the postponement on its website, ad-
mitting that the installation was “an order-of-magnitude more complex than any-
thing” it had ever done before, and stating that “the museum need[ed] more time to
provide the support” Büchel needed:
Due to logistical complexities encountered by the museum in prepar-ing galleries for Christoph Büchel’s vast installation, the exhibition’s official opening date – tentatively set for December 16th – will be re-scheduled….
“While MASS MoCA is known for undertaking intricate and dramati-cally-scaled installations, this one is an order-of-magnitude more complex than anything we have attempted up to now, requiring, among other things, vast cement walls comprised of over 2 miles of
cinder block, an immaculately detailed cinema, and thousands of spe-cific found objects, some of which weigh over 20 tons” said MASS MoCA Director Joseph Thompson. “Because of these logistical chal-lenges and some technical snags, the museum needs a bit more time to provide the support this extraordinary work deserves: we do not want to shortchange the quality of what promises to be a landmark work of art for lack of a few extra weeks.”
A981, 882-83, 922-23 (emphasis omitted and added).
Despite the museum’s organizational difficulties, Büchel and his assis-
tants worked day and night in North Adams—ten, twelve or more hours a day, in-
cluding weekends—on Training Ground in the waning weeks of 2007. A883, 923.
At the museum’s request, he even cancelled two other shows so that he could work
on the installation. A923, 786, 706-07, 535, 536. On December 17, 2006, after
working seven weeks straight at MASS MoCA, Büchel, as originally scheduled,
left North Adams for the Christmas holidays. He planned to return on January 8,
2007, in order to finish the work in time for a March 3, 2007 opening. A883, 923.
By the time Büchel left North Adams in December 2006, Training
Ground, in Büchel’s view, was only about 40 percent finished. A704, 790. Some
of the work’s structural elements had been built; Büchel and his assistants had
started to detail several containers, had constructed parts of the “Saddam Com-
pound” (including a hut and a “spiderhole” recreating the location where the mili-
tary had captured Saddam Hussein), and the building of the cinema had begun.
A883-84, 925. All of this reflected months of work by Büchel, including his eight
weeks in residence at MASS MoCA. A923, 883. Still, Training Ground remained
The museum’s response was to ignore Büchel’s requests. In a January
29, 2007 email, Büchel told Joe Thompson that “I have the impression that you
didn’t [respond to] most of the issues I raised in my letter” of January 16. A722.
Büchel’s email also objected that, in his absence, the museum did work on the in-
stallation that contradicted the artist’s instructions. A722. Büchel noted that the
museum’s “punch list contains stuff that was not at all approved by me and that we
didn’t talk about and was done completely wrong,” and that “there is a lot of stuff
not being done according to my instructions, which will cause again additional la-
bor, time and money.” A722-23.
E. “Plan B”: MASS MoCA begins planning to ex-hibit the unfinished installation without Büchel’s permission and continues working on the installation by itself.
At this point, the museum began planning to show the unfinished installa-
tion without Büchel’s permission. In a January 31, 2007 email, Joe Thompson in-
formed a potential $100,000 donor that the museum had been “saying no” to
Büchel’s requests “because we are out of space, time and money,” and that, as a
result, Büchel “is extremely upset with me and my staff (who he feels are incompe-
tent),” that “there is a high likelihood we will open the exhibition at it [sic] current
85% level of completion,” and that “there will be controversy surrounding my de-
cision to show the work as a failed work-in-progress.” A725. The email acknowl-
edged that “the exhibition in [its] partial state of completion … will not be a Chris-
the production manager] and Nato [Thompson, the curator] feel is known with
80% certainty,” and use whatever “items that we’re 80% sure [Büchel] would have
used,” Joe Thompson instructed his staff. A776, 1134 (emphasis added).
The museum was making its own artistic judgments, and was modifying
Büchel’s work accordingly. At his deposition, Thompson acknowledged that it
was “always difficult” to “read Christoph’s mind,” A506, 1250, and that MASS
MoCA’s work thus represented “our best reasonable guess as to what materials
[Büchel] would ultimately draw from. We knew we had some holes there.” A511,
1255 (emphasis added). Indeed, referring to one of the elements constructed by the
museum without Büchel’s guidance, Thompson testified: “I have no idea whether
he would ultimately approve it or not.” A511, A1255 (emphasis added). As a re-
sult, in its opening summary judgment brief below, the museum admitted that the
installation
[m]aterials as they now stand reflect significant aesthetic and design choices by MASS MoCA personnel, including with respect to the lay-out of the [m]aterials, and with respect to the selection and procure-ment of pre-existing buildings and vehicles that have been modified and incorporated into the [m]aterials.
