Buchel Brief

Case: 08-2199 Document: 00113948254 Page: 1 Date Filed: 03/02/2009 Entry ID: 5322416
No. 08-2199
d
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
TABLE OF CONTENTS
Page
Preliminary Statement .............................................................................................. 1
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
Summary of Argument ........................................................................................... 35
Argument ................................................................................................................ 36
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
Conclusion .............................................................................................................. 53
ii
TABLE OF AUTHORITIES
Cases Page
Carter v. Helmsley-Spear, Inc.,

71 F.3d 77 (2d Cir. 1995) ...................................................................... passim
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
Doyle v. Huntress, Inc.,

419 F.3d 3 (1st Cir. 2005) ............................................................................ 39
Dumas v. Gommerman,
865 F.2d 1093 (9th Cir. 1989) ...................................................................... 41
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
Seshadri v. Kasraian,
130 F.3d 798 (7th Cir. 1997) ........................................................................ 48
Velásquez-García v. Horizon Lines of Puerto Rico, Inc.,

473 F.3d 11, 15 (1st Cir. 2007) ............................................................. 36, 50
iii
Statutes
17 U.S.C. § 101 ................................................................................................ passim
17 U.S.C. § 106A ............................................................................................. passim
17 U.S.C. § 106 ................................................................................................ passim
17 U.S.C. § 109....................................................................................................... 51
17 U.S.C. § 504................................................................................................... 1, 53
28 U.S.C. § 1291 ....................................................................................................... 5
28 U.S.C. § 1331 ....................................................................................................... 5
28 U.S.C. § 1332 ....................................................................................................... 5
28 U.S.C. § 2201....................................................................................................... 5
Other Authorities
H.R. REP. NO. 101-514 (1990),

reprinted in 1990 U.S.C.C.A.N. 6915................................................... passim
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
iv
PRELIMINARY STATEMENT
The central question on this appeal is whether a simple statute should be
applied by its plain terms. The statute is the Visual Artists Rights Act, known as
VARA, 17 U.S.C. § 106A, which Congress added to the Copyright Act in 1990.
VARA protects the “moral rights” of visual artists, “rights of a spiritual, non-
economic and personal nature,” rights that “exist independently of an artist’s copy-
right in his or her work.” Carter v. Helmsley-Spear, Inc., 71 F.3d 77, 81 (2d Cir.
1995) (citations omitted). Long recognized elsewhere in the world, these rights
“spring from a belief that an artist in the process of creation injects his spirit into
the work.” Id. They are protected in order to foster “a climate of artistic worth and
honor that encourages the author in the arduous act of creation.” H.R. REP. NO.
101-514, at 5 (1990), reprinted in 1990 U.S.C.C.A.N. 6915, 6915. And so VARA
broadly prohibits the “distortion, mutilation, or other modification of [a visual art-
ist’s] work which would be prejudicial to his or her honor or reputation.” 17
U.S.C. § 106A(a)(2), (3). Unless the artist expressly waives his moral rights in
writing, id. § 106A(e)(1), any violation of those rights entitles the visual artist to
actual or statutory damages under the compensatory remedy provisions of the
Copyright Act, id. § 504.
This case presents as clear an example of a VARA violation as one could

imagine. The Massachusetts Museum of Contemporary Art, MASS MoCA, re-
cruited a renowned Swiss artist, Christoph Büchel, to create a massive and ambi-
tious work in the museum’s cavernous, football-field-long Building 5 in North Ad-
ams. The museum persuaded Büchel to devote his time and energy to the project
by claiming that it had the financial, technical, and logistical wherewithal to assist
him in carrying out the project. But it did not. The museum failed to obtain the
financial backing needed to complete the show as originally conceived. It also
mismanaged the project, causing extensive delay, and, by failing to follow
Büchel’s directions, wasted what money it had. It began pressuring Büchel to cut
back on the project, at times doing so without his consent—as though the museum,
and not Büchel, were the artist. Then, after Büchel had spent months working on
the installation, the museum claimed to have run out of money altogether. The
project was forty percent complete.
Büchel told the museum that he could not continue unless the museum
lived up to its original commitment by securing the needed funds and allowing
him, without interference, to finish the installation as originally and mutually
agreed. But instead of complying with the artist’s requests, MASS MoCA em-
barked upon what its internal emails called “Plan B”: an intentional scheme to vio-
late Büchel’s moral rights by finishing his work without his involvement and ex-
hibiting it over his repeated objections. The museum’s employees proceeded, as
the museum’s director testified, to “guess” at what Büchel would have wanted,
A511,1 and spent months distorting and modifying his work, often in ways that di-
rectly contradicted his expressed intent. The museum’s employees fully under-
1
Citations to the Joint Appendix take the form “A___”; citations to the Adden-
dum to this brief take the form “Add. ___.”
2
stood that they were infringing Büchel’s moral rights. According to their internal
emails, they knew they were “tread[ing] on ground that Buchel asked us to stay
away from,” that the project was still “Buchel’s intellectual property,” that “it is
still art and still belongs to Buchel,” that Büchel was the “artist for whom we
shouldn’t make decisions,” and that the museum was creating “intellectual prop-
erty issues” that could put it “in a place where we do not want to be … legally.”
A774-75, 1105, 1133.
And while it was modifying and distorting Büchel’s unfinished work,
MASS MoCA vigorously promoted the installation, in the press and in the art
world, as Büchel’s. The museum had not yet opened the installation to the general
public, but it displayed the work repeatedly, in an uncovered state, to people in the
art world whose judgments could affect Büchel’s reputation and career—
journalists, art critics, museum directors and curators, sponsors, supporters and
others. As the Boston Globe reported, the museum was extensively “showing off
the unfinished project” to a variety of visitors; even the Governor of Massachusetts

