UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT _______ No. 08-2199 _______ 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 OF PLAINTIFF-APPELLEE MASSACHUSETTS MUSEUM OF CONTEMPORARY ART FOUNDATION, INC. _______ Dated: April 2, 2009 Of Counsel: John L. Gardiner Elizabeth A. Hellmann SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP Four Times Square New York, New York 10036 (212) 735-3000 Kurt Wm. Hemr Lindsay R. Dickerson SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP One Beacon Street Boston, Massachusetts 02108 (617) 573-4800 Counsel for Plaintiff-Appellee Massachusetts Museum of Contemporary Art Foundation, Inc. Case: 08-2199 Document: 00115710072 Page: 1 Date Filed: 04/03/2009 Entry ID: 5331949
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UNITED STATES COURT OF APPEALSFOR THE FIRST CIRCUIT
_______
No. 08-2199_______
MASSACHUSETTS MUSEUM OF CONTEMPORARYART FOUNDATION, INC.,
Plaintiff-Appellee,
v.
CHRISTOPH BÜCHEL,Defendant-Appellant.
_______
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
_______
BRIEF OF PLAINTIFF-APPELLEEMASSACHUSETTS MUSEUM OF CONTEMPORARY
ART FOUNDATION, INC._______
Dated: April 2, 2009
Of Counsel:John L. GardinerElizabeth A. HellmannSKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLPFour Times SquareNew York, New York 10036(212) 735-3000
Kurt Wm. HemrLindsay R. DickersonSKADDEN, ARPS, SLATE,
STATEMENT OF FACTS .....................................................................................4
1. The Parties ..........................................................................................4
2. In 2005-2006, MASS MoCA And BüchelEnter Into Preliminary Discussions Regarding AnInstallation For MASS MoCA's Premier Art Space -- Building 5 .......5
3. In August 2006, MASS MoCA And Büchel Begin Work On ThePlanned Installation Despite Büchel's Short Stay In North Adams ......6
4. After Büchel Leaves North Adams In August 2006,MASS MoCA Continues To Work On The PlannedInstallation In Accordance With Büchel's Instructions ........................9
5. Büchel Belatedly Returns To North AdamsTo Work On The Planned Installation AndProvides Corrective Instructions When He ChangesHis Mind Or Is Not Satisfied With The Work Performed..................11
6. In December 2006, Büchel Goes On Strike And DemandsThat MASS MoCA Delay The Opening Of The PlannedInstallation And Accept Sole Responsibility For The Delay .............12
7. Büchel Meets With Visitors To The PlannedInstallation During His Stay In North Adams....................................13
8. Büchel Prepares To Leave NorthAdams And Provides Detailed Instructions ForWork To Be Performed By MASS MoCA In His Absence ...............15
9. Büchel Declines The Opportunity To BePresent For The Installation Of A Major ComponentOf The Planned Installation -- An Entire House -- AndInstead Entrusts The Task To MASS MoCA Personnel ....................16
10. Büchel Understands And Expects That MASS MoCAWill Work On The Planned Installation In His Absence ...................19
11. Büchel Delivers An Ultimatum;MASS MoCA Tries In Vain To Negotiate His Return ......................20
12. In Büchel's Absence, MASS MoCA PersonnelContinue Working Pursuant To His Pre-DepartureInstructions In Anticipation Of His Hoped-For Return......................24
13. MASS MoCA Cancels ThePlanned Installation And AnnouncesThe Opening Of A New Exhibit, "Made At MASS MoCA" .............28
14. The District Court Finds For MASS MoCA;MASS MoCA Chooses To Remove The Planned Installation...........29
SUMMARY OF THE ARGUMENT....................................................................32
1. Work Performed On The PlannedInstallation By MASS MoCA PersonnelWas Not A Distortion, Mutilation Or ModificationAnd Was Not Prejudicial To Büchel's Honor Or Reputation...40
2. Covering The Planned Installation WithTarpaulins And Other View Restricting MeasuresWas Not A Distortion, Mutilation Or ModificationAnd Was Not Prejudicial To Büchel's Honor Or Reputation...47
3. Any Display Of The Unfinished Planned InstallationWas Not A Distortion, Mutilation Or ModificationAnd Was Not Prejudicial To Büchel's Honor Or Reputation...50
C. There Was No Violation Of Büchel's Right Of Attribution ...............52
III. MASS MOCA DID NOT VIOLATE ANY OF BÜCHEL'SRIGHTS UNDER THE COPYRIGHT ACT TO DISPLAY THEUNFINISHED WORK OR TO CREATE DERIVATIVE WORKS ...........55
A. The Planned Installation Was Not Publicly Displayed ......................56
B. MASS MoCA Is The Lawful Owner OfThe Planned Installation And Would Have Been EntitledBy The Copyright Act To Display The Work To The Public ............57
C. No Derivative Work Was Created.....................................................58
Carter v. Helmsley-Spear, Inc.,861 F. Supp. 303 (S.D.N.Y. 1994),rev'd in part on other grounds, 71 F.3d 77 (2d Cir. 1995)......................35, 51
Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc.,499 U.S. 340 (1991)..............................................................................59, 60
Fisher v. Klein,16 U.S.P.Q. 2d 1795 (S.D.N.Y. 1990) ........................................................43
Flack v. Friends of Queen Catherine, Inc.,139 F. Supp. 2d 526 (S.D.N.Y. 2001) .........................................................39
Lee v. A.R.T. Co.,125 F.3d 580 (7th Cir. 1997).......................................................................59
Mass. Museum of Contemporary Art Found., Inc. v. Büchel,565 F. Supp. 2d 245 (D. Mass. 2008)...................................................passim
Phillips v. Pembroke Real Estate, Inc.,459 F.3d 128 (1st Cir. 2006) .................................................................39, 45
Seshadri v. Kasraian,130 F.3d 798 (7th Cir. 1997).......................................................................55
Streeter v. Rolfe,491 F. Supp. 416 (W.D. La. 1980) ..............................................................56
Visual Artists Rights Act of 1989: Hearing on H.R. 2690 Before the Subcomm. onCourts, Intellectual Property, and the Admin. of Justice of the H. Comm. onthe Judiciary, 101st Cong. (1989) ................................................... 34, 37, 38
ARTICLES PAGE(S)
Cyrill P. Rigamonti, Deconstructing Moral Rights,47 Harv. Int'l L.J. 353 (2006) .......................................................... 35, 50, 51
Geoff Edgers, Art without the artist,Bos. Globe, Jan. 6, 2008, at D1...................................................................43
Alix Browne, Big Bambú,N.Y. Times Mag., Mar. 29, 2009, at 47.......................................................43
After expedited yet comprehensive discovery, including an on-site
viewing of the unfinished installation by the District Court, Judge Ponsor
ultimately determined that MASS MoCA was entitled to display the unfinished
installation. After consideration, MASS MoCA opted not to display the unfinished
installation, but to remove it to make room for another scheduled exhibition.
The District Court also determined that MASS MoCA was entitled to
summary judgment in its favor on Büchel's counterclaims under the Copyright Act
and Visual Artists Rights Act of 1990 ("VARA").
The only issue for this Court on this appeal is whether Büchel should
be permitted to assert those counterclaims seeking money damages by reason of:
(i) MASS MoCA's work on the unfinished installation after Büchel'sDecember 2006 departure, in anticipation of his eventual return;
(ii) MASS MoCA's use of tarpaulins and other reasonable measures torestrict public view of the unfinished installation while this action waspending; and
(iii) MASS MoCA's allegedly permitting certain guests of the museum toview the unfinished installation on a few occasions.
As a matter of the clear statutory language and simple practicality, the District
Court was correct in granting summary judgment in favor of MASS MoCA on
those claims. Büchel is not entitled to any -- let alone "a very very big amount
of" -- money damages on these claims.