A346 (emphasis added).
Thus, the museum made many modifications to the installation that
Büchel did not authorize; indeed, the museum actually defied Büchel’s instructions
by working on elements he told it not to touch. For example, with respect to the
house and the cinderblock wall that was supposed to go through it, Büchel ex-
does not return there is no artwork.” A775, A1133. Birch understood that the idea
was to send a “game over” message to Büchel to force him to return on MASS
MoCA’s terms, but warned that, even if Büchel came back, much of what the mu-
seum was doing would have to be redone, because it would not be approved by the
artist. A774.
Most importantly, Birch conceded that the museum’s Plan B would vio-
late Büchel’s intellectual property rights—it “may also put us in a place we do not
want to be (PR, politically and legally),” he warned. A775, A1133 (emphasis
added). Using a barnyard expletive, Birch warned that the museum would legally
be in “deep [trouble]” if the unfinished installation were perceived to be Büchel’s
work:
I am interested in protecting the museum from intellectual property is-sues. … It’s advertised as a Buchel show in our schedule. When they come to review it, the question will be “what is it?”… and if it’s re-viewed as a Buchel we’re in deep [expletive deleted].
A774 (emphasis added; second ellipsis in original).
Yet another museum employee, curator Susan Cross, similarly expressed
to Joe Thompson her view that Plan B would infringe Büchel’s intellectual prop-
erty rights. In a January 31, 2007 email, Cross told Joe Thompson that “I think
[the installation] is still art and still belongs to Buchel”:
Sue and Eric and I all agree that we need to be really careful.… I think we tend to forget that whether we’re doing the welding or not, there is an “author”—an artist for whom we shouldn’t make deci-sions.…
At what point, if at all, does an artist lose his right to owning the idea as his/her “intellectual property”? If the Buchel exhibition is not fin-ished and thus not art, then if we show it to people as is—is it Bu-chel’s intellectual property—is the unfinished work still “art” or is it just “stuff”—raw materials…. I think it is still art and still belongs to Buchel.…
A1105 (emphasis added).
G. The museum promotes and exhibits the unfin-ished work to journalists and others.
MASS MoCA nevertheless persisted in attempting to pressure Büchel by
proceeding with “Plan B.” Joe Thompson thus not only ordered the museum’s
work on the installation to continue, but he exhibited the installation and promoted
it to journalists and others—while clearly associating the unfinished work with
Büchel. The museum invited journalists, art critics, artists, museum donors and
sponsors, and public officials to see Büchel’s unfinished work and his archive and
the century.” A1108, A1244. Thompson also told the museum’s outside public-
relations and marketing consultant about the “Christoph Büchel show, which
should be renamed de-büchel,” that the museum was “thinking of opening … as an
abandoned work,” and about how “Richard Flood [curator of the New Museum of
Contemporary Art in New York] just saw it and said it was one of the best works
he’s seen in three years.” A1110, 1246.
The museum also actively promoted the unfinished work, and Büchel’s
involvement with it, to the media. In addition to the extensive efforts of the mu-
seum’s in-house director of marketing and public relations, see, e.g., A1270 (email
to media), Thompson himself testified that he had spoken about Büchel and the un-
finished work to at least a half-dozen newspapers and other periodicals—including
the New York Times, the Boston Globe, the Los Angeles Times, and Art+Auction.
A1252. The museum’s efforts to publicize the unfinished artwork yielded a March
28, 2008 article in the Boston Globe that reported how extensively “museum offi-
cials [were] showing off the unfinished project”:
[Joe] Thompson declined to speculate what would happen if Büchel doesn’t return to finish the installation. But the delay hasn’t stopped museum officials from showing off the unfinished project. Last month, museum directors and curators attending an arts conference in the Berkshires were led on a tour through Building 5. North Adams Mayor John Barrett III has been in twice, and in January, he brought along Governor Deval Patrick.