got a look. A795. The museum thus exhibited Büchel’s distorted, unfinished
work, even though he had repeatedly told the museum not to, and even though the
museum had altered Büchel’s work in many material respects. In doing so, it vio-
lated VARA.
Then the museum took things one disingenuous step further. The day af-
ter the museum, with great fanfare, brought this lawsuit seeking a declaration that
exhibiting the installation did not violate VARA, it fully opened the installation to
3
the public, to its paying customers. In doing so, it claimed to be complying with
VARA by covering the installation with yellow tarpaulins, so that the public (sup-
posedly) couldn’t see it. This was nothing but a sham. Photographs in the record
show why: the tarps didn’t go all the way down to the floor, and they certainly
didn’t go all the way to the ceiling. Visitors could view vast chunks of the massive
work that towered above the fencing, and could easily peek underneath it, as they
walked the very pathways that were part of the unfinished work. As one visiting
art critic put it, “MASS MoCA is hiding an elephant behind a napkin,” and “[i]t
doesn’t take much effort or imagination to see most of the work.… So this is a
wink, wink, wrap show.” A1488.
The museum’s yellow-tarpaulin ruse was thus another violation of
VARA. It distorted and modified Büchel’s work, and prejudiced his honor and
reputation. As a New York Times art critic put it, the tarp exhibition gave viewers
“an inaccurate sense of [Büchel’s] art, and this indeed is a form of damage” to
Büchel. A1587. The Globe’s critic scathingly remarked that MASS MoCA had
“exact[ed] revenge” upon Büchel by “turning his project into a show that misrepre-
sents, dishonors, vilifies, and even ridicules him.” A1128. This critic added:
“what MASS MoCA has done certainly misrepresents Buchel’s art,” and “many
people are going to judge him and his work on the basis of this experience.”
A1128. The record shows the Globe writer was right: some people did judge
Büchel’s work on this basis, with at least two critics harshly saying the work was
4
better off with the tarps, and one likening the work to excrement. A1127, 1487-
88.
In dismissing Büchel’s VARA damages counterclaim, the district court

inexplicably ignored all of this evidence—manifest error under Rule 56. Plainly
animating the district court’s decision was an erroneous proposition of law—the
idea that, somehow, unfinished work is not protected by VARA. Yet even the mu-
seum disavowed this argument, A1665, and the court’s opinion itself identified a
circumstance under which VARA moral rights vested in an unfinished work,
A1729. In fact, the Copyright Act and thus VARA do protect unfinished work—
just as MASS MoCA conceded. For all of these reasons, and others set forth be-
low, the judgment of the district court must be reversed.
STATEMENT OF JURISDICTION
The district court had jurisdiction over this action under 28 U.S.C.
§§ 1331, 1332(a)(2), and 2201(a), because the action arises under the Copyright
Act, 17 U.S.C. § 101 et seq., and because the matter in controversy exceeds
$75,000 and this action is between a citizen of a State and a citizen of a foreign
state. The district court entered final judgment disposing of all parties’ claims on
July 11, 2008, and the notice of appeal was timely filed on August 8, 2008. This
Court accordingly has jurisdiction over this appeal under 28 U.S.C. § 1291.
5
STATEMENT OF THE ISSUES PRESENTED
1. Whether the district court erred in granting summary judgment for
plaintiff-counterclaim defendant MASS MoCA and in denying summary judgment

for defendant-counterclaim plaintiff Büchel on his second counterclaim, which
seeks damages under the Visual Artists Rights Act of 1990, 17 U.S.C. § 106A.
2. Whether the district court erred in granting summary judgment for
MASS MoCA, and in denying summary judgment for Büchel on his third, fourth
and fifth counterclaims, which seek damages under Sections 106(5) and 106(2) of
the Copyright Act of 1976, 17 U.S.C. §§ 106(5), 106(2).
STATEMENT OF THE CASE
MASS MoCA brought this action on May 21, 2007. A3, 12. Its com-
plaint asserted a single claim for declaratory relief under VARA, 17 U.S.C.
§ 106A, a claim “seek[ing] a declaration that it is entitled to present to the public
the materials and partial constructions assembled in connection with the exhibit
planned with … Büchel.” A18. On July 2, 2007, Büchel answered the complaint
and filed five counterclaims against MASS MoCA. A4, 24. The first counterclaim
sought a declaratory judgment under VARA “that MASS MoCA cannot present to
the public the unfinished Work of Art or any of its component elements,” as well
as a permanent injunction against any such display. A41. The second counter-
claim sought actual and statutory damages under VARA for the museum’s having
previously “allowed numerous individuals to see and pass through” the unfinished
installation without the yellow tarps, and for its having “allow[ed] the public to see
6
and pass through” it with the yellow tarps. A42. The third, fourth and fifth coun-
terclaims sought damages and injunctive relief under Sections 106(5) and 106(2) of
the Copyright Act, 17 U.S.C. §§ 106(5), 106(2). A42-45.
MASS MoCA moved for expedited proceedings, A4, 49, and on July 13,
2007, Judge Ponsor granted the motion, A248. The order granting expedited pro-
ceedings provided for the exchange of documents within two weeks, allowed each
side to take one deposition, and provided for an inspection and photographing of
the unfinished installation as well as a view of the installation by the district court.
A248. In accordance with this order as later revised by Chief Magistrate Judge
Neiman, A7, 333, both sides on August 31, 2007 filed cross-motions seeking re-
spective summary judgments on the complaint and all counterclaims, A7, 8, 335,
878. On September 18, 2007, from approximately 4:30 p.m. to 6:45 p.m., Judge
Ponsor visited Building 5 and viewed the unfinished installation. A10, 1630-31.
On Friday, September 21, 2007, the district court heard oral argument on
the cross-motions and issued an oral ruling from the bench. A1627-1702; Add. 8-
19. Judge Ponsor’s oral ruling addressed only MASS MoCA’s claim for declara-
tory relief and Büchel’s request for injunctive relief under his first counterclaim.
The judge stated that he would later issue a detailed written opinion that would
elaborate on his oral rulings and address the remaining claims. Add. 10; A1693.
On Büchel’s counterclaim, the district court denied relief, and on MASS MoCA’s
request for declaratory relief, it held that MASS MoCA was “entitled to present to
the public” the unfinished work, but only if the museum posted a “disclaimer …
7
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.
8
STATEMENT OF FACTS
A. Christoph Büchel
Christoph Büchel is a visual artist. A citizen of Switzerland, he lives and
works in Basel. A879, 916. He is “known for building elaborate, politically pro-
vocative environments for viewers to wander, and sometimes to crawl, through.”
A856. As one writer explains, Büchel “has used actual objects—rather than stage
sets or props—to construct unnervingly realistic installations that evoke political
narratives and overt social critique. His works are laid out like obstacle courses,
mazes of rooms that viewers enter and explore as if wandering through a physical
description of a dark singular imagination.” A862.
Büchel is known for his extraordinary attention to detail. As a Boston
Globe art critic described his experience in viewing one of Büchel’s installations:
“What was clear about the installation was that the artist worried over every object
in it the way a literary novelist worries over every word and every sentence.”
A1128. A writer at the New York Times has written that “Mr. Büchel’s environ-
ments are huge in scale,” “like bristling three-dimensional history paintings,” yet
are “so obsessively detailed that they might best be described as panoramic col-
lage.” A1586.
B. MASS MoCA recruits Büchel to create an

