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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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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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Case 3:07-cv-30089-MAP

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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS ---------------------------------x MASSACHUSETTS MUSEUM OF CONTEMPORARY ART FOUNDATION, : INC., : Plaintiff, : v. : CHRISTOPH BÜCHEL, : Defendant. : ---------------------------------x

Civil Action No. 3:07-cv-30089-MAP

ORAL ARGUMENT REQUESTED

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.)

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.").

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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")

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

filed herewith. 2

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does not grant visual artists who work in that fashion the right to abandon a project in midstream 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.

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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.)
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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

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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

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.) 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
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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

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

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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.)

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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

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. To the extent Büchel hereafter might claim that he ever did own any part of the Materials, he long ago abandoned them. 8
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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.

"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

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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 Boston, Massachusetts
REQUEST FOR ORAL ARGUMENT Pursuant to Local Rule 7.1(D), MASS MoCA requests a hearing on Büchel's Motion. Such hearing could be held on September 21, 2007, at 2:00 p.m. (as directed in the Court's scheduling orders in this matter) or at such other time as is convenient to the Court.

Respectfully submitted, /s/ Kurt Wm. Hemr Kurt Wm. Hemr (BBO #638742) Paula-Marie Uscilla (BBO #660598) SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP One Beacon Street Boston, Massachusetts 02108 (617) 573-4800 khemr@skadden.com puscilla@skadden.com John L. Gardiner (admitted pro hac vice) Elizabeth A. Hellmann (admitted pro hac vice) SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP Four Times Square New York, New York 10036 (212) 735-3000 john.gardiner@skadden.com ehellman@skadden.com Counsel for Plaintiff Massachusetts Museum of Contemporary Art Foundation, Inc.

CERTIFICATE OF SERVICE I, Kurt Wm. Hemr, hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing ("NEF"), and paper copies will be sent to those indicated as non-registered participants on September 13, 2007. /s/ Kurt Wm. Hemr Kurt Wm. Hemr

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