A795 (emphasis added). The news articles made clear that quite a number of jour-
nalists were shown the unfinished work. A794 (Boston Globe); A856, 858 (New
York Times).3
Just as he had refused to allow the museum to open the installation in its
unfinished state in December, Büchel in an April 9, 2007 email to Thompson ob-
jected strenuously to the museum’s exhibition and promotion of the incomplete,
distorted work—in particular, the museum’s repeated “allowing [of] the press,
politicians, curators, artist[s] and other people to see and make public a totally dis-
torted and unfinished installation, my source material and project ideas.” A811.
The museum’s conduct was “damag[ing] my art, intellectual property and reputa-
tion,” Büchel wrote, and the musuem’s failure to stop was “totally unprofessional,
a breach of the agreement and an illegal act of violating private and intellectual
property rights.” A811. Büchel added that, from pictures that had been provided
to him, it was clear that MASS MoCA was “install[ing] elements and details to-
tally wrong in the show, without my approval and against my intention, just in or-
3 A Boston Globe art blog, indeed, tartly asked, “who hasn’t” seen the installa-tion? Exhibitionist, http://www.boston.com/ae/theater_arts/exhibitionist/ (May 23, 2007 6:23 EST) (emphasis added), available at http://tinyurl.com/bgl523; see also Jock Reynolds, Letter to the Editor, N.Y. TIMES, Sept. 30, 2007, § 5, p. 5 (“I’ve also had many opportunities to view the Büchel installation in progress”); Anaba, http://anaba.blogspot.com/ (May 22, 2007 5:00 EST) (“I saw ‘the show’”), avail-able at http://tinyurl.com/anb522; BerkshireFineArts.com, Christoph Buchel Trashes Mass MoCA, available at http://tinyurl.com/bfa402 (Apr. 2, 2007) (giving “preview” of installation).
Much of this massive collection of materials remained visible to viewers
despite the supposed “reasonable steps … to control and restrict [their] view.”
A835, 1493. The claimed “reasonable steps” consisted of yellow tarps set up by
the museum. But as photographs in the record show, the tarps did not cover all of
Training Ground, and in no way did they conceal how elements of the installation
were arranged or Büchel’s design for how people were to flow through the installa-
tion. A934, 1095-98. As the photos reflect, viewers could see a great deal above
the tarps; and because the tarps did not go all the way down to the floor, anyone
could also look underneath the tarps to see Büchel’s unfinished, distorted work.
A1095-98.
And that is exactly what people did. As a writer on the leading art web
site ARTINFO.com put it, “those able to peek behind the yellow tarp in Building 5
will find [Büchel’s] war-torn suburb, reproduced on a one-to-one scale.” A862.
Another writer, Charles Giuliano, the publisher and editor of the Berkshire Fine
Arts web site, explained how “Mass MoCA is hiding an elephant behind a napkin,”
how it was easy “to see most of the work,” and how the exhibit was really a “peep
show”:
Today, I finally got around to visiting the show which under all the tarps is really kind of a conceptual peep show. It doesn’t take much effort or imagination to see most of the work. Sure it is off limits and no photos are allowed but the museum is kind of posturing to go along with the artist’s wishes that the work not be viewed in an “incom-plete” state. Mass MoCA is hiding an elephant behind a napkin.
A1488 (emphasis added). Another visitor described how “very little visual ob-
struction” the tarps provided:
[o]n August 24th, 2007, [I] toured MASS MoCA’s Building #5 and was able—with very little visual obstruction—to view Buchel’s art-work. … The 48″ tarps cover very little of Buchel’s installation. The pictures in this article clearly show that the tarp coverings serve not to occult Büchel’s unfinished work of art, but rather to evoke and pro-voke a voyeuristic desire on the part of the touring audience.
A1534 (with photographs).
In short, as Giuliano observed, the museum’s use of the yellow tarps was
simply “posturing”; MASS MoCA was only “wink, wink” complying with VARA.