installation at the museum.
In early 2006, after discussion over the prior several months, MASS
MoCA recruited Büchel to create a new installation at its Building 5 gallery, a
9
space the size of a football field. A879, 916-17, 1345. In response to the mu-
seum’s invitation, Büchel proposed an installation, to be entitled Training Ground
for Democracy, that was inspired by mock villages and virtual-reality training
software that the United States Army uses to train soldiers for the Iraq war and the
war on terror. A879, 917. The museum fully understood that “Büchel’s projects
typically require a lengthy period of installation and preparation,” and that Train-
ing Ground “will be his largest venture to date.” A573. As its director testified,
the museum understood that Büchel’s “artistic style involve[s] a keen attention to
detail,” and that he was a hands-on artist “who liked to work in the flesh at a one-
to-one scale model.” A506, 1250. The museum also understood that Büchel was
going to be “install[ing] something on [a] massive … scale while also paying atten-
tion to detail on an almost microscopic level.” A1270. MASS MoCA described
Training Ground as a “behemoth project” and a “mega-project[]” that would nec-
essarily “require additional support” financially from outside sources. A437, 573,
609.
Training Ground for Democracy was itself to be a mock village, a space
with several major, integrated architectural and structural elements through which
a visitor could walk, even climb. Like the soldiers who trained in the Army’s
mock villages, visitors to the installation would themselves engage in training
through role-play. The training in Training Ground, however, would be for a col-
lective project called “democracy.” Visitors could train for many things: to be an
immigrant, to vote, to protest, to revolt, to be the object of propaganda, to be inter-
10
rogated, detained, or tried, to reconstruct a disaster, to train iconoclasm, to live in
lawless conditions, and to engage in other social and political behavior. A879-80,
917.
The elements of the work would consist of found or rebuilt objects that
would house the various social situations that the work was to depict. A mobile
home was to house a mobile tribunal. Cargo containers would house illegal immi-
grants, voting stations, a jail, and a museum. There would be a single-family
house divided by a wall, and a thirty-foot section of a destroyed passenger-airplane
fuselage would simulate a disaster area. The content of each component element,
and its function within the overall work, was to be defined by the specific details of
each fictitious situation that the work would depict. As thus conceived, the work
of art as a whole would be finished, and its vision realized, only when all of its
elements were completed and fully detailed. A917-19, 880-81.
Büchel visited MASS MoCA as an artist in residence for ten days in
August 2006. He prepared a schematic model of Training Ground that contained
the major elements of the work, as well as smaller details of scenes between these
major elements. A918-19, 881. These major elements included a cinema, a house,
a mobile home, various sea containers and caravans (to house, among other things,
a looted store, voting booths, a museum, a jail, and a watch-tower), a playground, a
school, a disaster zone (consisting of the passenger-jet fuselage segment), a bomb
carousel, a statue, a mobile church, a mobile theatre, several vehicles, and other
scenes. A919, 948-50, 881.
11
MASS MoCA approved Büchel’s model for Training Ground along with
a set of pictures he provided. The museum agreed to provide logistical and techni-
cal support for the installation, to procure the objects needed to construct it, and to
exhibit the completed work. And the museum agreed to fund the installation in its
entirety. A919, 881. In particular, although the museum suggested that Büchel’s
galleries contribute money for the project, Büchel made clear from the outset that
he did not want them doing so. A921. Given his financial arrangements with his
galleries, Büchel would have been responsible for 50 percent of any money they
contributed to MASS MoCA. So in asking for money from the galleries, the mu-
seum was asking Büchel to contribute financially, which he did not want to do.
A921. He would contribute his time and talent only.
Before he began work, Büchel asked MASS MoCA for an estimate of
how much money the museum had for the installation, but the museum would not
give him an answer. A920, 954. Instead, the museum concealed from Büchel
what it was willing and able to spend. Even before the project began, without tell-
ing Büchel, the museum wrote to his European gallery, Hauser & Wirth, to ask it
for money—even though Büchel had consistently made clear that he would not al-
low his galleries to contribute. A573-75. In making this request, the museum’s
director, Joe Thompson, discussed budget numbers, but asked the gallery not to
share the information with Büchel. “I ask that you keep the framework of this pro-
posal confidential: … I’ve not yet met an artist who can’t spend multiples of the
12
original budget, so I like to control that process very tightly….” A574. The mu-
seum thus controlled all spending.
In deciding to proceed with the project, Büchel relied upon MASS

MoCA’s claimed expertise in organizing and mounting large-scale and complex
installations. A919. Büchel and MASS MoCA did not enter into any written
agreement relating to Training Ground for Democracy. A919, 881, 436, 1179-80.
In particular, not only was no budget agreed upon, but artist and museum never
discussed, and certainly never agreed upon, what was to happen if the cost of in-
stallation turned out to be more than the museum anticipated. A919, A538. And
Büchel never waived—in writing or otherwise—any of his rights under VARA in
particular or the Copyright Act generally. A920, 882, 438, 1181; see 17 U.S.C.
§ 106A(e)(1) (VARA waiver provision).
After Büchel left at the end of August 2006, MASS MoCA, guided by
Büchel, attempted to acquire materials for potential use in the installation—the air-
plane fuselage, a statue, trailers, a mobile home, a house and many other items,
large and small. E.g., A620-26. One of MASS MoCA’s curators described the
search for these items as “the ultimate scavenger hunt.” A618. At the same time,
even though it had claimed the ability to pull off the massive project, the museum
began expressing concerns about the fact that it hadn’t yet found a sponsor to pay
for it all.
“I’m terrified about the costs,” wrote museum director Joe Thompson in a
September 2006 email. “So far we have zero in sponsorships, nada.” A957. At
13
the same time, even though the project had only begun, the museum began claim-
ing that it was over budget. In another email, Thompson for the first time identi-
fied a budget figure, of $160,000, and asserted that the installation was “already
$40,000 over,” and that, as a result, “[w]e’re way out on a limb, and it can’t get
more expensive….” A959. Still, Thompson acknowledged that, given the pro-
ject’s scope, it would be difficult to keep costs down. He wanted “to find a way to
shave $40,000,” but conceded that “it’s difficult to see where that’s coming from,
given the major elements” of the installation. A959. At the museum’s request,
Büchel made suggestions about where the museum might obtain sponsorships.
A921, 967. And Büchel again reminded MASS MoCA that “my galleries won’t
finance the show,” and that the museum “will have to find other financial sources
for the show.” A921, 976.
At the same time, significant tensions began to arise between Joe Thomp-
son and Büchel, when, as Thompson put it, the museum began “making a few de-
cisions in [Büchel’s] stead.” A1131. As Joe Thompson put it in an internal mu-

seum email on October 28, 2006, by doing so Thompson had run afoul of Büchel’s
“rock solid integrity” and “clear vision,” and he “fear[ed] I may have damaged the
relationship.” A1131.
C. Büchel works on the installation in North