The judgment of the District Court should be affirmed in all respects.
Although MASS MoCA necessarily works on a lean budget,7 in the
end the museum contributed approximately $300,000, including the cost of many
of the materials collected, to build the exhibit.8 Indeed, as the District Court noted:
"It is undisputed that nearly all the expenses for creating the installation were
eventually carried by the museum." Mass. Museum of Contemporary Art Found.,
Inc. v. Büchel, 565 F. Supp. 2d 245, 250 (D. Mass. 2008) ("MASS MoCA").
Beginning in March 2006 and throughout the spring and early summer,
MASS MoCA requested that Büchel provide a drawing of the planned installation
(the "Planned Installation") to facilitate MASS MoCA's planning.9 However, it
was not until early July that Büchel provided MASS MoCA with a "drawing" of
the Planned Installation by sending a video recording.10
3. In August 2006, MASS MoCA And Büchel Begin Work On ThePlanned Installation Despite Büchel's Short Stay In North Adams
In March 2006, Büchel and MASS MoCA agreed that Büchel would
visit MASS MoCA in August 2006 for approximately one month to work on the
7 MASS MoCA programs and operates its spaces for a combined cost of $38 persquare foot, versus an industry average of $127. MASS MoCA's per-visitorexpenditures are also substantially below national averages. A. 4:1385 (2dThompson Decl. ¶ 8).
Planned Installation.11 When August came, however, Büchel visited MASS
MoCA from approximately August 21 to August 30 -- only ten days.12
During that visit, MASS MoCA and Büchel agreed that Büchel would
work with MASS MoCA to present an installation in Building 5. The Planned
Installation was to be titled "Training Ground for Democracy" and was to be a
village through which visitors could walk and climb.13 Büchel conceived of the
Planned Installation in this way:
It was to adopt the role-play of U.S. military training for its visitors,who would be given the opportunity to 'virtually' change their ownvarious identities in relation to the collective project called'democracy': training to be an immigrant, training to vote, protest, andrevolt, training to loot, training iconoclasm ....14
During his ten-day stay at MASS MoCA, Büchel, together with
MASS MoCA, developed a model for the Planned Installation.15 That model
included, among other things, a movie theater, numerous sea containers, a mobile
home, a carnival midway, a cinderblock wall and a bar.16 The house depicted in
11 A. 2:582, 588.
12 A. 2:529 (Büchel Tr. 36:22-37:3).
13 A. 2:917 (Affidavit Of Christoph Büchel ¶ 8 ("Büchel Aff.")).
14 Id.
15 A. 1:426 (Transcript Of Deposition Of Joseph C. Thompson 127:14-128:16("Thompson Tr.")); A. 2:531 (Büchel Tr. 42:22-43:8).
16 A. 1:429 (Thompson Tr. 134:20-136:11, 139:10-140:23); A. 2:602.
MoCA also agreed that MASS MoCA would collect and purchase materials for the
Planned Installation, which would open on December 16, 2006.22 In the end,
MASS MoCA procured the numerous materials that were collected and partially
assembled in Building 5.23
4. After Büchel Leaves North Adams In August 2006,MASS MoCA Continues To Work On The PlannedInstallation In Accordance With Büchel's Instructions
During September 2006, following guidance from Büchel, who was
not in North Adams to oversee the process, MASS MoCA collected materials for
potential use in the Planned Installation, including, among other things, nine sea
containers, two small trailers, a media van, a mobile home, and numerous small
items.24 As the District Court noted, during this period:
[T]he absence of the artist from the site and the level of generality ofhis commands required the museum to act to some extent on its own,attempting to follow the artist's broad directives subject to his laterapproval, disapproval, or suggestions for modification.
MASS MoCA, 565 F. Supp. 2d at 250-51.
22 A. 1:33 (Büchel's Counterclaims ¶ 6 ("Countercl.")); A. 1:428 (Thompson Tr.134:20-136:1); A. 1:430 (Thompson Dep. Tr. 143:4-13); A. 2:529 (Büchel Dep.Tr. 36:2-13, 37:4-10).
23 A. 1:33-34, 35 (Countercl. ¶¶ 9, 15); A. 2:689-92.
24 A. 2:531 (Büchel Tr. 45:2-19); A. 2:620-21 (BUC00002560).
Also, on September 14, 2006, Nato Thompson,25 who was at that time
a MASS MoCA curator and the curator for the Planned Installation, sent an e-mail
to Michelle Maccarone, Büchel's gallerist and representative in the United States,
attaching a document entitled "Buchel Contract.doc." 26 That document was a
letter from Thompson to Maccarone and Büchel that stated its purpose was to
"formalize our relationship on this project."27 The next day, Thompson sent
Büchel a letter in which he wrote, "[o]n the subject of budget, we think we've got a
$160,000 project on our hands in direct costs."28 On September 24, 2006, Büchel
acknowledged receipt of Thompson's September 15 letter by a return e-mail, which
acknowledged the budgetary constraints for the project.29
25 References to "Thompson" or "Joseph Thompson" herein refer to Joseph C.Thompson, Director of MASS MoCA, and references to "Nato Thompson" referto former MASS MoCA curator Nato Thompson. They are not related.
26 A. 2:606-09; see also A. 2:528 (Büchel Tr. 32:16-19 (Maccarone's role)).
27 Id.
28 A. 2:611-14 (MASS MoCA 13594); see also A. 2:618.
29 A. 2:623-24 (BUC00000728); see also A. 2:530 (Büchel Tr. 40:11-41:5), A.2:577.
5. Büchel Belatedly Returns To North AdamsTo Work On The Planned Installation AndProvides Corrective Instructions When He ChangesHis Mind Or Is Not Satisfied With The Work Performed
On September 26, 2006, Büchel informed MASS MoCA that he
would return to MASS MoCA to work on the Planned Installation on October 12,
2006.30 On October 5, 2006, Büchel sent Nato Thompson an e-mail advising that
he would not arrive at MASS MoCA until October 25, 2006.31 As of October 28,
2006, Büchel had not yet arrived at MASS MoCA.
On October 29, 2006, Büchel returned to MASS MoCA to continue
work on the Planned Installation.32 He was assisted by MASS MoCA personnel,
sub-contractors and consultants during that time.33 In some instances, Büchel was
not satisfied with the work that had been performed by MASS MoCA personnel
and contractors in his absence, either because he was unhappy with the work
performed, or because he had changed his mind.34 In such instances, Büchel
provided corrective instructions.35 MASS MoCA and Büchel continued to work
together on the Planned Installation into early December 2006. As the District
Court observed:
As 2006 drew on, what began to emerge as "Training Ground forDemocracy" was, of necessity, the product of a highly collaborativeprocess with a good deal of back-and-forth and shared decision-making.
MASS MoCA, 565 F. Supp. 2d at 251.
6. In December 2006, Büchel Goes On Strike And DemandsThat MASS MoCA Delay The Opening Of The PlannedInstallation And Accept Sole Responsibility For The Delay
On December 5, 2006, Büchel demanded that MASS MoCA
announce the postponement of the opening of the Planned Installation or he "will
not work a single minute longer."36 Büchel further demanded that MASS MoCA
issue a press release in which MASS MoCA accept sole responsibility for the
postponement of the opening.37 Thompson urged Büchel to continue working
while they discussed Büchel's demands.38
36 A. 2:533 (Büchel Tr. 50:3-24); A. 2:652-53, 655-57.
37 A. 2:532 (Büchel Tr. 48:16-49:20); A. 2:652-53, 655-75. Büchel incorrectlyasserts in his Brief that MASS MoCA admitted the delay was its own fault.Brief of Defendant-Appellant Christoph Büchel at 15, Massachusetts Museumof Contemporary Art Foundation, Inc., v. Christoph Büchel, No. 08-2199 (1stCir. Feb. 27, 2009) (hereinafter "Büchel's Brief ").