As the Boston Globe’s art critic, Ken Johnson, described it, the tarps were there
merely “to propound the idea that the museum is not actually exhibiting Buchel’s
unfinished work and cannot therefore be sued for doing so.” A1126-27. “What is
at issue is a law called the Visual Artists Rights Act of 1990.” A1127. But the
Globe critic, like the others, told his readers what visitors to Building 5 could see
of the unfinished work—namely, a lot:
As you follow a path between the fencing that leads through the unfin-ished installation, you can see through openings below the tarps parts of cars, trucks, trailers, storage containers, and other objects close to the ground. And you can see rising above the fence the second story of a white clapboard house, shipping containers stacked 20 or more feet high, cinder-block walls topped by coils of barbed wire, a guard tower, and the upper part of an amusement-park carousel. At one end, there’s an almost completely reconstructed interior of an old movie theater. It is altogether a gloomy, frustrating, and not at all illuminat-ing experience.
And Johnson made clear that he believed that the display was plainly a
distortion of Büchel’s work—that “what Mass MoCA has done certainly misrepre-
sents Buchel’s art,” that “many people are going to judge him and his work on the
basis of this experience,” and that, in fact, people were already doing so:
Now, I’m not a lawyer, but it does appear to me as an art critic that what Mass MoCA has done certainly misrepresents Buchel’s art. Whether or not the exhibition is clearly labeled “unfinished” and whether or not Buchel is identified as its author, many people are go-ing to judge him and his work on the basis of this experience.
A1127 (emphasis added). Indeed, in concluding his Sunday Globe piece, Johnson
wrote that, by exhibiting the unfinished installation with the tarps and the anti-
Büchel document room, the museum had “exact[ed] revenge” upon Büchel by
“turning his project into a show that misrepresents, dishonors, vilifies, and even
ridicules him.” A1128 (emphasis added).
Other art critics agreed that the museum had distorted and misrepresented
Büchel’s work. Roberta Smith of the New York Times opined that “what is visible
above and below the tarps is barely the skeleton of a Büchel” work, and that the
display certainly gives viewers “an inaccurate sense of his art.” A1587-88. She
explained:
Mr. Büchel contends that the display damages his reputation. It will certainly give people unfamiliar with his obsessive, history-driven aesthetic an inaccurate sense of his art, and this is indeed a form of damage ….
On [one] wall newspaper articles and editorials about the controversy are pinned to the wall, although a scathing indictment of Mass MoCA by The Boston Globe’s art critic is absent.
The museum deserves to be scathed. Although there may be parts of the installation proper that Mr. Büchel considers finished, what is visible above and below the tarps today is barely the skeleton of a Büchel. It’s just a lot of stuff.
A1587-88 (emphasis added). Similarly, Time magazine’s art and architecture
critic, Richard Lacayo, agreed that MASS MoCA had “misrepresent[ed] [Büchel’s]
work.” A114-15.
Moreover, as the Globe’s Johnson pointed out, people did “judge [Büchel]
and his work on the basis of [their] experience” looking around and past the yellow
fences. Johnson himself cited one instance in which a critic condemned Büchel’s
work on the basis of what he could see behind the tarps:
Indeed, one critic has already gone on record. Writing in Commen-tary Magazine, Michael J. Lewis observed, “Having inspected it Thursday afternoon, I am not sure that it suffers from being en-veiled.…”
A1127 (emphasis added). The Berkshire Fine Arts critic, Giuliano—the one who
said MASS MoCA was “hiding an elephant behind a napkin”—was likewise happy
to condemn Büchel’s work based on what he could see through the tarps. Titling
his piece “Christoph Buchel’s Tarp Art at Mass MoCA: Crap Under Wrap,”
A1487, Giuliano concluded that it would be “a huge mistake” to take down the
tarps because Büchel’s work offered “virtually nothing of substance or interest,”
and that, indeed, the installation was nothing but “junk.” A1488 (emphasis added).
works of art they create, and that they are not identified with works created by oth-
ers. The latter allows artists to protect their works against modifications and de-
structions that are prejudicial to their honor or reputations.” H.R. REP. NO. 101-
514, at 5, reprinted in 1990 U.S.C.C.A.N. at 6915; accord, e.g., Phillips, 459 F.3d
at 133; Carter, 71 F.3d at 81. These moral rights “are analogous to those protected
by Article 6bis of the Berne Convention.” Phillips, 459 F.3d at 133 (quoting Car-
ter, 71 F.3d at 81).
Accordingly, in pertinent part, VARA provides quite simply and straight-
forwardly that “the author of a work of visual art”
(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and
(3) … (A) to prevent any intentional distortion, mutilation or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right.