Adams, but is hindered by the museum’s
organizational failures.
Büchel returned to North Adams on October 29, 2006 to complete Train-
ing Ground for Democracy, with three skilled assistants from Switzerland soon
14
joining him. A882, 922. But MASS MoCA wasn’t ready for him. The museum’s
director, its head of fabrication, and its visual arts production manager were all
away. A922, 646, 705. Building 5 wasn’t even ready: removal of the previous
installation from Building 5 was delayed for three weeks, and was not completed
until about November 15; and the overhead door to Building 5 that was needed to
allow larger objects to be brought in had not yet been completed, and was likewise
not completed until November 15. A922, 705. MASS MoCA had failed to orga-
nize several of the key elements of the installation. MASS MoCA did not even as-
sign a project manager for the massive installation until December 15, 2006, one
day before the original opening date, even though Büchel had been requesting one
for nearly two months. A922, 675, 705. And much of what MASS MoCA had ac-
quired on its so-called scavenger hunt was unusable. A705.
The inevitable result of the museum’s logistical and organizational fail-

ures was delay—which MASS MoCA has publicly admitted was its own fault.
The installation was originally scheduled to open on December 16, 2006. A882,
923, 981. But for weeks leading up to the scheduled opening, Büchel had repeat-
edly made clear that the museum’s lack of organization and competence meant that
the show would not be finished on time. Yet the museum refused to announce a
postponement, and even suggested that the installation be opened as an unfinished
“work-in-progress,” to be finished well after the opening of the show. A534.
By early December 2006, the situation had become intolerable: an exas-

perated Büchel firmly insisted that the museum postpone the show. A655. And he
15
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
16
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
17
unfinished, a work in progress. A925, 884. There were “several key structural
elements that ha[d] not even been organized.” A788.
Büchel left North Adams extremely disappointed and disillusioned with

MASS MoCA. The museum had “underestimated th[e] project logistically and
with regard to its schedule.” A705; accord A786. The museum was disorganized,
as illustrated by its delay in appointing a project manager, and its “information

flow” was chaotic. A1442. And, critically, its employees frequently failed to fol-
low the artist’s directions. A722-23, 1442. As a result, as Büchel told Joe
Thompson in December 2008, “things [were] going wrong every day,” and “there
[were] many things [that] ha[d] to be done twice or three times (and as you know,
it doesn’t get faster cheaper or better that way).” A1442; accord A788. Büchel
also believed strongly that the museum had wasted not only time but money, by
expending funds on items that he couldn’t use, and by ignoring his suggestions on
how to reduce costs. A706, 788; see also A543.
Museum personnel in “many cases” made significant changes to parts of
the installation without Büchel’s approval, to the point that Büchel felt they were
engaging in virtual “sabotage.” A1442, 1449. Büchel had to ask Joe Thompson to
tell Richard Criddle, the museum’s head of fabrication, “that he has to respect my
crew and the fact that I am supposed to be the artist.” A1443. Büchel left the mu-
seum dismayed that he was “hav[ing] to make constantly tons of compromises,
[and] hav[ing] to fight constantly against stubbornness as well [as] against the in-
stitution and work with people that think they know my art better than [I] do.”
18
A1449; accord A789. He felt that museum personnel either “did not understand
the work or [did not] believe[] enough in the artist to allow him to manage his own
installation,” and that “[t]he museum treated the project as though it was the art-
ist’s wish list for Christmas, eliminating necessary and key elements that were al-
ways listed as part of the artwork from the beginning.” A789. In short, the mu-
seum was unilaterally cutting back on what had been agreed upon, and was making
artistic judgments without consulting the artist.
D. The museum claims to have run out of money.
Not long after Büchel left North Adams in mid-December 2006, MASS
MoCA informed Büchel’s gallery representatives that the museum had run out of
money for the project. A924, 786. Even though MASS MoCA had committed to
fund Training Ground, and even though Büchel, at the museum’s request, had can-
celled two other shows to devote his time to it, the museum began refusing to pay
Büchel’s assistants and other bills. A924, 536. And the museum again went be-
hind Büchel’s back to ask his galleries for money. Without telling Büchel, and
even though Büchel had repeatedly made clear that he did not want his galleries to
contribute, the museum asked them for a bailout: $100,000 to cover the museum’s
past expenses, and $80,000 to complete the installation. A924; see also A673.
The museum asked the galleries to be “discreet” about and to “keep …
confidential” its monetary issues, A673, 689—in other words, again, not to tell
Büchel. But the galleries told Büchel anyway. A924. Upon learning that MASS
MoCA was unable to pay his assistants, or even to pay for their return flights to
19
enable them to continue working, Büchel postponed his own return. A926. Given
the museum’s organizational failures, and now its claimed financial problems, and
given what he perceived to be its lack of respect for his artistic judgment, he no
longer trusted MASS MoCA. A926. He sought assurances that Training Ground
for Democracy could be completed as had originally been agreed upon. A926.
Specifically, Büchel told MASS MoCA in a January 16, 2007 email that
the museum had “proved repeatedly not to be capable—neither logistically, sched-
ule- nor budget-wise—to manage my project, nor did you understand what my
work is about and how it has to be treated.” A704. He told the museum that he
would “return to accomplish the remaining 60% of my show” only if the budgetary
and logistical problems could be fixed: among other things, “another crew” had to
be hired, one that “replaces partially” the museum’s work crew; the museum had
“to organize the money needed and raise sufficient funds, before any one of us re-
turns”; and there was to be no more “pressure or compromises” from the museum
about “how things have to be done, neither from you [n]or your crew.” A704-05.
Büchel wanted to make sure that his assistants got paid, and that no more money
was misspent by MASS MoCA. A557-58. Büchel told MASS MoCA he could do
his job if the museum would competently do its job instead of trying to do his,
A705, and made clear that he would not give the museum permission to show the
installation to anyone in an unfinished state:
I will not give you permission to show an unfinished project nor will I
show nor let you show any work in progress, as you proposed already
earlier.
20
A705 (emphasis added).
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-
21
toph Büchel work of art,” and that Büchel would “disavow the exhibition.” A725
(emphasis added). Thompson concluded by expressing the belief that showing
Büchel’s unfinished work would garner the museum “more attention” than the fin-
ished work would have. A725.
By February 6, 2007, after various unfruitful email exchanges between
Büchel and Thompson, hope that artist and museum could work together had
dimmed significantly. E.g., A764. Yet the museum continued to work on the pro-
ject without Büchel’s involvement. The museum turned to what its internal emails
called “Plan B”—exhibiting the incomplete Training Ground installation as a
failed work-in-progress, and without Büchel’s permission. A775-76. The mu-
seum’s files reflect that one object of this “Plan B” was to use the threat of exhibit-
ing the incomplete installation—and the concomitant threat of damage to Büchel’s
reputation—to force Büchel to complete the project on the museum’s terms. E.g.,
A774 (“I think that the opening of the show will be a clear ‘game over’ message to
[Büchel].”); A803 (letter threatening to show unfinished work).
By mid-February 2007, “Plan B” was in full swing. On February 14, for