The next day, MASS MoCA proposed an announcement to Büchel
postponing the Planned Installation, which did not ascribe blame to any party.39
Büchel rejected that proposal, and stated that he "won't continue to work" unless
MASS MoCA took sole responsibility for the delay.40 Later that day, MASS
MoCA issued the following statement on its website:
Due to logistical complexities encountered by the museum inpreparing galleries for Christoph Büchel's vast installation, theexhibition's official opening date -- tentatively set for December16th -- will be re-scheduled. The official opening date will be postedhere as soon as the date is finalized.41
On December 7, 2006, Thompson informed Büchel of all of the museum's efforts
to alert the press and others that the Planned Installation had been postponed.42
Büchel then returned to work on the Planned Installation.
7. Büchel Meets With Visitors To The PlannedInstallation During His Stay In North Adams
As part of MASS MoCA's educational mission to show the public the
process of making collaborative art, MASS MoCA frequently permits visitors to
tour its galleries while materials are being assembled in connection with exhibits-
in-progress.43 Indeed, MASS MoCA rarely closes its galleries during the
fabrication and installation of art, unless public safety or other logistics demand it.
In furtherance of its mission, MASS MoCA occasionally brought visitors through
Building 5 to view work being done in connection with the Planned Installation.44
However, because of the heavy constructions and potentially dangerous objects
being assembled in Building 5 during the fall of 2006 and into 2007, MASS MoCA
was unable to tour the general public through that gallery space. Instead, the tours
were limited to personal tours in the presence of accompanying museum
personnel.45
Büchel often greeted visitors who were given such personal tours of
the Planned Installation.46 For example, on December 17, 2006, Thompson
received a thank you e-mail from a museum visitor with respect to one such tour:
Thank you again for taking the time to show my mom and I theBuchel installation. Seeing the construction and learning about theevolution of this project was such a memorable experience. I am alsoso thrilled to have met Buchel himself!47
43 A. 1:471-72 (Thompson Tr. 309:4-310:10).
44 A. 2:495 (Thompson Tr. 393:24-394:19).
45 A. 1:471-72 (Thompson Tr. 309:20-310:10); A. 2:495 (Thompson Tr. 394:9-19).
46 A. 2:495 (Thompson Tr. 394:21-395:4).
47 A. 2:683; see also A. 2:495 (Thompson Tr. 394:9-395:4 ("Christoph himselfhosted many visits to the gallery while it was in construction.... [H]e was quitecharming to the people that we'd bring to the gallery.").
drywall screws, the application of a faux concrete finish of the theater floors, the
re-design and re-making of certain rails and stairs (the first attempts at which
Büchel was not satisfied with), and the careful protection of layers of grime and
wear patina on certain doors, linoleum floors and other objects -- were provided by
Büchel and his assistants prior to December 15, 2006.51 Many of these instructions
took the form of quick sketches or notes, but many were oral, delivered by Büchel
directly and extemporaneously to the museum workers and tradespeople
undertaking the many tasks.52
On December 17, 2006, Büchel departed from MASS MoCA.53
Before his departure, the parties anticipated that Büchel would return to MASS
MoCA to continue working on the Planned Installation after the New Year's
holiday.54
9. Büchel Declines The Opportunity To BePresent For The Installation Of A Major ComponentOf The Planned Installation -- An Entire House -- AndInstead Entrusts The Task To MASS MoCA Personnel
One of the largest tasks MASS MoCA faced at the time of Büchel's
departure was the installation of a house that MASS MoCA had procured for the
house elements were literally suspended in air, both inside and outside the gallery.
Dante Birch, MASS MoCA's Production Manager of Visual Art, made an on-the-
spot decision to maintain the centerline of the house and cinder block in
accordance with the centerline reference marks that Büchel had marked on plans
and on the floor of Building 5.60
Later that day, Birch informed Büchel by e-mail of the measurement
error and how it was addressed:
The house was four feet wider (north to south) than the tape on thefloor. In order to maintain [] your street and the room behind it wasjudged best to go off your center line to maintain the integrity of yourhouse divided down the center of the gallery while least impacting theother sides.61
Büchel subsequently misread or misconstrued this e-mail by suggesting that
Birch's expression "to go off your center line" meant "to deviate from your center
line," rather than "to maintain and use your center line."62 In fact, the house (and
the adjacent cinder block wall subsequently constructed by MASS MoCA) was
precisely centered on the centerline that Büchel had marked.63
10. Büchel Understands And Expects That MASS MoCAWill Work On The Planned Installation In His Absence
Following Büchel's departure from MASS MoCA in December 2006,
MASS MoCA and Büchel continued to communicate about ongoing work on the
Planned Installation.64 In accordance with Büchel's directions, MASS MoCA
personnel continued work on the Planned Installation, believing that Büchel would
return to MASS MoCA to complete it.65
By January 8, 2007, the following constructions had been built for the
Planned Installation:
a full-scale raked floor cinema; an exquisitely rendered SaddamHussein compound with spider hole; nine sea containers, stacked andinterwoven with multi-level stairs, ladders and other complexstructural elements; a 35' fuel tanker cleaned, de-contaminated andcraned into the building; a 12' x 60' mobile home rigged into a new 24'x 12' door cut into the gallery building [expressly] for that purpose; anentire two-story house dismantled and rebuilt within the gallery; and40 tons of cinder block and mortar walls.66
In January 2007, MASS MoCA also continued its efforts to raise additional money
to complete the Planned Installation.67
64 A. 2:535 (Büchel Tr. 61:5-18); A. 2:696-97, 699-701, 709, 722-23, 735-50.
65 A. 1:457 (Thompson Tr. 251:6-253:13); A. 2:687, 694, 696-97, 754-55, 774-77,779-81, 815.
On January 24, 2007, Thompson e-mailed Büchel's galleries, copying
Büchel, and attached to the e-mail a letter to Büchel, a "Completion Plan," and a
"Completion Budget."73 In the e-mail, Thompson wrote,
Christoph: I haven't attempted to get in touch, per your request, butthat's not because we haven't been thinking of you! Let's please talkafter you've considered this material.... As I think you'll see by thephotos, there's a lot of power in the galleries, and we've made greatstrides.74
On numerous occasions in January 2007, Büchel refused to accept any
further communication from MASS MoCA until the museum unconditionally
acceded to the unilateral terms on which he claimed he would complete the
Planned Installation.75 Büchel refused to receive e-mails, and he rejected entreaties
from Thompson to meet in Europe or in Iceland (where Büchel sometimes resides),
to discuss possible resolution of the impasse.76
In early February, Büchel responded to Thompson stating, "[I] will
not negotiate further this matter, as previously mentioned, because almost any of
the main conditions are simply not fulfilled."77 A few days later, Thompson wrote
envisioned were due either to (i) the simple fact that he did not return to complete
the Planned Installation, and so it did not appear in final form, or (ii) his apparent
change of mind as to how particular elements of the Planned Installation should
have ultimately appeared.87
Even as late as May 2007, MASS MoCA was still hopeful that Büchel
would return to MASS MoCA to complete the Planned Installation.88
12. In Büchel's Absence, MASS MoCA PersonnelContinue Working Pursuant To His Pre-DepartureInstructions In Anticipation Of His Hoped-For Return
As the District Court observed, while these negotiations were in
progress, MASS MoCA continued performing work on the Planned Installation in
anticipation of Büchel's hoped-for return:
87 A. 4:1397 (2d Thompson Decl. ¶ 43). For example, Büchel complained thatwithout his approval or instruction, MASS MoCA had blocked the windows inthe "Saddam compound" area with cinderblock. A. 2:928 (Büchel Aff. ¶ 68). Infact, those windows had been blocked for at least 20 years. A. 4:1402 (2dThompson Decl. ¶ 53).
