Case 3:07-cv-30089-MAP Document 40 Filed 09/13/2007 Page 1 of 10

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

---------------------------------x
MASSACHUSETTS MUSEUM OF
CONTEMPORARY ART FOUNDATION, :
INC.,
:
Plaintiff, Civil Action
: No. 3:07-cv-30089-MAP
v.
:
CHRISTOPH BÜCHEL, ORAL ARGUMENT
: REQUESTED
Defendant. :
---------------------------------x

PLAINTIFF MASS MoCA'S MEMORANDUM

OF LAW IN OPPOSITION TO DEFENDANT
CHRISTOPH BÜCHEL'S MOTION FOR SUMMARY JUDGMENT

The Court's decision on the parties' cross-motions for summary judgment will

decide the fate of the many tons of materials and partial constructions assembled for the Planned

Installation1 in MASS MoCA's "Building 5" gallery space.

If the Court rules in favor of MASS MoCA, the tarps will come down, and MASS

MoCA finally be able to display the Materials in that gallery -- marked with a clear disclaimer

that they do not represent a finished work of art by an artist. (Whether the labeling further

describes Büchel's relationship to those Materials, or indeed whether he is mentioned by name at

all, is up to him. MASS MoCA invites his participation in fashioning that disclaimer, and would

not use his name in any public display of the Materials without his consent.)

1
Capitalized terms have the meanings ascribed to them in Plaintiff MASS MoCA's
Memorandum 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 2 of 10

If the Court rules in favor of Büchel, the tarps will also come down, and MASS

MoCA personnel will begin the laborious work of "taking down [the Planned Installation] and

putting its components in a landfill." (Büchel's Mem.2 at 9 n.3.)

The fate of the Materials is the specific issue that the Court is asked to resolve on

these motions. Yet, Büchel suggests that the Court must also decide a number of other, far more

general questions to resolve that issue. It need not do so.

The Court is not being asked, for example, to decide whether "someone other than

the visual artist [has] the right to decide when that artist's work is finished." (Büchel's Mem. at

1.) Here, there is no dispute that Büchel did not finish the Planned Installation. Instead, he

abandoned the Materials, where they sit today in Building 5.

Nor is the Court being asked to decide whether museums have an unlimited right

to modify unfinished works of visual art. (Büchel's Mem. at 1.) The undisputed facts of this

case are that Büchel worked on the Planned Installation with MASS MoCA on and off for nearly

a year; he relied on the work of MASS MoCA's laborers, technicians and contractors to assemble

materials and constructions for the Planned Installation; and MASS MoCA purchased and

procured the component materials for the Planned Installation. He expressly directed MASS

MoCA personnel to perform important work on the Planned Installation on occasions when he

was 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 that

gallery at enormous expense to the museum.3) The Visual Artists Rights Act of 1990 ("VARA")

2
"Büchel's Mem." refers to the Memorandum Of Law In Support Of Defendant
Christoph Büchel's Motion For Summary Judgment (Docket No. 33).
3
See Second Declaration Of Joseph C. Thompson ("2d Thompson Decl.") ¶ 28,
filed herewith.

2
 Case 3:07-cv-30089-MAP Document 40 Filed 09/13/2007 Page 3 of 10

does 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's

gallery space because the artist claims to be unhappy with the work of those who assisted him on

the project. To so hold, this Court certainly does not need to conclude that every museum has an

unlimited right to modify any unfinished work of visual art under any set of circumstances.

Büchel raises the further specter that visual artists' "unfinished works could

forcibly be shown to their peers and critics." (Büchel's Mem. at 12.) But MASS MoCA is not

proposing to burst into artists' garrets so that it may haul off their unfinished work to show in its

galleries. Here, Büchel designed and then abandoned tons of materials and partial constructions

in 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 and

subsequently 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 involves

specific facts: an artist agreed to collaborate on an exhibition with a public museum, spent twice

the agreed-upon budget, and then abandoned the project in that public museum's largest gallery

space 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 MASS

MoCA'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.

3
 Case 3:07-cv-30089-MAP Document 40 Filed 09/13/2007 Page 4 of 10

Statement Of Disputed Facts

MASS MoCA respectfully refers the Court to its Statement Of Disputed Facts In

Opposition To Defendant's Local Rule 56.1 Statement Of Undisputed Material Facts, which is

filed herewith.

Argument4

I. VARA DOES NOT BAR THE DISPLAY OF UNFINISHED WORK

VARA does not bar the display of unfinished work. (See MASS MoCA's Mem. at

9-11 (citing cases and authorities).) Büchel suggests that "[t]o display a work of art that the artist

does not endorse as finished and that is different from that which he intended to display … is a

misleading account of his artwork." (Büchel's Mem. at 11.) But a hypothetical artwork that an

artist "intended to display," but has not yet created, is not a work entitled to protection both under

the Copyright Act and VARA: "Copyright protection subsists, in accordance with this title, in

original works of authorship fixed in any tangible medium of expression." 17 U.S.C. § 102(a). It

does not protect hypothetical work that has not yet been (and may never be) fully created.