example, Joe Thompson gave the museum’s curator, Nato Thompson, extensive
instructions on how to complete various elements of the installation—instructions
that clearly involved judgments properly reserved for the artist. A775-76, 1133-
34. MASS MoCA’s own internal emails reflect that, in its effort to complete
Büchel’s work without Büchel’s involvment, the museum was simply guessing at
what artistic choices Büchel might have made. Do “[a]nything else Dante [Birch,
22
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.
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-
23
pressly told MASS MoCA that it was using an “outdated drawing” of the house,
and that it should not build the wall until Büchel returned. A927, 995. Yet MASS
MoCA built the wall anyway. A927-28; see also A776, 1134 (“[o]nce we really
commit to plan B, we’ll finish the cinder block wall (in and out)”). Büchel told
MASS MoCA that the bomb “carousel … will have to be dismantled again” be-
cause of the museum’s failure to follow directions, A995, and the museum specifi-
cally understood it had to “take [it] down” accordingly, A1025. The bomb carou-
sel was never taken down. A929. Büchel told the museum to “wait” and not “at-
tach … the two entrance parts to the house.” A990. But the museum didn’t wait.
A932.
Büchel recounts at length the museum’s other modifications and distor-
tions of his art in his affidavit and deposition below. See A926-34, 563-66. The
bottom line: to carry out Plan B, the museum worked on the unfinished installation
for several months after Büchel left North Adams—without guidance from the art-
ist, and often in direct contravention of his instructions.
F. Museum employees recognize the impropriety

and illegality of “Plan B.”
Joe Thompson’s subordinates recognized the impropriety—and illegal-
ity—of proceeding this way, and they tried to warn him away from it. Dante
Birch, the museum’s production manager, expressed grave concern to his boss in a
February 14, 2007 email. “Going ahead with some of these requests treads on
ground that Buchel asked us to stay away from,” he wrote, adding that “if the artist
24
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.…
25
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.…
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
source material. E.g., A1108, 1116, 786, 795. In fact, despite Büchel’s repeated
insistence that the unfinished work not be exhibited, Joe Thompson testified that it
was “MASS MoCA’s habit” to show the unfinished work to visitors, and that un-
like “[m]any museums,” MASS MoCA did not “go to great lengths to construct
shields to keep people out of the gallery during the construction process.” A1215
(emphasis added). Thus, Thompson told a visiting donor in February 2007 that he
“want[ed] to show you a black hole project … the work in progress is great, so find
me, and we’ll sneak back there.” A1116 (emphasis added). In March, he invited
another friend and supporter of the museum to “[c]ome up” to North Adams to
“[s]ee our Training Ground for Democracy, … [t]he best unfinished work of art of
26
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.
27
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).
28
der to make the unfinished installation look presentable for [the museum’s] guided
tours.” A812.
Similarly, in a letter dated May 2, 2008, Büchel’s counsel demanded that

“Mass MoCA must confirm that under no circumstances will it allow public, press,
or other visitor access to the unfinished work,” and warned that allowing such ac-
cess violated VARA. A829. “[G]iven the enormous publicity the project has al-
ready received,” Büchel’s counsel warned, “it would be impossible to disassociate
Mr. Büchel’s name from the work and, in addition, it could not be accomplished
without distorting and modifying elements of the work against his wishes.” A829.
H. “An elephant behind a napkin”: MASS MoCA

opens Training Ground, partially covered, to the
public, and critics judge it as Büchel’s work.
But the museum continued with “Plan B” anyway—and in the most disin-
genuous way. On May 22, 2007, the day after the museum brought this lawsuit,
MASS MoCA announced in a press release that “it has cancelled the presentation
of Training Ground for Democracy, a large-scale installation planned with Swiss
artist Christoph Büchel,” and that, instead, in four days, in the same football-field-
length Building 5 gallery space, the museum would present “Made at MASS
MoCA,” which the museum claimed was “a documentary project exploring the is-
sues raised in the course of complex collaborative projects between artists and in-
stitutions.” A834, A1492. The press release mentioned Büchel by name repeat-
edly, and simultaneously announced the filing of this lawsuit against him. A834,
A1492.
29
“Made at MASS MoCA” was a massive publicity stunt designed to embar-
rass Büchel by presenting his incomplete work in an extraordinarily distorted way.
The “documentary” part of MASS MoCA’s show consisted of what the Boston
Globe’s art critic, Ken Johnson, called “a slick, disingenuous, egregiously self-
serving photo and text display called ‘Made at Mass MoCA’ in a small gallery at
the end of the Buchel hall [Building 5].” A1127. The small exhibit “tells viewers
all about the many successful large scale projects [the museum] has produced”
previously, to convey “[t]he implicit message … that Buchel must be a real jerk to
have been so uncooperative.” The exhibit also included a “bulletin board adorned
with newspaper articles describing the controversy [over Training Ground], mainly
in terms unfavorable to Büchel.” A1127; see A1093 (inspection photograph).
But the rest of “Made at MASS MoCA”—what filled the rest of the mas-
sive main gallery—consisted of Büchel’s unfinished work. As MASS MoCA’s
May 22, 2007 press release explained, to get to the small anti-Büchel display, visi-
tors first had to “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 press release claimed that “[r]easonable steps
have been taken to control and restrict the view of these materials, pending a court
ruling which is being sought by MASS MoCA.” A835, 1493. These materials, the
press release emphasized, “include[d] a two-story Cape Cod-style house, a movie
theater, cinder block walls, numerous sea containers, a mobile home, multiple ve-
hicles, and thousands of found objects.” A835, 1493.
30
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.
So this is a wink, wink, wrap show.
31
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.
32
A1127.
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 ….
33
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).
34
SUMMARY OF ARGUMENT
Absent an explicit written waiver, VARA flatly prohibits the “distortion,
mutilation, or other modification of [a visual artist’s] work which would be preju-