In a sworn declaration submitted to the District Court, Thompson addressedeach allegation made by Büchel of purported distortion or "sabotage" on the partof MASS MoCA personnel. See A. 4:1382-1416 (2d Thompson Decl. ¶¶ 44-53(cinder block walls); ¶¶ 54-58 ("bomb carousel"); ¶¶ 59-65 ("Saddamcompound"); ¶¶ 66-75 (cinema); ¶¶ 76-77 (house); ¶¶ 78-79 (police car and"French barriers"); ¶¶ 80-81 (purported "unauthorized detailing"); ¶¶ 82-85(mobile home); ¶¶ 86-87(bar)).
Throughout this dialogue and up until May 2007, MASS MoCAcontinued work on the installation based on the instructions that theyhad from Büchel's e-mails and verbal directions during his visits, thelast of which were received in January 2007.
MASS MoCA, 565 F. Supp. 2d at 251.
In deposition testimony elicited below by Büchel's own counsel, MASS
MoCA Director Joseph Thompson explained that as MASS MoCA gradually worked
through Büchel's pre-departure instructions, its personnel performed less work on the
Planned Installation:
Sometime in January … [w]e were running out of direction. We hadour punch list. We knew certain things had to be done.…
[T]here was a whole long list of things for which we had adequatedirection and understanding that we could continue forward to acertain point. When the work began to get very detailed and wouldrequire input from Christoph, if we could get the input from him, wecould continue, and if we didn't, we would stop.89
Büchel's counsel elicited further testimony in which Thompson
explained that by late February or early March, MASS MoCA's work was limited to
very small tasks:
And we were searching through the punch list for other things … thatwe could do without Christoph's presence there, things … [w]here wefelt that we had sufficient knowledge to pursue.… We were gettingdown to the end of what we considered to be work that we could do.[The addition of the mobile home stairs] was one of the later jobs thatwe did so that could've been even … as late as late February or …[e]arly March. It was towards the end of our real work on them.
89 A. 1:451-52 (Thompson Tr. 229:15-230:17 (emphasis added)).
Q. … You stated that you were searching for other things to do at theend of the punch list. Can you give me some other examples of whatthose things were?
A. … They became smaller and smaller things … Things like justgetting in place all the objects that Christoph or his assistants hadmarked as destined for a final destination. We began gathering thoseup and moving them -- [p]lacing them there in boxes, either inside oroutside the units. I mean, literally putting in light bulbs and justthings … that we could do that were on our punch list of items.90
Büchel's counsel elicited further testimony from Thompson in which
he noted that work had "substantially stopped" on the show well before it was
ultimately cancelled in May 2007, because MASS MoCA "ran out of things to do"
with respect to the instructions that Büchel had left:
[We] cancelled the show finally on … May 20th, and so no work hastaken place on it after May 20th. There might have been bits andpieces that were taking place up to that …. But as I said, work wassubstantially stopped because we ran out of things to do sometime inApril, I think.91
In his Brief, Büchel misreads the February 14, 2007 e-mail
correspondence among MASS MoCA personnel on which he heavily relies, and
which he selectively quotes.92 In particular, the express language of Thompson's e-
mail of 2:15 p.m. on that date shows that the "Plan B" he discusses was not a plan
for unlimited future work on the Planned Installation to be performed at MASS
90 A. 1:457 (Thompson Tr. 251:24-253:8 (emphasis added)).
91 A. 1:462 (Thompson Tr. 271:5-13).
92 See Büchel's Brief, at 22-23, discussing A. 2:774-76.
Significantly, Büchel never requested that MASS MoCA and its
personnel stop work on the Planned Installation.98
13. MASS MoCA Cancels ThePlanned Installation And AnnouncesThe Opening Of A New Exhibit, "Made At MASS MoCA"
On May 21, 2007, MASS MoCA announced the cancellation of the
Planned Installation and also announced the opening of a new exhibit entitled
"Made At MASS MoCA."99 Due to the space constraints imposed by the materials
assembled for the Planned Installation, the exhibition "Made At MASS MoCA"
was presented in the museum's only remaining available gallery space, a small
gallery adjacent to Building 5.100 In connection with the new exhibit, MASS
MoCA temporarily cloaked, to the extent possible, the materials collected and
partially assembled for the Planned Installation with tarpaulins and other physical
and view-restricting measures, because the only access to the "Made At MASS
MoCA" gallery was through Building 5, and visitors had to pass by those cloaked
98 A. 2:558 (Büchel Tr. 152:13-17); A. 2:696 (requesting that MASS MoCA sendhim progress pictures of work being done in his absence).
99 A. 2:834-36. "Made At MASS MoCA" surveyed MASS MoCA's work with awide range of visual and performing artists over more than a decade. Id.
100Id. There is no evidence in the record to substantiate Büchel's inflammatoryclaim that "'Made At MASS MoCA' was a massive publicity stunt designed toembarrass Büchel." Büchel's Brief, at 30.
materials to reach "Made At MASS MoCA."101 MASS MoCA also placed signage
throughout Building 5 directing visitors to "Made At MASS MoCA" by a pathway
that least exposed them to the covered and otherwise obscured materials.102
MASS MoCA did not invite the public to view the materials collected
in Building 5 for the Planned Installation following its cancellation, did not post
signs associating Büchel with the unfinished work, and took measures to
reasonably ensure that the public could not view the partially assembled materials,
including increasing its guard force during the busy summer months.103
14. The District Court Finds For MASS MoCA;MASS MoCA Chooses To Remove The Planned Installation
To determine the rights of all involved, on May 21, 2007, MASS
MoCA filed a one-count complaint in the District Court seeking a declaratory
judgment that it was "entitled to present to the public the materials and partial
constructions assembled in connection with the exhibit planned with the Swiss
artist Büchel."104 Büchel then counterclaimed, asserting five counts.105 Büchel
101 A. 2:835, 853, 862-67.
102 A. 2:853. For example, visitors entered through a side door of Building 5 toavoid passing through the projection booth, cinema, and "Saddam Hussein"elements of the Planned Installation. The regular visitor entrance to thatbuilding was locked. Id.
I. VARA CONFERS TWO DEFINED"MORAL RIGHTS" ON VISUAL ARTISTS
VARA provides visual artists with certain rights with respect to their
works. Passed in 1990 after significant debate regarding its scope and effect,
VARA recognizes a specified class of "moral rights" of artists in the works that
they create.107 The moral rights recognized under VARA are different from and
independent of the economic rights recognized in the Copyright Act.108
VARA recognizes two moral rights potentially relevant to this case:
the right of integrity and the right of attribution.109 17 U.S.C. § 106A(a).
The right of integrity allows the creator of a work of visual art:
to prevent any intentional distortion, mutilation, or other modificationof that work which would be prejudicial to his or her honor orreputation, and any intentional distortion, mutilation, or modificationof that work is a violation of that right.
Id. § 106A(a)(3)(A).
107 See, e.g., H.R. Rep. No. 101-514, at 7 (1990), reprinted in 1990 U.S.C.C.A.N.6915, 6917-19; Visual Artists Rights Act of 1989: Hearing on H.R. 2690 Beforethe Subcomm. on Courts, Intellectual Property, and the Admin. of Justice of theH. Comm. on the Judiciary, 101st Cong. 26 (1989) (statement of CongressmanCoble) (hereinafter "Hearing on H.R. 2690").
108 H.R. Rep. No. 101-514, at 14, reprinted in 1990 U.S.C.C.A.N. at 6924.
109VARA also recognizes the right to prevent the destruction of a work ofrecognized stature, which is not at issue here. 17 U.S.C. § 106A(a)(3)(b).
statute. Further, to preserve the carefully defined scope of VARA, an artist should
likewise bear the burden of establishing a clear violation of VARA. Accordingly,
the District Court cautioned, "courts should be wary of attempts to invoke VARA
where a violation of the explicitly recognized rights of attribution or integrity is
difficult to discern." MASS MoCA, 565 F. Supp. 2d at 258.
