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Mass MoCA's Brief in Opposition to Büchel's Motion for Summary Judgment

Mass MoCA's Brief in Opposition to Büchel's Motion for Summary Judgment



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Published by joegratz
In Mass MoCA v. Büchel, No. 3:07-cv-30089-MAP (D. Mass.). Downloaded from PACER.
In Mass MoCA v. Büchel, No. 3:07-cv-30089-MAP (D. Mass.). Downloaded from PACER.

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Published by: joegratz on Sep 22, 2007
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UNITED STATES DISTRICT COURTDISTRICT OF MASSACHUSETTS- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - xMASSACHUSETTS MUSEUM OFCONTEMPORARY ART FOUNDATION,INC.,Plaintiff,v.CHRISTOPH BÜCHEL,Defendant.::::::Civil ActionNo. 3:07-cv-30089-MAP
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
The Court's decision on the parties' cross-motions for summary judgment willdecide the fate of the many tons of materials and partial constructions assembled for the PlannedInstallation
in MASS MoCA's "Building 5" gallery space.If the Court rules in favor of MASS MoCA, the tarps will come down, and MASSMoCA finally be able to display the Materials in that gallery -- marked with a clear disclaimerthat they do not represent a finished work of art by an artist. (Whether the labeling furtherdescribes Büchel's relationship to those Materials, or indeed whether he is mentioned by name atall, is up to him. MASS MoCA invites his participation in fashioning that disclaimer, and wouldnot use his name in any public display of the Materials without his consent.)
Capitalized terms have the meanings ascribed to them in Plaintiff MASS MoCA'sMemorandum Of Law In Support Of Its Motion For Summary Judgment (Docket No. 29)(hereinafter "MASS MoCA's Memorandum" or "MASS MoCA's Mem.").
Case 3:07-cv-30089-MAP Document 40 Filed 09/13/2007 Page 1 of 10
2If the Court rules in favor of Büchel, the tarps will also come down, and MASSMoCA personnel will begin the laborious work of "taking down [the Planned Installation] andputting its components in a landfill." (Büchel's Mem.
at 9 n.3.)The fate of the Materials is the specific issue that the Court is asked to resolve onthese motions. Yet, Büchel suggests that the Court must also decide a number of other, far moregeneral questions to resolve that issue. It need not do so.The Court is not being asked, for example, to decide whether "someone other thanthe visual artist [has] the right to decide when that artist's work is finished." (Büchel's Mem. at1.) Here, there is no dispute that Büchel did not finish the Planned Installation. Instead, heabandoned the Materials, where they sit today in Building 5.Nor is the Court being asked to decide whether museums have an unlimited rightto modify unfinished works of visual art. (Büchel's Mem. at 1.) The undisputed facts of thiscase are that Büchel worked on the Planned Installation with MASS MoCA on and off for nearlya year; he relied on the work of MASS MoCA's laborers, technicians and contractors to assemblematerials and constructions for the Planned Installation; and MASS MoCA purchased andprocured the component materials for the Planned Installation. He expressly directed MASSMoCA personnel to perform important work on the Planned Installation on occasions when hewas absent from the museum. (By way of example only, Büchel chose to leave MASS MoCA just days before the two-story house that now sits in Building 5 was rigged and placed into thatgallery at enormous expense to the museum.
) The Visual Artists Rights Act of 1990 ("VARA")
"Büchel's Mem." refers to the Memorandum Of Law In Support Of DefendantChristoph Büchel's Motion For Summary Judgment (Docket No. 33).
See Second Declaration Of Joseph C. Thompson ("2d Thompson Decl.") ¶ 28,filed herewith.
Case 3:07-cv-30089-MAP Document 40 Filed 09/13/2007 Page 2 of 10
3does not grant visual artists who work in that fashion the right to abandon a project in mid-stream and then to block the museum from being able to even allow visitors into the museum'sgallery space because the artist claims to be unhappy with the work of those who assisted him onthe project. To so hold, this Court certainly does not need to conclude that every museum has anunlimited right to modify any unfinished work of visual art under any set of circumstances.Büchel raises the further specter that visual artists' "unfinished works couldforcibly be shown to their peers and critics." (Büchel's Mem. at 12.) But MASS MoCA is notproposing to burst into artists' garrets so that it may haul off their unfinished work to show in itsgalleries. Here, Büchel designed and then abandoned tons of materials and partial constructionsin MASS MoCA's Building 5, where they sit now. The implication that there is some threat of a"forcibl[e]" imposition on Büchel is absurd: MASS MoCA, not Büchel, has borne the burden of maintaining those Materials for months, both while eagerly trying to negotiate his return andsubsequently during the pendency of this case. Should artists everywhere fear for the privacy of their studios if the Court rules in MASS MoCA's favor? Of course not. This case involvesspecific facts: an artist agreed to collaborate on an exhibition with a public museum, spent twicethe agreed-upon budget, and then abandoned the project in that public museum's largest galleryspace because the museum would not guarantee him unlimited funding to finish the project.Those facts entitle MASS MoCA to the declaration it seeks, and bar Büchel's claims for relief.Accordingly, for the reasons stated below, and for the reasons stated in MASSMoCA's Memorandum, the Court should deny Büchel's Motion in its entirety, and dismiss each of Büchel's Counterclaims with prejudice as a matter of law.
Case 3:07-cv-30089-MAP Document 40 Filed 09/13/2007 Page 3 of 10

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