dicial to his or her honor or reputation.” 17 U.S.C. § 106A(2), (3). The statute’s
protections apply here: contrary to the district court’s repeated suggestions,
VARA fully applies to unfinished works. The Copyright Act’s definitions section,
Section 101, makes clear that works in progress are covered by that Act, and thus
by VARA: among other things, it provides that “the portion of [a work] that has
been fixed at any particular time constitutes the work as of that time.” Id. § 101
(definition of “created”). Similarly, VARA’s legislative history expressly refers to
examples of preliminary, unfinished works that Congress intended to protect. And
case law confirms the point. Accordingly, Büchel’s VARA claims turn on the
simple factual question of whether MASS MoCA distorted or modified Büchel’s
work to the detriment of his honor or reputation. As is shown below, the record
indisputably reflects that MASS MoCA did precisely that.
The evidence likewise shows that the MASS MoCA violated Sections
106(5) and 106(2) of the Copyright Act. Section 106(5) gives Büchel, as the copy-
right holder in Training Ground, the exclusive right “to display the copyrighted
work publicly.” Id. § 106(5). MASS MoCA violated this right by displaying the
installation publicly without Büchel’s permission. And Section 106(2) gives
Büchel the exclusive right “to prepare derivative works based upon the copyrighted
work.” Id. § 106(2). Because a “derivative work” broadly includes “any … form
in which a work may be recast, transformed, or adapted,” id. § 101, MASS
35
MoCA’s unauthorized modifications of Training Ground, and its partial covering
of it with yellow tarps, constituted the preparation of derivative works in violation
of Section 106(2).
ARGUMENT
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.
Summary judgment is appropriate when the evidence “show[s] that there
is no genuine issue as to any material fact and that the movant is entitled to judg-
ment as a matter of law.” FED. R. CIV. P. 56(c). “An issue is genuine ‘if the evi-
dence is such that a reasonable jury could return a verdict for the nonmoving
party,’ and a fact is material if it has the ‘potential to affect the outcome of the
suit.’” Velásquez-García v. Horizon Lines of Puerto Rico, Inc., 473 F.3d 11, 15
(1st Cir. 2007) (citations omitted). Here, the district court granted summary judg-
ment to the wrong party: the evidence is undisputed that MASS MoCA modified
Büchel’s unfinished work and that it harmed Büchel’s reputation in doing so.
A. The Visual Artists Rights Act of 1990
In 1990, through the passage of the Visual Artists Rights Act, Congress
for the first time provided protection for the “moral rights” of visual artists under
federal law. Long recognized elsewhere in the world, artists’ moral rights are
“rights of a spiritual, non-economic and personal nature,” personal rights that “ex-
ist independently of an artist’s copyright in his or her work.” Carter v. Helmsley-
36
Spear, Inc., 71 F.3d 77, 81 (2d Cir. 1995) (citations omitted). These rights “spring
from a belief that an artist in the process of creation injects his spirit into the work
and that the artist’s personality, as well as the integrity of the work, should there-
fore be protected and preserved.” Id. (citation omitted).
VARA’s passage reflected Congress’s belief “that the visual arts covered
by this [Act] meet a special societal need, and their protection and preservation
serve an important public interest.” Phillips v. Pembroke Real Estate, Inc., 459
F.3d at 128, 134 (1st Cir. 2006) (quoting H.R. REP. NO. 101-514, at 5-6 (1990), re-
printed in 1990 U.S.C.C.A.N. 6915, 6915-16). In particular, as one legislator
quoted by the House Report on the statute observed: “Artists in this country play a
very important role in capturing the essence of culture and recording it for future
generations. It is often through art that we are able to see truths, both beautiful and
ugly.” H.R. REP. NO. 101-514, at 6, reprinted in 1990 U.S.C.C.A.N. at 6916.
VARA seeks to promote the creative work of visual arts, as “[t]he theory of moral
rights is that they result in a climate of artistic worth and honor that encourages the
author in the arduous act of creation.” Id. at 5, reprinted in 1990 U.S.C.C.A.N. at
6915.
To that end, “‘VARA grants three rights: the right of attribution, the right
of integrity and, in the case of works of visual art of ‘recognized stature,’ the right
to prevent destruction.’” Phillips, 459 F.3d at 133 (quoting Carter, 71 F.3d at 83).
It is the first two of these rights—the rights of attribution and integrity—that are
implicated here. “The former ensures that artists are correctly identified with the
37
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
38
to its terms.” Doyle v. Huntress, Inc., 419 F.3d 3, 8 (1st Cir. 2005) (quoting Dodd
v. United States, 545 U.S. 353, 359 (1st Cir. 2005)). Courts “are not free to rewrite
the statute that Congress has enacted.” Dodd, 545 U.S. at 359.
B. VARA applies to unfinished works of

visual art.
If this short and simple statute is applied as it was written, this case pre-
sents a plain violation of VARA. To begin with, there is no basis in the statute to
suggest, as the district court did repeatedly and in its written opinion, that “unfin-
ished art may not be covered by VARA at all,” and that, accordingly, “[a]s a
threshold matter, it is doubtful that VARA even covered the assembled materials
that constituted this unfinished installation.” Add. 48, 50; see also Add. 45 (“good
reason to suspect that unfinished works of art may have only limited protection”;
emphasis in original). Even the district court realized it was on shaky ground: the
court curiously, and self-contradictorily, conceded that VARA can indeed apply to
unfinished work. The court actually “hypothesize[d] [a] clear violation[] of … an

artist’s protected right of attribution, even in the case of unfinished work,” where
“Artist B purloined Artist A’s unfinished painting or sculpture, placed his own
name on it, and attempted to pass the work off as his own finished, or even unfin-
ished, creation.” Add. 46 (emphasis added). In such a case, the court observed, “it
seems likely that courts would have little trouble finding a VARA violation.” Add.
46.
39
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:
40
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
41
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,
(footnote continued)
42
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.
43
the museum; at the very least, genuine issues of material fact raised by Büchel
should have precluded dismissal of his claims.
MASS MoCA violated VARA by distorting or modifying Training