II. MASS MOCA DID NOT VIOLATE BÜCHEL'SRIGHTS OF INTEGRITY OR ATTRIBUTION UNDER VARA
A. The District Court Expressly Assumed ThatVARA Applied To The Planned Installation
In this case, the District Court expressly assumed that VARA applied
to the unfinished Planned Installation, and on that basis held that MASS MoCA
had not violated any right granted by VARA:
Assuming the statute does apply, display of this unfinished installationwould have violated neither Büchel's right of attribution nor his rightof integrity.
MASS MoCA, 565 F. Supp. 2d at 259. Accordingly, this Court may affirm that
grant of summary judgment without determining whether collaborative artworks
and unfinished works of visual art are subject to more circumscribed protection
under VARA.
VARA, by its terms, extends the moral rights it recognizes only to
"works of visual art." VARA places the burden on the artist to show that the work
in question is a "work of visual art" as defined and not excluded by the statute. See
H.R. Rep. No. 101-514, at 13, reprinted in 1990 U.S.C.C.A.N. at 6923. VARA
defines a work of visual art as "a painting, drawing, print, or sculpture, existing in a
single copy." 17 U.S.C. § 101. In enacting VARA, Congress carefully defined the
term "work of visual art:"
The definition of a work of visual art is a critical underpinning of thelimited scope of the bill. As Representative Markey testified, 'I wouldlike to stress that we have gone to extreme lengths to very narrowlydefine the works of art that will be covered.'
H.R. Rep. No. 101-514, at 10-11 (1990), reprinted in 1990 U.S.C.C.A.N. at 6920-
21. And "[t]he definition is not synonymous with any other definition in the
Copyright Act."110 H.R. Rep. No. 101-514, at 11 (1990), reprinted in 1990
U.S.C.C.A.N. at 6921. Excluded from the definition of a "work of visual art" is
any motion picture or other audiovisual work. 17 U.S.C. § 101. The legislative
history indicates that Congress specifically excluded these artworks due to their
collaborative nature. As Representative Coble stated:
[This legislation] is narrowly drawn -- as it should be -- directingattention to art that has been produced generally by individual artistsas opposed to legions of people as would be the case in the motionpicture industry.
110 Büchel attempts to import other definitions in the Copyright Act into VARA.Büchel's Brief, at 40-41 (discussing definitions of "created" and "fixed").Nonetheless, the term "work of visual art" is "not synonymous with any otherdefinition in the Copyright Act." H.R. Rep. No. 101-514, at 11 (1990),reprinted in 1990 U.S.C.C.A.N. at 6921.
Hearing on H.R. 2690 at 26; see also H.R. Rep. No. 101-514 at 9, reprinted in 1990
U.S.C.C.A.N. at 6919 (contrasting individual artists with those artists who
participate in collaborative works of art). Accordingly, the District Court remarked:
The statute's legislative history suggests that the decision not toinclude film within VARA's protections stemmed in part from the factthat the creation of this form of art tends to be 'a collaborative effort,'with the possibility of evolving formats in different markets.
MASS MoCA, 565 F. Supp. 2d at 256. Similar to the collaborative process of
filmmaking, major installations like those planned by Büchel require the effort of
numerous individuals simply to assemble all of the component parts and then to
create the actual artwork.111
The District Court also observed:
Beyond the repeated insistence by Congress on the narrow scope ofVARA, there is good reason to suspect that unfinished works of artmay have only limited protection.
MASS MoCA, 565 F. Supp. 2d at 257 (emphasis in original).112 Nowhere in
VARA are unfinished works mentioned. See 17 U.S.C. § 106A. As one court put
111 See, e.g., A. 1:33-34, 35 (Countercl. ¶¶ 9, 15); A. 2:572-75.
112 Büchel argues that the District Court's Order is self-contradictory because itheld that unfinished works of visual art lack VARA protections, but alsohypothesized violations of VARA for unfinished works of visual art. Büchel'sBrief, at 39. Not so: while the District Court discussed whether unfinishedworks may enjoy circumscribed protection under VARA, it expressly assumedVARA's application in its analysis. See, e.g., MASS MoCA, 565 F. Supp. 2d at259-60.
it, "VARA most decidedly does not cover works that do not yet exist." Flack v.
Friends of Queen Catherine, Inc., 139 F. Supp. 2d 526, 535 (S.D.N.Y. 2001). In
Flack, a sculptor sued under VARA after the group that commissioned her to
create a bronze statute allegedly destroyed a clay model that was intended to be
used to create the bronze statute. While the Southern District of New York
extended VARA to apply to the clay model, it also found that VARA did not apply
to the incomplete, partially cast bronze statute. Id. In addition, to find VARA
applicable to these unique circumstances would allow an artist to begin work on an
exhibit in a museum, abandon it and hold the museum's land hostage for fear of
removing or altering it in any way, lest the museum violate VARA. See, e.g.,
Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128, 131 (1st Cir. 2006).
However, in granting summary judgment for MASS MoCA in this
case, the District Court expressly assumed that VARA did apply to the Planned
Installation. MASS MoCA, 565 F. Supp. 2d at 259.
B. There Was No Violation Of Büchel's Right Of Integrity
VARA provides that an author of a work of visual art shall have the
right:
to prevent any intentional distortion, mutilation, or other modificationof that work which would be prejudicial to his or her honor orreputation, and any intentional distortion, mutilation, or modificationof that work is a violation of that right.
17 U.S.C. § 106A(a)(3). Thus, in order to state a violation of the right of integrity,
the author of the work must show both that there was an "intentional distortion,
mutilation, or other modification" of the work and that the distortion was
prejudicial to the artist's reputation. See id.
Büchel alleges that (i) the work performed by museum personnel,
(ii) the "display" of the covered Planned Installation, and (iii) allegedly showing
the Planned Installation in an unfinished state to particular museum guests on a few
occasions violated his purported right of integrity. All of these accusations are
unfounded. Büchel failed to show that any of these acts constituted a distortion,
mutilation or modification for purposes of VARA, and also failed to show that any
hypothetical distortion, mutilation or modification harmed his reputation.
1. Work Performed On The PlannedInstallation By MASS MoCA PersonnelWas Not A Distortion, Mutilation Or ModificationAnd Was Not Prejudicial To Büchel's Honor Or Reputation
Work by MASS MoCA personnel to carry out Büchel's instructions
for the planned installation does not constitute a violation of any right of integrity.
As the District Court correctly held:
Certainly the efforts made by museum staff to implement Büchel'slong-distance instructions, even if occasionally misguided, cannotform a basis for VARA liability. Fumbled efforts to assist in creating,or failing to create, a work of art are not equivalent to distortion,modification, or mutilation of the art.
When he was present in North Adams, Büchel supervised MASS
MoCA personnel in the fabrication process. Throughout this complex and lengthy
process, there were times when Büchel was not satisfied with the work performed
by MASS MoCA personnel. At times Büchel felt that the work was not done in
the manner that he required, and at other times he changed his mind about what
should be done. When Büchel was not satisfied with the result of work by MASS
MoCA personnel, typically, he would instruct the personnel as to what should be
corrected. 113 Before Büchel left North Adams on December 17, 2006, he
participated in several conversations with MASS MoCA personnel where they
discussed what museum personnel would do in the coming weeks and months to
ensure the exhibit progressed to completion.114 After Büchel left North Adams in
mid-December 2006, he continued to provide MASS MoCA with instructions and
corrections for the planned installation.115 As the installation of the house shows,
Büchel understood and expected that MASS MoCA would continue to work on the
113 A. 2:623-27, 675-77, 696-97.
114 A. 4:1391-92 (2d Thompson Decl. ¶ 26).
115 A. 2:535 (Büchel Tr. 61:5-18); A. 2:696-97, 699-701, 709, 722-23, 735-50.Büchel argues that MASS MoCA was "effectively freelancing" by working onthe Planned Installation in early 2007. Büchel's Brief, at 45. In support of thisassertion, Büchel cites to a February 14, 2007 e-mail, but he misreads andselectively quotes that e-mail. (See pp. 26-27, supra.)