Both Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303 (S.D.N.Y. 1994), rev'd in part

on other grounds, 71 F.3d 77 (2d Cir. 1995), cert. denied, 517 U.S. 1208, 116 S. Ct. 1824 (1996) and

Flack v. Friends of Queen Catherine Inc., 139 F. Supp. 2d 526, 535 (S.D.N.Y. 2001), on which

Büchel relies (see Büchel's Mem. at 10-11), have applied that analysis to hold that artists have no

right under VARA to finish an incomplete work: "VARA most decidedly does not cover works

that do not yet exist." Flack, 139 F. Supp. 2d at 535. (See MASS MoCA's Mem. at 9-11.)

4
For the reasons stated in the "Preliminary Statement Regarding Ownership Of
Copyright" in MASS MoCA's Memorandum (at pp. 4-6), to establish a right to relief on any of
his Counterclaims, Büchel would have to show as a matter of law and undisputed fact that he is
the sole owner of any copyright in the Materials, and not a co-owner with MASS MoCA.
Whether Büchel is "sole author" of the Materials is not a matter of undisputed fact. Accordingly,
he is entitled to no relief on his Motion.

4
 Case 3:07-cv-30089-MAP Document 40 Filed 09/13/2007 Page 5 of 10

Even assuming, arguendo, that unfinished work could be considered "distorted"

for purposes of VARA, VARA would not bar the display of that work, but would at most only

bar MASS MoCA from attributing the work to Büchel, see 17 U.S.C. § 106A(a)(2), which

MASS MoCA would not do in any public display of the Materials without Büchel's consent.

The possibility that third parties may be informed in some other fashion that the materials and

partial constructions were created with Büchel's involvement in anticipation of the Planned

Installation does not, under VARA, give Büchel the right to bar their display.

Finally, Büchel offers no evidence here that display of the Materials with an

express disclaimer stating that they are not a finished work of art would prejudice his honor or

reputation, other than his self-serving assertion that it would. Even Büchel's chosen expert,

Robert Storr,5 is, at most, willing to opine expressly that the display of unfinished work "may be

prejudicial" to that artist. (Storr Aff. ¶ 19 (Docket No. 36).)6 (Additionally, Mr. Storr's affidavit

5
Significantly, Mr. Storr is the curator of the 2007 Venice Bienniale exhibition.
(Storr Aff. ¶ 3.) That exhibition of contemporary art, which is now running, includes a newly
fabricated work based on a never-executed conception by the Cuban-American artist Felix
Gonzalez-Torres, who died in 1996. It was built by others to be shown at the Bienniale. (See
Randy Kennedy, With a wink, Felix-Gonzalez-Torres slips into Venice, Int'l Herald Tribune,
June 6, 2007.) That the Bienniale exhibition includes that work does not suggest that Mr. Storr's
curatorial judgment should be called into question; rather, it serves to show that the display of
unfinished work involves complex questions of curatorial judgment, rather than legal questions
(as Büchel would interpret Mr. Storr's affidavit to suggest). (The tension between Mr. Storr's
affidavit and the exhibition of that work at the Bienniale was pointed out by an Internet
commentator on art who read the Storr affidavit after it was published on the Internet with the
apparent cooperation of Büchel's counsel.)
6
Büchel also refers to two art critics who have commented on the tarped Materials.
(Büchel's Mem. at 13.) One of those critics, Ken Johnson of the Boston Globe, simply
hypothesized that display of the Materials would affect Büchel's reputation, but did not suggest
that he or any other reasonable person would judge Büchel on that basis. The other critic,
Michael J. Lewis (a professor of art at Williams College, quoted by Mr. Johnson), stated that he
expected that the Planned Installation would be "a rather simplistic exercise in political art," but
there is no reason to think that Prof. Lewis came to that conclusion because the Planned
Installation was unfinished.

5
 Case 3:07-cv-30089-MAP Document 40 Filed 09/13/2007 Page 6 of 10

does not consider whether the concerns he raises may be addressed by clearly labeling displays

of unfinished work as such, which MASS MoCA intends to do with respect to the Materials if it

is permitted to display them.)

II. VARA DOES NOT REGULATE THE PROCESS BY WHICH ARTISTS

WORK WITH ASSISTANTS AND OTHERS TO EXECUTE THEIR IDEAS

In his Memorandum, Büchel argues that VARA supersedes any common-law

arrangements by which an artist may work with assistants or others to cause a work of visual art to

be "'fixed' in a tangible medium of expression … "under [his] authority" as an author. 17 U.S.C.