17 U.S.C. § 106A(a)(2), (3). VARA also contains a detailed provision governing
the waiver of moral rights under the act. An artist may waive her VARA rights,
but only if she “expressly agrees to such waiver in a written instrument signed by”
her. Id. § 106A(e)(1) (emphasis added).
Like any other statute, VARA must be applied by its plain terms. For
“when the statute’s language is plain, the sole function of the courts—at least
where the disposition required by the text is not absurd—is to enforce it according
Apart from the inconsistency of its analysis, the court’s suggestion that
VARA does not protect unfinished work is simply wrong. Even MASS MoCA did
not press this point: at oral argument below, the museum’s counsel agreed with
Büchel “that VARA does apply to unfinished works of art,” and that VARA “ap-
plies to finished and unfinished works of art equally.” A1665 (emphasis added).
The museum’s counsel put it aptly: “I can’t take a finished painting and intention-
ally deface it and show it as the artist’s work. I can’t take an unfinished painting
by the artist and deface it and show it as the artist’s work.” A1665 (emphasis
added).
The concession is compelled by statute. VARA is part and parcel of the
Copyright Act, and the Copyright Act’s definition section, 17 U.S.C. § 101, fully
applies to VARA. Section 101, for example, defines “work of visual art” (as a
“painting, drawing, print, or sculpture, existing in a single copy….”), and thus lim-
its the scope of the protections under VARA. More to the point here, one of the
Copyright Act’s definitions expressly tells us when a work of art is created—and
states that such a work may not be done, that it may be changing, but that it is pro-
tected nonetheless:
A work is “created” when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different ver-sions, each version constitutes a separate work.
Id. Section 101 also establishes when a work is “fixed” for purposes of the defini-
tion of “created” as well as the rest of the statute:
A work is “fixed” in a tangible medium of expression when its em-bodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.
Id. (Emphasis added.) These definitions make clear that “[c]opyright … thus ex-
ists even in works in progress.” Dumas v. Gommerman, 865 F.2d 1093, 1097 (9th
Cir. 1989); accord Playboy Enters., Inc. v. Dumas, 831 F. Supp. 295, 314
(S.D.N.Y. 1993) (“the [Copyright] Act protects works in progress”).
VARA’s legislative history, moreover, confirms that the statute protects
unfinished or intermediate works. The House Report listed various examples of
works, both preliminary and final, that Congress intended to protect under VARA.
“The term ‘sculpture’ includes, but is not limited to, castings, carvings, modelings,
and constructions. … The photographs encompassed by the definition … covers
both positives (for example, prints, contact sheets, and transparencies such as
slides) and negatives (negative photographic images or transparent material used
for printing positives) of a photograph.” H.R. REP. NO. 101-514, at 11, reprinted
in 1990 U.S.C.C.A.N. at 6921.
Likewise, the case law under VARA recognizes, both implicitly and ex-
plicitly, that the statute protects unfinished works. Carter v. Helmsley-Spear in-
volved an unfinished work, but neither the Second Circuit nor the district court
there suggested that the work would be unprotected for that reason. See 71 F.3d at
81; Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303, 310-11 (S.D.N.Y. 1994),
rev’d on other grounds, 71 F.3d 77 (2d Cir. 1995). And in Flack v. Friends of
Queen Catherine Inc., 139 F. Supp. 2d 526, 529-32 (S.D.N.Y. 2001), the artist, to
create a bronze statue, had first created a clay sculpture of the statue, and she al-
leged that the defendants had violated VARA by distorting the head of the clay
sculpture. The defendants argued that only the final “statue, and not any interme-
diate work, is eligible for VARA protection.” Id. at 532. The court squarely re-
jected this contention, holding that “regardless of its status as an impermanent or
intermediate stage in the creation of the 35′ bronze, the 35′ clay sculpture falls un-
der VARA’s protection if it meets the statutory definition of ‘a work of visual
art.’” Id. (citing 17 U.S.C. § 101). The court noted as well that “[t]he ‘prelimi-
nary’ work of painters—drawings and sketches—is unquestionably covered by
VARA.” Id. at 534. And the court held that “[w]hether the [clay] sculpture was
ever put together [into a single unitary sculpture] is irrelevant, … as each individ-
ual sculptured part could be analyzed as a separate work for purposes of VARA.”