117 A. 2:558 (Büchel Tr. 152:13-17); A. 2:696 (requesting progress pictures ofwork performed in his absence).
118 Büchel's Brief flatly asserts that "MASS MoCA continued to work on theinstallation, without Büchel's authorization or direction, for months after he leftNorth Adams...." Büchel's Brief, at 44. The record before the Court belies thisassertion. (See pp. 19, 24-28 supra.)
and installations in particular may require the use of third persons to implement the
artist's designs:
Now, I think it is quite clear under the copyright law that authorship,even with respect to sculptors, need not be in the form of themanipulation of the material. Earlier during the closing statements ofcounsel, we had some discussion of the concept of a sculptor whomight sit in a chair, never moving and never touching the materials,perhaps in part because he might be paralyzed or simply because thematerials might be large and heavy. There are sculptors nowadayswho work in huge materials, I-beams, storage tanks, things like that,that are welded together where the sculptor's contribution is renderedentirely by the giving of instructions to workmen to put a member in acertain position and bolt it to another member and so forth. I think itis clear without question that such participation is authorship. Suchcarrying out of ideas of authorship is recognized as authorship underthe copyright law even if the author never places his hand on thematerial.
Büchel, however, advances an untenable interpretation of VARA's
right of integrity. Büchel appears to contend that VARA precludes artists from
working with third persons in this fashion. In particular, he appears to contend that
no one other than the artist himself (or herself) may ever perform any work in
fabricating visual art unless that specific task has been authorized by the artist in a
119See also Geoff Edgers, Art without the artist, Bos. Globe, Jan. 6, 2008, at D1("In one way or another, contemporary artists have been handing off the actualmaking-of part for years. ... Some artists have built entire careers on thisconcept."); Alix Browne, Big Bambú, N.Y. Times Mag., Mar. 29, 2009, at 47(describing bamboo sculpture "assembled under the artists' direction by a teamof about a dozen rock climbers over a period of 10 weeks").
signed, written document satisfying the requirements set forth in subsection (e)(1) of
VARA, 17 U.S.C. § 106A(e)(1).120 Under that novel theory, in the absence of
documentation meeting that exacting VARA standard, an artist's assistant or other
worker who performs work in fabricating visual art -- even at the artist's express
direction -- would be committing an "intentional … modification" of that work in
violation of VARA, id. § 106A(a)(3)(A), and would be liable to the artist for
significant statutory damages. See id. § 504(c).
MASS MoCA is not aware of any court or recognized authority that
holds, per Büchel's theory, that VARA was intended to regulate artists' relations
with assistants and other persons who assist artists in carrying out their designs.
And for good reason: application of that theory would impose an enormous and
impractical logistical burden that would make the creation of intricate, large-scale
installations of the type contemplated here impossible to execute. As the District
Court stated:
[The Planned Installation's] huge size and extraordinary level of detailnecessarily made it difficult to perceive as the product entirely of oneperson's imagination and execution.
120That documentation problem could not be addressed by having the artist sign ablanket waiver: blanket waivers are not enforceable under VARA. See 17 U.S.C.§ 106A(e)(1) ("the waiver shall apply only to the work and uses so identified"(emphasis added)).
MASS MoCA, 565 F. Supp. 2d at 255. Adoption of Büchel's theory here would
discourage future installations of this type, because it would subject institutions
that might undertake such projects to an ever-present prospect of VARA liability if
they took any step to construct an installation according to an artist's instructions
without first generating detailed waiver documentation. That interpretation is
utterly unworkable, especially for projects that unfold organically, during the trial
and error process that often characterizes experimental artworks. Congress did not
intend VARA to regulate the working relationships between artists, their assistants
and museums. This Court has previously taken such practical considerations into
account when interpreting VARA.121
Nor, for that matter, was Büchel actually under the impression that
that overlay of legal documentation was required. For example, notwithstanding
121 In Phillips v. Pembroke Real Estate, Inc., the First Circuit balanced the rights ofa landowner against the rights of an artist under VARA. 459 F.3d 128, 142 (1stCir. 2006). In that case, Phillips was a sculptor who created "site-specific" artin a park in South Boston. When the owner of the park later wanted to changethe design of the park, Phillips sued under VARA to prevent the owner fromremoving his sculptures. Id. at 131. In holding that VARA does not apply tosite-specific art, the First Circuit noted that to hold otherwise "coulddramatically affect real property interests and laws" because "[o]nce a piece artis considered site-specific, and protected by VARA, such objects could not bealtered by the property owner absent consent of the artist." Id. at 142.Accordingly, when confronted with application of VARA to an artwork, theFirst Circuit interpreted VARA in light of relevant practical and legalconsiderations.
MASS MoCA's offer to stay and oversee the installation of the house, Büchel left
North Adams in December 2006 and entrusted the installation of the house in
Building 5 to MASS MoCA.122
In any event, Büchel has failed to show that any work performed by
MASS MoCA personnel in his absence was injurious to his honor or reputation.
See 17 U.S.C. § 106A(a)(2), (3). By its terms, that is an objective test, requiring a
showing that the purported distortion would actually cause prejudice to an artist's
"honor or reputation." Büchel offered no evidence to the District Court showing
that any work performed by MASS MoCA personnel injured his reputation.
Büchel's personal dissatisfaction with the work performed is not sufficient to meet
the objective standard that the purported distortion would actually cause prejudice
to an artist's "honor or reputation." Büchel's cherry-picked quotations from art
critics who disagreed with the museum's course of action, and speculated that
Büchel's reputation could be harmed, also do not show actual harm to Büchel's
reputation.123
122 See A. 4:1392 (2d Thompson Decl. ¶ 28).
123 MASS MoCA will not burden the Court with examples of coverage in the artmedia that sympathized with the museum's dilemma and approved of itshandling of this matter. Nor will it burden the Court with the thousands ofpositive reviews it has received in respect of the hundreds of other visual andperforming artists who have made or exhibited new art at MASS MoCA, andwho actually completed their work as promised.
2. Covering The Planned Installation WithTarpaulins And Other View Restricting MeasuresWas Not A Distortion, Mutilation Or ModificationAnd Was Not Prejudicial To Büchel's Honor Or Reputation
After Büchel refused to return to North Adams to complete the
installation, MASS MoCA was left in an unenviable position: its premier art space,
Building 5, was effectively held hostage by an absent artist during the most
profitable time of year. Although it is now clear that MASS MoCA could have
opened the Planned Installation to the public, the museum chose a cautious -- and
expensive -- route, covering it with tarpaulins and other reasonable view restricting
measures while seeking a determination of the rights of all parties.
Covering the Planned Installation so that the public could not see the
Planned Installation was not a distortion, mutilation or modification. Surely, every
occasion when a museum or a private owner covers a sculpture, or blocks views
into a gallery -- e.g., during building renovations or gallery installations -- cannot
give rise to a VARA violation. Indeed, the actual covering of the Planned
Installation does not appear to be Büchel's concern. Instead, he complains that
parts of the Planned Installation remained visible, that people "peeked" behind the
tarpaulins, and that his reputation was harmed by views of the covered-version of
the Planned Installation.