§ 101 (definition of "fixed"). Under Büchel's interpretation of VARA, to enlist the help of an

assistant or another person in connection with a work of visual art, the artist must provide that

person with a signed waiver meeting the demanding requirements of VARA with respect to each

and every action that person is to perform. (Cf. Büchel Aff. ¶ 21 (alleging that he never provided a

VARA waiver).) Büchel further contends that if such person intentionally modifies the work

without a signed VARA waiver in hand, he will be liable to the artist "in the amount of $150,000 for

each [such] willful violation of VARA." (Büchel's Mem. at 18.) That is an extreme, illogical and

untenable reading of VARA: MASS MoCA is aware of no authority -- and Büchel cites no

authority -- which interprets VARA to impose such documentation requirements and liability

standards on the process by which works of visual art are created.7

Indeed, Büchel's reading of VARA is barred by applicable First Circuit and Supreme

Court precedents that must direct this Court's analysis. In Phillips v. Pembroke Real Estate, Inc., the

7
Büchel attempts to temper this extreme interpretation by arguing that MASS
MoCA performed work "without his approval." (Büchel's Mem., at 14.) But if Büchel's
contention that VARA regulates his dealings with his assistants and MASS MoCA personnel
were correct, the fact that Büchel orally approved particular work or otherwise conveyed
instructions by any means other than a signed waiver satisfying VARA's demanding
requirements would not protect those persons from liability.

6
 Case 3:07-cv-30089-MAP Document 40 Filed 09/13/2007 Page 7 of 10

First Circuit noted that its interpretation of VARA had to be guided by the Supreme Court's

observation that "statutes which invade the common law are to be read with a presumption favoring

the retention of long-established and familiar principles." 459 F.3d 128, 142 (1st Cir. 2006) (quoting

U.S. v. Texas, 507 U.S. 529, 534, 113 S. Ct. 1631, 1634 (1993)). Accordingly, "[i]n order to

abrogate a common law principle, the statute must speak directly to the question addressed by the

common law." Id. Contrary to Büchel's contention, nothing in VARA speaks "directly" to the

common-law arrangements by which artists employ assistants or work with others to create works

of visual art. Nor does any part of the legislative history of VARA address those "long-established

and familiar principles." Id. It would be utterly unreasonable and inconsistent with these

precedents to read VARA as superseding common law by imposing VARA's demanding

documentation requirement -- and imposition of damages for failure to comply with those

requirements -- on the physical process by which works of visual art are created.

In any event, even if VARA were applicable to the process by which Büchel worked

with MASS MoCA to assemble and construct the Materials (and it is not), Büchel has made no

showing that any work was done contrary to his instructions. As set forth in the Second Declaration

Of Joseph C. Thompson, filed herewith, MASS MoCA's work on the Planned Installation following

Büchel's December 17, 2006 departure from MASS MoCA was done in accordance with Büchel's

instructions. Many of Büchel's criticisms of that work are demonstrably erroneous: for example,

Büchel's claim that MASS MoCA built a cinderblock wall based on an outdated drawing is refuted

by the updated drawing which was the actual basis for MASS MoCA's construction. (2d Thompson

Decl. ¶ 32 & Exs. 13-15 thereto.) Büchel's suggestion that the "spiderhole" element was never

meant to be raised is refuted by the work performed on the understructure of that element. (Id.¶ 61.)

7
 Case 3:07-cv-30089-MAP Document 40 Filed 09/13/2007 Page 8 of 10

Other criticisms simply reflect the fact that Büchel never returned to refine and finish the work. (Id.

¶¶ 64-65, 68, 73-74, 77, 81, 83.)

Further, it is undisputed that MASS MoCA at all times was attempting to proceed in

a way that it thought that Büchel would have preferred, in an effort to hasten the date by which the

Planned Installation could open after Büchel returned to finish the work. As Büchel concedes,

MASS MoCA was motivated solely by "its zeal to show 'Training Ground for Democracy'"

(Büchel's Mem. at 2), and not by some malicious desire to sabotage the Planned Installation or to

adapt it to its own purposes. Accordingly, even assuming that VARA were applicable to the

process of creating visual art and that MASS MoCA unintentionally deviated from Büchel's plan,

that would not bar the display of the work. At most, it would bar MASS MoCA from attributing

the work to Büchel, see 17 U.S.C. § 106A(a)(2), which it would not do in any public display of

the Materials without Büchel's consent in any event.8

III. BÜCHEL'S OTHER CONTENTIONS ARE MERITLESS

A. MASS MoCA Is Entitled To Display The Materials Under § 109(c)

Büchel asserts that MASS MoCA is not entitled to invoke the § 109(c) right of

display, for two purported reasons, neither of which withstands analysis. (Büchel's Mem. at 18-19.)