Id. at 532 n.3; accord Lilley v. Stout, 384 F. Supp. 2d 83, 88 (D.D.C. 2005) (“Con-
trary to defendant’s assertion, VARA does not pose a per se bar to protection for
preparatory works, such as studies”).4
4 See also RayMing Chang, Revisiting the Visual Artists Rights Act of 1990: A Follow-Up Survey About Awareness and Waiver, 13 Tex. Intell. Prop. L.J. 129, 135 (2005) (“The work does not have to be ‘final’ to be covered by VARA; ‘pre-liminary’ work such as drafts and sketches are covered”; citing Flack, 139 F. Supp. 2d at 534). In support of its suggestion that unfinished works cannot be protected under VARA, the district court relied upon Flack’s statement that “VARA most decid-edly does not cover works that do not yet exist.” A1729 (quoting Flack, 139 F. Supp. 2d at 535). That statement, however, was a rejection of the artist’s separate claim that VARA required the defendants to complete the unfinished work. Flack,
In short, when Joe Thompson brought in friends, dignitaries, and journal-
ists to see what he called “[t]he best unfinished work of art of the century,” A1108,
1244, and when the museum let the public “pass through the Building 5 gallery
housing the materials and the unfinished fabrications that were to have comprised
elements of Training Ground for Democracy,” A835, 1493, the museum was ex-
hibiting a work of visual art that was unquestionably protected by the Copyright
Act and VARA.
C. MASS MoCA modified and distorted Training Ground in violation of VARA.
Accordingly, the VARA damages claim in this case turns upon whether
MASS MoCA engaged in “any intentional distortion, mutilation or other modifica-
tion of that work which would be prejudicial to [Büchel’s] honor or reputation,” 17
U.S.C. § 106A(a)(3)(A), or whether it “use[d] [Büchel’s] name as the author of the
work of visual art in the event of a distortion, mutilation, or other modification of
the work which would be prejudicial to his or her honor or reputation,” id.
§ 106A(a)(2). The evidence on the cross-motions for summary judgment indis-
putably shows such modifications or distortions of Büchel’s work in violation of
VARA. Summary judgment on liability should have been entered for Büchel, not
________________________ (footnote continued)
139 F. Supp. 2d at 535. It was the hypothesized finished work that was unpro-tected by VARA because it did not yet exist; but VARA did protect the physically existing intermediate work, the clay sculpture, just as it protects the unfinished but physically existing Training Ground.
artist’s professional and personal identity is embodied in each work created by that artist. Each work is a part of his/her reputation. Each work is a form of personal expression (oftentimes painstakingly and earnestly recorded).
H.R. REP. NO. 101-514, at 15, reprinted in 1990 U.S.C.C.A.N. at 6925. To present
an artist’s work before this “painstaking[]” process of “personal expression” is
completed, and before the artist deems it worthy of presentation, thus distorts the
“personal identity … embodied in [his] work,” and damages the artist’s profes-
sional reputation, because peers and critics would erroneously consider the unfin-
ished work as reflecting the artist’s capabilities and expression. Id. By analogy,
no judge would want her own or her law clerk’s draft opinion published as her
work, and no writer would want his draft manuscript released to the world as his
book. Indeed, because “[t]he period encompassing [a] work’s initiation, its prepa-
ration, and its grooming for public dissemination is a crucial one …,” the Copy-
right Act recognizes that “[p]ublication of an author’s expression before he has
authorized its dissemination seriously infringes the author’s right to decide when
and whether it will be made public ….” Harper & Row Publishers, Inc. v. Nation
Enters., 471 U.S. 539, 551, 555 (1985); see, e.g., Seshadri v. Kasraian, 130 F.3d
798, 805 (7th Cir. 1997) (“Implicit in the copyright holder’s exclusive right to dis-
tribute copies of his work to the public … is the right not to publish the work”); cf.