The record does not support Büchel's complaints. Based on a personal
observation of the Planned Installation, Judge Ponsor stated:
[T]he limited visual access afforded anyone walking past while theassemblage was under wraps provided no significant access to, or anyreliable sense of, the partially completed installation. Any observer ofthe tarpaulins would receive a vague impression of variously sizedlumps, with random bits occasionally protruding out or only partiallycovered, and a general sense of the overall size of the project -- nomore. No reasonable person would feel that he or she had seen theunfinished work itself, or any model or derivative work based upon it.Moreover, no reasonable person, looking at these bulges andprotrusions, could fairly claim that he or she had viewed an artisticcreation by Christoph Büchel.
MASS MoCA, 565 F. Supp. 2d at 255 (emphasis in original). Büchel's attempt to
marshal evidence to contradict the District Court's observation, based on a personal
site visit by the District Court made at the agreement of both parties, falls woefully
short. The photographs that Büchel points to in the record buttress the District
Court's conclusion that the tarpaulins substantially covered the Planned Installation
and no reasonable visitor could have viewed more than the tarpaulins, the top of a
house, a shipping container or two and the top of a carousel.124 Further, there is
simply no admissible evidence in the record that anyone actually "peeked" behind
the tarpaulins.125
In any event, Büchel has failed to show how any "display" of the
materials obscured by the tarpaulins was "prejudicial to his . . . honor or
reputation" under VARA. See 17 U.S.C. § 106A(a)(2), (3). An artist's self-serving
124 A. 3:1095-98 (cited in Büchel's Brief, at 46).
claim that he is unhappy with a purported "distortion" of a work does not satisfy
that element of the statute.
Here, as Büchel admits, it was widely known that Büchel did not
complete the Planned Installation, and that the covered materials did not constitute
his finished work.126 Accordingly, to show that any purported distortion by MASS
MoCA was "prejudicial to his honor or reputation," Büchel would have had to
present evidence that the artistic community actually considered the "distortion,"
i.e., the covering of the Planned Installation with tarpaulins, or its unfinished
condition, to be the result of an artistic misjudgment on Büchel's part, rather than a
result of his dispute with the museum. This Büchel did not do.127 Indeed, Büchel's
own considerable efforts to draw attention to the controversy, which included
offering for sale court filings and correspondence related to this dispute as artwork,
confirm that he himself did not genuinely believe that any purported distortion was
injurious to his artistic career or in any way "prejudicial to his honor or
reputation."128
126 A. 2:838-851, 855-60, 862-67.
127 Indeed, the art critics cited by Büchel -- see Büchel's Brief, at 47 -- expresslyrecognize that the unfinished nature of the installation is attributable to thedispute, and not to Büchel's design.
128 See A. 2:567-68 (Büchel Tr. 187:24-190:21). At the conclusion of hisdeposition, Büchel indicated that he might even seek to sell the videotape of thedeposition as art. See A. 2:568 (Büchel Tr. 192:22-193:12).
3. Any Display Of The Unfinished Planned InstallationWas Not A Distortion, Mutilation Or ModificationAnd Was Not Prejudicial To Büchel's Honor Or Reputation
VARA does not grant an artist the right to complete unfinished works
or the right to prevent the display of an unfinished work. In particular, the
Copyright Act only protects works that are "fixed" in a "tangible medium of
expression." 17 U.S.C. § 102(a). The Act does not protect hypothetical work that
has not yet been (and may never be) created, and thus it cannot be read to protect a
hypothetical future work from "distortion" by being shown in an incomplete state.
Accordingly, the District Court properly held:
[N]othing in MASS MoCA's planned display of the unfinishedinstallation would have violated Büchel's right of integrity, for thesimple reason that no completed work of art ever existed on thesefacts for the museum to distort, mutilate or modify. To suggest thatthe display of an unfinished and abandoned work somehowconstitutes a distortion, mutilation or modification of that non-existentwork is simply inconsistent with the ordinary usage of those terms.
MASS MoCA, 565 F. Supp. 2d at 260.
Büchel, however, argues that MASS MoCA "distorted Büchel's work
merely by showing it in its unfinished state."129 It is true that some countries grant
artists moral rights above and beyond attribution and integrity. France, for
example, grants an artist the additional moral right to prevent the display of an
unfinished work. See Rigamonti, Deconstructing Moral Rights, 47 Harv. Int'l L.J.
at 359. VARA, however, is circumscribed in scope, and nowhere in VARA is the
right disclosure. (See Part I supra.) Congress did not include those rights in
VARA, and Büchel cannot obtain for himself through artful argumentation
additional moral rights that Congress purposefully chose not to include within
VARA's protections.130
Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303, 329 (S.D.N.Y.
1994), rev'd in part on other grounds, 71 F.3d 77 (2nd Cir. 1995), is consistent with
Congressional intent that VARA be interpreted according to its terms. In Carter,
the Southern District of New York rejected a claim that VARA provides a right
against the display of a work that the artist did not complete. Id. If the Court were
to recognize that the "display" of the shrouded, unfinished materials were an
inherent distortion and violated any right of integrity, the Court would be reading
into VARA a right that Congress declined to include.131
130 Büchel claims that "[t]o present an artist's work before this 'painstaking[]'process of 'personal expression' is complete" is a distortion of that work.Büchel's Brief, at 48. Again, however, Congress chose not to include the rightof disclosure within VARA's protections. (See Part I supra.)
131Büchel relies on newspaper articles and websites for his "factual" claims thatmembers of the public viewed the Planned Installation. See, e.g., Büchel's Brief,at 3, 31-32. Not only are these statements obvious hearsay, but an article inwhich a writer claimed that someone else viewed the Planned Installation (e.g.,A. 2:795) is double hearsay, and not competent evidence of anything. Further,there is simply no competent evidence in the record to establish that MASS
In addition, Büchel's assertion that certain museum patrons may have
been permitted to walk past the obscured materials cannot reasonably be viewed as
a "distortion, mutilation or modification" of any unfinished and abandoned work
by Büchel. To find a distortion, mutilation or modification in these set of facts
would stretch VARA beyond its intended bounds and punish MASS MoCA for
acting to protect the rights of all involved. The District Court correctly noted:
[A] legal rule to the effect that when a museum allows an unfinished,covered assembly of materials to be seen, it has violated VARA,would create at least an awkward, and probably unmanageable,burden for both artists and exhibitors.
MASS MoCA, 565 F. Supp. 2d at 261.
In any event, Büchel did not offer any evidence suggesting that
occasional partial views of the unfinished Planned Installation by museum guests
could have been injurious to his artistic career or in any way "prejudicial to his
honor or reputation."
C. There Was No Violation Of Büchel's Right Of Attribution
VARA provides that:
[T]he author of a work of visual art shall have the right to claimauthorship of that work[] and to prevent the use of his or her name asthe author of any work of visual art which he or she did not create[and] . . . to prevent the use of his or her name as the author of the
________________________(cont'd from previous page)
MoCA generally permitted the public to view the Planned Installation un-shrouded.
work of visual art in the event of a distortion, mutilation, or othermodification of the work which would be prejudicial to his or herhonor or reputation.
17 U.S.C. § 106A(a). Below, Judge Ponsor offered conjectural examples of a
violation of the right of attribution: "[A]n artist's attributive rights would prevent
Artist B from claiming Artist A's work as his or her own. The same protection
would prevent Artist B from creating a work, but labeling it as Artist A's." MASS
MoCA, 565 F. Supp. 2d at 256.
In this case, there was no violation of any right of attribution. As the
District Court observed:
This was simply not a case of MASS MoCA planning to presentBüchel's art work as its own, or presenting its own or someone else'sart work as Büchel's.
Id. at 259-60.