Ground to Büchel’s reputational detriment in three independent ways.
First, MASS MoCA continued to work on the installation, without
Büchel’s authorization or direction, for months after he left North Adams in De-
cember 2006; and then throughout early 2007, it repeatedly exhibited the installa-
tion, in an uncovered state, to journalists, art critics, directors and curators of other
museums, sponsors, politicians, and others. The evidence of this is undisputed.
The museum’s director admitted on deposition, for example, that the museum’s
continued work on Training Ground in 2007 consisted of “guess[ing]” what
Büchel might have done to the installation had he returned, and that in some cases
he had “no idea whether [Büchel] would ultimately approve” the museum’s aes-
thetic and design choices. A511, 1255 (emphasis added); see also A346, 506, 776,
1133, 1250. And the museum’s continued unauthorized work, indeed, contra-
dicted Büchel’s instructions and intent for the installation in numerous respects.
E.g., A563-66, 926-34; see pages 21-24, supra.
The district court’s apparent answer to this evidence was merely to assert
that “occasionally misguided” “efforts made by museum staff to implement

Büchel’s long-distance instructions … cannot form a basis for VARA liability” be-
cause “[f]umbled efforts to assist in creating, or failing to create, a work of art are
not equivalent to distortion, modification, or mutilation of the art.” A1736. Maybe
44
that was so as to the museum’s work in 2006, but that simply was not what hap-
pened in 2007. Throughout early 2007, the museum was, as noted above, effec-
tively freelancing. Far from just incompetently trying to follow instructions, its
employees warned the museum’s director that they were knowingly “tread[ing] on
ground that Buchel asked us to stay away from.” A775, 1133 (emphasis added).
They knew that the installation was “Buchel’s intellectual property,” that “it is still
art and still belongs to Buchel,” and that they were “forget[ting] [that] there is an
‘author’—an artist for whom we shouldn’t make decisions.” A1105 (emphasis
added). And they full well knew that their continued work could create “intellec-
tual property issues” and “put us in a place where we do not want to be … legally.”
A774-75, 1133; see pages 24-26, supra.
They knew all this, but they went ahead anyway, and they modified
Büchel’s work, by their own admission making “significant aesthetic and design
choices” (A346) that were not authorized and often contrary to Büchel’s intent.
Not only that, the museum did all this while promoting the unfinished work to the
press as Büchel’s, and, as the Boston Globe reported, “showing off the unfinished
project” to journalists and others of influence. A795 (emphasis added); see, e.g.,
A786, 794-95, 856, 858, 1108, 1110, 1116, 1215, 1244, 1246, 1252, 1270; see also
pages 26-28, supra. This is exactly the sort of conduct that VARA was enacted to
prevent and to remedy.
Second, MASS MoCA further distorted and modified Training Ground

by partially covering it with the yellow tarpaulins and allowing the general public
45
to see it. The district court’s response here—a conclusory statement that “an in-
stallation covered so as not to be visible can hardly be described as having been
‘exhibited,’ while distorted or otherwise,” A1736—again entirely, and inexplica-
bly, ignores the undisputed record evidence.
There are photographs in the record that show how the installation re-
mained visible in substantial part despite the yellow tarps. A934, 1095-98. And
the record is uncontradicted that visitors looked behind the tarps. Given the enor-
mous publicity that the museum’s publicity efforts had generated concerning the
dispute, it was inevitable that visitors would do just that: they wanted to see what
all the fuss was about. And MASS MoCA made it quite easy to do. “It doesn’t
take much effort or imagination to see most of the work,” wrote one art critic, be-
cause “Mass MoCA is hiding an elephant behind a napkin. So this is a wink, wink,
wrap show.” A1488 (emphasis added). You could “peek behind the yellow tarp,”
wrote another art reviewer, to see a “war-torn suburb, reproduced on a one-to-one
scale.” A862.
Another visitor described how “the 48″ tarps cover very little of Buchel’s
installation,” and instead served “rather to evoke and provoke a voyeuristic desire
on the part of the touring audience.” A1534 (with photographs). The Boston
Globe’s Sunday arts section of July 1, 2007 described at length all the many things
visitors could see behind the yellow fence: “cars, trucks, trailers, storage contain-
ers, … a white clapboard house, shipping containers stacked 20 or more feet high,
cinder-block walls topped by coils of barbed wire, a guard tower, … the upper part
46
of an amusement-park carousel, … an old movie theater.” A1127. The district
court’s conclusion that Training Ground had been “covered so as not to be visible”
simply cannot bear the weight of the record. See also pages 29-32, supra.
And the record is equally undisputed that the tarp-adorned installation was
judged by others to be Büchel’s work, and that his honor and reputation were
harmed by it. MASS MoCA has “certainly misrepresent[ed] Büchel’s art,” and
“many people are going to judge him and his work on the basis of this experience,”
wrote the Boston Globe, A1127; the display gave viewers “an inaccurate sense of
his art, … indeed a form of damage,” said the New York Times, A1587. To fully
appreciate Büchel’s work, one has to view it up close, and literally “sometimes …
crawl” through it, A856; but to partially cover a Büchel work, so that it can only be
seen at a distance, makes it simply look like “just a lot of stuff,” A1588. And as a
result of the tarp show, some critics harshly judged Büchel’s work, one saying that
“I am not sure that it suffers from being enveiled,” A1127, another simply calling
it “crap,” A1487 (emphasis added); see also pages 33-34, supra.
This is unquestionably reputational harm caused by distortion of an art-