First, Büchel's contention that MASS MoCA does not own the Materials

themselves -- as distinguished from any copyright or other intellectual property rights therein -- is

unfounded: it is beyond dispute that MASS MoCA purchased at its own expense or otherwise

procured the Materials, and continues to possess them.9

8
Again, Büchel offers no evidence that any work done by MASS MoCA with
respect to the Materials would cause display of those Materials to prejudice his honor or
reputation, other than his self-serving assertion that it would.
9
To the extent Büchel hereafter might claim that he ever did own any part of the
Materials, he long ago abandoned them.
8
 Case 3:07-cv-30089-MAP Document 40 Filed 09/13/2007 Page 9 of 10

Second, Büchel's argument that the Materials are not "lawfully made" simply seeks

to import his VARA arguments into § 109(c), and should be rejected for the reasons explained

above. MASS MoCA is not aware of any authority -- and Büchel cites no authority -- that interprets

the term "lawfully made" as potentially excluding original works from the ambit of "lawfully made"

copies. Indeed, that reading of § 109(c) would entirely undermine the settled expectations that this

section is intended to create. 10 Under Büchel's novel interpretation, an artist could sell the original

of an artwork to a purchaser, and then later inform the purchaser that the work was not "lawfully

made" and could not be displayed because -- unbeknownst to the purchaser -- the artist's assistant

had performed certain work in the course of making the artwork without having first been provided

with a signed VARA waiver. The Court should reject that unprecedented and unusual reading of

§ 109(c).

B. Büchel Has No "Derivative Work" Claim

A "derivative work" is a work that "recast[s], transform[s], or adapt[s]" a prior work

to create a new work. 17 U.S.C. § 101. MASS MoCA's work with respect to the Materials did not

"recast[], transform[], or adapt[]" any pre-existing work by Büchel. Indeed, the Materials would not

exist in the first place but for the work performed by MASS MoCA personnel pursuant to Büchel's

directions. MASS MoCA is unaware of any authority -- and Büchel cites no authority -- holding

that work performed by an assistant or other person in an attempt to implement the artist's design for

a work of visual art somehow creates a derivative work.

10
"Assuming, for example, that a painter has sold the only copy of an original work
of art without restrictions, would it be possible for him to restrain the new owner from displaying
it publicly in galleries, shop windows, on a projector, or on television? Section 109(b)
[subsequently redesignated as § 109(c)] adopts the general principle that the lawful owner of a
copy of a work should be able to put his copy on public display without the consent of the
copyright owner." H.R. Rep. 94-1476, at 79 (Sept. 3, 1976), reprinted at 1976 U.S.C.C.A.N.
5659, 5693 (conference report on 1976 revision to Copyright Act).

9
 Case 3:07-cv-30089-MAP Document 40 Filed 09/13/2007 Page 10 of 10

Nor did MASS MoCA's use of tarps and other view-restricting measures "recast[],

transform[], or adapt[]" the Materials. A change in the appearance of a copyrighted work that is

devoid of any creative content -- here, simply covering the work up -- does not result in the creation

of a derivative work.

(To avoid repetition, MASS MoCA respectfully refers the Court to the further

discussion of this point at pp. 18-19 of its Memorandum, which it hereby incorporates by reference.)

Conclusion

For the foregoing reasons, the Court should deny Büchel's Motion in its entirety, and

dismiss each of Büchel's Counterclaims with prejudice as a matter of law.

Dated: September 13, 2007 Respectfully submitted,

Boston, Massachusetts
/s/ Kurt Wm. Hemr
REQUEST FOR ORAL ARGUMENT Kurt Wm. Hemr (BBO #638742)
Paula-Marie Uscilla (BBO #660598)
Pursuant to Local Rule 7.1(D), MASS SKADDEN, ARPS, SLATE,
MoCA requests a hearing on Büchel's Motion. MEAGHER & FLOM LLP
Such hearing could be held on September 21, 2007,
at 2:00 p.m. (as directed in the Court's scheduling One Beacon Street
orders in this matter) or at such other time as is Boston, Massachusetts 02108
convenient to the Court. (617) 573-4800
khemr@skadden.com
puscilla@skadden.com

CERTIFICATE OF SERVICE John L. Gardiner (admitted pro hac vice)

Elizabeth A. Hellmann (admitted pro hac vice)
I, Kurt Wm. Hemr, hereby certify that this SKADDEN, ARPS, SLATE,
document filed through the ECF system will be sent MEAGHER & FLOM LLP
electronically to the registered participants as
identified on the Notice of Electronic Filing Four Times Square
("NEF"), and paper copies will be sent to those New York, New York 10036
indicated as non-registered participants on (212) 735-3000
September 13, 2007. john.gardiner@skadden.com
ehellman@skadden.com
/s/ Kurt Wm. Hemr
Kurt Wm. Hemr
Counsel for Plaintiff
Massachusetts Museum of Contemporary
Art Foundation, Inc.

10