17 U.S.C. § 106A(a)(1) (VARA protects right “to claim authorship or the work”).
The record evidence, both expert and fact, makes clear that the presenta-
tion of Training Ground in an unfinished state, even apart from the museum’s
modifications of it, distorted Büchel’s work to his reputational detriment. Robert
Storr, Dean of the Yale University School of Art, an expert well familiar with the
standards of the artistic community, submitted an affidavit below. He opined that
In my view, under no circumstances should a work of art be shown to the public until the artist has determined that it is finished. Speak-ing as someone who has commissioned or sponsored many compara-ble artistic projects, I strongly maintain that public institutions that act as sponsors for art projects should only do so with the full knowledge that those projects may not meet their expectations, and, in the end may even prove unfeasible.…
I further believe that to show an artist’s unfinished work against his wishes, in itself, amounts to an inherent distortion of the work and accordingly may be prejudicial to that artist and to public perception of the artist’s intentions and overall achievement. In sum, should such a presentation be made at the sole discretion of a sponsoring in-stitution, it not only runs counter to the interests of the artist but also to those of the public.
A1275-76 (emphasis added).
But the best evidence that presenting an unfinished work constitutes a dis-
tortion comes from MASS MoCA’s production manager, Dante Birch, who
warned Joe Thompson that the installation was “advertised as a Buchel show in our
schedule. When they come to review it, the question will be ‘what is it?’ … and if
it’s reviewed as a Buchel, we’re in deep [expletive deleted].” A774 (emphasis
added; ellipsis in original). Büchel’s unfinished work was indeed reviewed as a
Büchel, just as Birch foresaw. MASS MoCA distorted Büchel’s work, harmed his
honor and reputation, and violated VARA.
II. THE DISTRICT COURT ERRED IN DISMISSING BÜCHEL’S CLAIMS FOR DAMAGES UNDER THE COPYRIGHT ACT AND IN FAILING TO GRANT SUMMARY JUDGMENT FOR BÜCHEL ON THOSE CLAIMS.
The district court also erred in granting summary judgment to MASS
MoCA on Büchel’s third, fourth and fifth counterclaims, which alleged violations
of Büchel’s exclusive rights under the Copyright Act to display Training Ground
for Democracy publicly and to prepare derivative works from it. Here again,
MASS MoCA failed to present evidence that would enable “a reasonable jury to
return a verdict” in its favor. Velásquez-García v. Horizon Lines of Puerto Rico,
Inc., 473 F.3d at 15 (citations omitted).
A. Public Display
Büchel’s third counterclaim sought damages under Section 106(5) of the
Copyright Act, which gives owners of copyrighted works the exclusive right “to
display the copyrighted work publicly.” 17 U.S.C. § 106(5); see A42-43. To “dis-
play” a work means “to show a copy of it, either directly or by means of a film,
slide, television image, or any other device or process….” Id. § 101 (definition of
“display”). A “cop[y]” includes “the material objects … in which the work is first
fixed”—in other words, the original. Id. (definition of “copies”). Accordingly,
MASS MoCA’s showing of Training Ground for Democracy in Building 5 was a
public display of a copy of the work, in violation of Büchel’s rights as copyright
tarp-covered and uncovered derivative versions of the installation constituted unau-
thorized derivative works based upon the model and plans for the installation.
CONCLUSION
It is respectfully submitted that the judgment of the district court should
be reversed, and that the case should be remanded to the district court for an award
of actual or statutory damages under Section 504 of the Copyright Act, 17 U.S.C.
§ 504.
February 27, 2009
CHRISTOPH BÜCHEL By his attorneys, /s/ GEORGE T. CONWAY III George T. Conway III (No. 88538) Elaine P. Golin (No. 124151) WACHTELL, LIPTON, ROSEN & KATZ 51 West 52nd Street New York, New York 10019 (212) 403-1000 John C. Blessington (No. 66967) Sara E. Yevics (No. 1132898) K&L GATES LLP State Street Financial Center One Lincoln Street Boston, Massachusetts 02111 (617) 261-3000
I hereby certify that two paper copies of this Brief for Defendant-Appellant Christoph Büchel, and one disk, were sent by Federal Express Next Business Day Delivery to:
Kurt Wm. Hemr (No. 48253) Lindsay Dickerson (No. 1134948) Skadden, Arps, Slate, Meagher & Flom LLP One Beacon Street Boston, Massachusetts 02108 (617) 573-4800 Attorneys for Plaintiff-Appellee Massachusetts Museum of Contemporary Art Foundation, Inc
I also certify that the original brief, nine copies and one disk were also shipped via by Federal Express Next Business Day Delivery to:
Clerk of Court United States Court of Appeals, First Circuit
1 Courthouse Way, Suite 2500 Boston, Massachusetts 02210