ist’s work—exactly what Congress, in enacting VARA, intended to redress.
Third, even apart from its undisputed modifications of Büchel’s work,
MASS MoCA distorted Büchel’s work merely by showing it in its unfinished state.
To distort is to misrepresent. And to display, over an artist’s objection, a work of
art that the artist does not endorse as his finished work, and that is different from
what he intended to display, inherently misrepresents the artist’s work.
47
Specifically, VARA grants moral rights because an
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”).
48
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
49
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
50
holder. See Harper & Row, 471 U.S. at 555 (copyright owner’s “‘right to control
first public distribution’ of his work [reflects the] concern that the author or copy-
right owner retain control throughout this critical stage” of “preparation” and
“grooming for public dissemination”). The district court gave no clear reason for
its dismissal of this claim; it simply said that “for the reasons already stated” in its
discussion of VARA, MASS MoCA was “entitled to judgment”—even though that
earlier discussion gave no reason why Büchel’s Section 106(5) counterclaim
should fail.
Nor did MASS MoCA provide any basis for the dismissal of this claim. It
invoked Section 109(c) of the Copyright Act, which provides that “the owner of a
particular copy lawfully made under this title … is entitled, without the authority
of the copyright owner, to display that copy publicly …” 17 U.S.C. § 109(c); see
A130, ¶ 10 (MASS MoCA tenth affirmative defense). But the unfinished copy of
Training Ground that MASS MoCA displayed—because it was created in substan-
tial part against Büchel’s wishes and instructions—was not “lawfully made.” The
museum thus does not own a “lawfully made” “copy” of the work, even if it were
deemed to own the raw materials that went into making the work. Even as to the
raw materials themselves, there is a factual dispute over ownership that should
have precluded a grant of summary judgment. Specifically, there is evidence that,
before it brought this lawsuit, MASS MoCA understood that Büchel would own
the materials: in a September 11, 2006 email Joe Thompson sent to curator Nato
Thompson, the museum’s director said, “I assume you’ve already laid out the gen-
51
eral idea [to Büchel] (we build it, and it belongs to you),” and noted that Büchel
had the right to “sell all or part of it.” A1496.
B. Derivative Works
Büchel’s remaining two counterclaims sought damages under Section
106(2) of the Copyright Act for MASS MoCA’s violations of Büchel’s exclusive
right “to prepare derivative works based upon the copyrighted work,” 17 U.S.C.
§ 106(2), first as to the Training Ground installation itself (fourth counterclaim,
A43-44), and as to the model and plans that Büchel created to plan the installation
(fifth counterclaim, A44-45). The district court’s explanation of its grant of judg-
ment to MASS MoCA on these claims was, again, at best, conclusory. See A1737.
And there was, again, no legal or factual basis for the district court’s con-
clusion. The Copyright Act defines a “derivative work” as “a work based upon
one or more preexisting works,” including “any other form in which a work may
be recast, transformed, or adapted.” 17 U.S.C. § 101. There simply can be no dis-
pute that what MASS MoCA displayed in Building 5 “recast” or “transformed” the
version of the work that Büchel had originally set out in his models and plans and
that he left behind in December 2006. MASS MoCA has effectively acknowl-
edged this fact—it told the district court in August 2007 that the installation “re-
flect[ed] significant aesthetic and design choices by MASS MoCA personnel.”
A346 (emphasis added). And in creating a new version of the work partially cov-
ered with yellow tarps, the museum made yet another unauthorized derivative
work out of Training Ground in violation of Büchel’s rights. Finally, both the
52
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.
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
(617) 261-3000
February 27, 2009
53
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because it contains 13,984 words, excluding the parts of the brief ex-
empted 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 it was
prepared in a proportionally spaced typeface using Microsoft Word 2008 for Mac,
Version 12.1.0, in 14-point Times New Roman font.
/s/ GEORGE T. CONWAY III

George T. Conway III
Attorney for Defendant-Appellee
Christoph Büchel
February 27, 2009
CERTIFICATE OF SERVICE
08-2199 Massachusetts MoCA v. Büchel
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
(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
(617) 748-9057
on this 27th day of February 2009.
/s/ Natasha R. Monell

Natasha R. Monell, Esq.

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Case: 08-2199 Document: 00113948254 Page: 1 Date Filed: 03/02/2009 Entry ID: 5322416

United States Court of Appeals

MASSACHUSETTS MUSEUM OF CONTEMPORARY ART FOUNDATION, INC.,

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

BRIEF FOR DEFENDANT-APPELLANT

George T. Conway III (No. 88538)

Preliminary Statement .............................................................................................. 1

Statement of Jurisdiction .......................................................................................... 5

Statement of the Issues Presented............................................................................. 6

Statement of the Case ............................................................................................... 6

B. MASS MoCA recruits Büchel to create an

C. Büchel works on the installation in North

D. The museum claims to have run out of

E. "Plan B": MASS MoCA begins planning

F. Museum employees recognize the impropriety

G. The museum promotes and exhibits the

H. "An elephant behind a napkin": MASS MoCA

Summary of Argument ........................................................................................... 35

THE DISTRICT COURT ERRED IN DISMISSING

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

THE DISTRICT COURT ERRED IN DISMISSING BÜCHEL'S

A. Public Display .................................................................................... 50

B. Derivative Works ............................................................................... 52

Carter v. Helmsley-Spear, Inc.,

Carter v. Helmsley-Spear, Inc.,

Dodd v. United States,

Doyle v. Huntress, Inc.,

Flack v. Friends of Queen Catherine, Inc.,

Harper & Row Publishers, Inc. v. Nation Enters.,

Phillips v. Pembroke Real Estate, Inc.,

Playboy Enters., Inc. v. Dumas,

Velásquez-García v. Horizon Lines of Puerto Rico, Inc.,

17 U.S.C. § 101 ................................................................................................ passim

17 U.S.C. § 106A ............................................................................................. passim

17 U.S.C. § 106 ................................................................................................ passim

28 U.S.C. § 1291 ....................................................................................................... 5

28 U.S.C. § 1331 ....................................................................................................... 5

28 U.S.C. § 1332 ....................................................................................................... 5

H.R. REP. NO. 101-514 (1990),

RayMing Chang, Revisiting the Visual Artists Rights Act of

The central question on this appeal is whether a simple statute should be

101-514, at 5 (1990), reprinted in 1990 U.S.C.C.A.N. 6915, 6915. And so VARA

broadly prohibits the “distortion, mutilation, or other modification of [a visual art-

ist’s] work which would be prejudicial to his or her honor or reputation.” 17

actual or statutory damages under the compensatory remedy provisions of the

Copyright Act, id. § 504.

This case presents as clear an example of a VARA violation as one could

financial backing needed to complete the show as originally conceived. It also

mismanaged the project, causing extensive delay, and, by failing to follow

project was forty percent complete.

him, without interference, to finish the installation as originally and mutually

hibiting it over his repeated objections. The museum’s employees proceeded, as

A774-75, 1105, 1133.

And while it was modifying and distorting Büchel’s unfinished work,

the unfinished project” to a variety of visitors; even the Governor of Massachusetts

wink, wink, wrap show.” A1488.

The museum’s yellow-tarpaulin ruse was thus another violation of

In dismissing Büchel’s VARA damages counterclaim, the district court

animating the district court’s decision was an erroneous proposition of law—the

circumstance under which VARA moral rights vested in an unfinished work,

low, the judgment of the district court must be reversed.

STATEMENT OF THE ISSUES PRESENTED