Büchel asserts that MASS MoCA violated his right of attribution
because the museum "use[d] [B]üchel'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."132 As discussed supra,
there was no distortion, mutilation or other modification that was prejudicial to his
honor or reputation. But even if there had been, Büchel fails to show that MASS
MoCA ever attributed the materials to him or prevented him from claiming
authorship of the Planned Installation. The museum did not post signs or
otherwise attribute the covered unfinished work to Büchel. Even if MASS MoCA
had shown the Planned Installation, it did not propose to attribute it to Büchel
without Büchel's consent. Instead, as the District Court stated: "Defendant's name
would have been formally associated with the project only to the extent that he
chose, if at all." MASS MoCA, 565 F. Supp. 2d at 259. Accordingly, Büchel has
failed to show that MASS MoCA violated any purported right of attribution.
Nor was any right of attribution violated as a result of the publicity
surrounding the controversy. Büchel argues that the record is replete with
evidence of the extensive publicity relating to his dispute with MASS MoCA that
associated Büchel with the unfinished work. Nonetheless, as Judge Ponsor noted,
there is nothing in VARA to indicate that the publicity that surrounded the dispute
somehow resulted in an actionable violation of any right of attribution:
[I]f the perception of the artist's involvement in a project were enough,by itself and without any explicit attribution by the exhibitor, totrigger VARA protection, the potential reach of the statute would beso unpredictable that it would exceed Congress' proviso that this lawbe applied with restraint.
Id. at 259-60 n.6 (emphasis in original). To the extent that MASS MoCA
commented publicly on the dispute, the museum did so reasonably, in response to
the need to inform its patrons regarding the status of a planned exhibit. Büchel
cannot now claim that the publicity, much of which he generated by statements to
the press and the public display of materials relating to the dispute, conferred upon
him any additional rights or remedies.133
III. MASS MOCA DID NOT VIOLATE ANY OF BÜCHEL'SRIGHTS UNDER THE COPYRIGHT ACT TO DISPLAYTHE UNFINISHED WORK OR TO CREATE DERIVATIVE WORKS
The District Court also correctly held that there was no violation of
any right to display the materials or any right to create derivative works. MASS
MoCA, 565 F. Supp. 2d at 261. Büchel's third, fourth and fifth counterclaims
assert causes of action under the Copyright Act for violations of his alleged right to
display the materials and to create derivative works. Assuming that Büchel is the
sole holder of the copyright in the unfinished work,134 he has nonetheless failed to
establish any violation of his rights.
133 E.g., A. 2:785-92 (Büchel's statement to the Boston Globe setting forth theconditions under which he purportedly would return to MASS MoCA tocomplete the Planned Installation).
134MASS MoCA and Büchel agreed that after the Planned Installation was finished,and after the public exhibition at MASS MoCA had concluded, MASS MoCAwould give up any claim it had to the copyright in the finished work, andBüchel's sole title to any copyright would not be contested. A. 2:607. Büchelrefused to finish the installation, and so that day never came. If the unfinishedPlanned Installation were held to constitute a joint work of Büchel and MASSMoCA, then Büchel and MASS MoCA co-own any copyright, and Büchelwould have no copyright claim against MASS MoCA. See 17 U.S.C. § 201(a)(authors of joint work are "co-owners" of copyrights); accord Seshadri v.Kasraian, 130 F.3d 798, 803 (7th Cir. 1997) (Posner, Ch. J.) ("If a joint work ismarred by errors reflecting unfavorably on his coauthor … the coauthor mightconceivably have some legal remedy, but it wouldn't be under the Copyright
installation would create an unworkable situation for that museum, especially for a
museum such as MASS MoCA that frequently invites artists to fabricate works
within the museum's gallery space, and, when appropriate, in view of the public.
B. MASS MoCA Is The Lawful Owner OfThe Planned Installation And Would Have Been EntitledBy The Copyright Act To Display The Work To The Public
The Copyright Act plainly acknowledges that a person may own a
particular physical copy of a work even if another person holds the copyright to
that work:
Ownership of a copyright, or of any of the exclusive rights under acopyright, is distinct from ownership of any material object in whichthe work is embodied.
17 U.S.C. § 202; accord id. § 106A(e)(2) (drawing same distinction under VARA).
Ownership of a physical copy of work entitles the owner to publicly
display the work:
Notwithstanding the provisions of section 106(5) [granting thecopyright holder the exclusive right to display a work], the owner of aparticular copy lawfully made under this title … is entitled, withoutthe authority of the copyright owner, to display that copy publicly …to viewers present at the place where the copy is located.
17 U.S.C. § 109(c).135
135 The term "copy," as used in this section and elsewhere in the Copyright Act,includes an original work. See 17 U.S.C. § 101 ("The term 'copies' includes thematerial object … in which the work is first fixed.").
[I]n order for a party to violate the Copyright Act by appropriatinganother artist's right to create derivative works, the violating artistmust, himself or herself, create an original, derivative work of art.
MASS MoCA, 565 F. Supp. 2d at 259.138 No "original, derivative work of art,"
was created by MASS MoCA's actions.
Under the Copyright Act, a copyright holder has the exclusive right to
create derivative works from the copyrighted work. 17 U.S.C. § 106(2). A
"derivative work" is a "work based upon one or more preexisting works, such as a
translation ... or any other form in which a work may be recast, transformed, or
adapted." 17 U.S.C. § 101. To constitute a derivative work, the work must have
some minimum measure of creativity. See Feist Publ'ns, Inc. v. Rural Tel. Serv.
Co., Inc., 499 U.S. 340, 345, 362-63 (1991) (finding that "there is nothing remotely
creative about arranging names alphabetically in a white pages directory"). Simple
physical modification of artwork without any artistic purpose does not meet that
standard. For example, in Lee v. A.R.T. Co., the Seventh Circuit declined to find
that note cards mounted onto ceramic tiles and covered with epoxy were derivative
works of the copyrighted note cards. 125 F.3d 580, 582-83 (7th Cir. 1997). The
138 Büchel claims that there was "no legal or factual basis for the district court'sconclusion" that there was no violation of any right to create derivative worksunder the Copyright Act. Büchel's Brief, at 52. Notwithstanding Büchel'sdispleasure with the holding, the District Court did set forth the applicable law,relevant undisputed facts, and correctly held that no derivative work wascreated. MASS MoCA, 565 F. Supp. 2d at 261.
CERTIFICATE OF COMPLIANCE WITHFEDERAL RULE OF APPELLATE PROCEDURE 32(a)
Certificate of Compliance with Type-Volume Limitation,Typeface Requirements, and Type-Style Requirements
1. This brief complies with the type-volume limitation of Fed. R.App. P. 32(a)(7)(B) because this brief contains 13,853 words, excluding the partsof the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R.App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6)because this brief has been prepared in a proportionally spaced typeface usingMicrosoft Word 2003 in Times New Roman, 14 point.
Dated: April 2, 2009 /s/ Kurt Wm. HemrKurt Wm. Hemr
CERTIFICATE OF SERVICE
I, Kurt Wm. Hemr, hereby certify that on April 2, 2009, I caused twocopies of the foregoing Brief Of Plaintiff-Appellee Massachusetts Museum OfContemporary Art Foundation, Inc. to be served by overnight courier upon John C.Blessington and Sara E. Yevics, K&L Gates L.L.P., State Street Financial Center,One Lincoln Street, Boston, Massachusetts 02111, and by overnight courier uponGeorge T. Conway III and Elaine P. Golin, Wachtell, Lipton, Rosen & Katz, 51West 52nd Street, New York, New York 10019, counsel for defendant-appellant.
Pursuant to Fed. R. App. P. 25(d)(2), I further certify that on April 2,2009, I caused the original and nine copies (one of which being a computerreadable disk pursuant to Local Rule 32) of the foregoing Brief Of Plaintiff-Appellee Massachusetts Museum Of Contemporary Art Foundation, Inc. to bemailed to the Clerk of the United States Court of Appeals for the First Circuit byexpress mail.
Dated: April 2, 2009 /s/ Kurt Wm. HemrKurt Wm. Hemr