Virginia Rutledge is an art historian and vice president and general counsel of the nonprofit organization Creative Commons. Prior to joining Creative Commons, she was a litigator at Cravath, Swaine & Moore LLP, where her practice included intellectual property, art and entertainment law. She possesses a rare understanding of art and all things IP, and we've covered some of the terrific events she's organized in these pages. Her recent column in Artforum, reproduced in its entirety below, is the article I've read that cuts to the heart of what happened and what actually is at stake in the sticky mess between Christoph Büchel and MassMOCA.
via Artforum (March 2008) :
Exterior of the Massachusetts Museum of Contemporary Art during the installation of the unfinished work Training Ground for Democracy by Christoph Büchel, North Adams, 2006. Photo: John Carli.
AT FIRST, IT LOOKED LIKE a terrific match. Swiss installation artist Christoph Büchel and Joseph Thompson, director of the Massachusetts Museum of Contemporary Art, had planned great things for Mass MoCA's vast Building 5, one of the world’s largest exhibition spaces for contemporary art. Büchel had conceived an artwork whose physical scale was in keeping with its imposing subject--loosely speaking, ideological warfare. Thompson was to deliver the tons (approximately 150) of material necessary to realize Büchel's vision, which included an entire disused cinema, a dive bar, a two-story Cape Cod home, and a reconstruction of one of the mock villages used by the US military to train troops destined for Iraq. Titled Training Ground for Democracy, the installation was first scheduled to open to the public in December 2006.
Unfortunately, the relationship between artist and museum soured soon after it began. Money was a big problem. The shopping was epic and way over budget, but Mass MoCA still couldn’t make Büchel happy. December passed, and Büchel refused to continue work on the project or to allow it to be shown. Curator Nato Thompson (no relation to Joseph), who brought the project to Mass MoCA, couldn’t keep the two together. Eventually, on May 22, 2007, the museum canceled the show.
This is not the first time that an art project has failed to come to fruition, or that an artist and would-be collaborator have found themselves at odds. But this was a spectacular failure, a debacle that ended in a lawsuit that pitted artist against institution in an unprecedented way. Shortly before canceling the exhibition, Mass MoCA asked the District Court of Massachusetts to declare that the museum was legally entitled to display Büchel's unfinished work. A few days later, it opened "Made at Mass MoCA," an exhibition intended to showcase its collaborative work with artists, with Büchel's unfinished work, mostly but not entirely obscured by tarps, on view, along with documentation relating to the project. The work had already been seen in progress and unshrouded by numerous visitors, and apparently it was Büchel's objection to this, and to certain aspects of Mass MoCA's work on the installation, that prompted the museum to launch defensive litigation—the first time a US art institution has ever sought legal sanction to present work against an artist's will. If Mass MoCA acted out of a siege mentality, it’s not difficult to understand why: Its prime gallery space had been held hostage for months. At one point the museum even went so far as to consider completing the installation itself for what would have been, in production manager Dante Birch's words, a "Mass MoCA interprets Büchel" show. Nevertheless, the lawsuit was an aggressive move. In response, Büchel argued that Mass MoCA had violated his right to control the work and its presentation and that his reputation had been harmed as a result, claims he based on his legal rights under copyright and the "moral rights" available under the Visual Artists Rights Act of 1990 (VARA), a limited extension of federal copyright law.
In the wake of appropriation art’s trials in the courts (most visibly featuring Jeff Koons, who famously lost one and recently won one), and as art licensing has become a profitable revenue stream for many artists (or, typically, their estates), copyright is a more familiar term than it used to be in the art world, even if its technicalities remain, well, technical. Yet a significant amount of art-world comment on Mass MoCA v. Büchel reveals some persistent misunderstandings about the difference between copyright and moral rights—and there is a significant difference, at least in the US. Put simply, the US Copyright Act protects the exclusive right (with some limitations) of the author of any creative work, visual or otherwise, to control the ability to copy, reproduce, distribute, display, or perform the work, or to make a derivative work. Moral rights, by contrast, which include rights protecting authors against the misattribution or unauthorized alteration of their work, are still largely foreign to US law, something that may well surprise creators, such as Büchel, raised under the European copyright regime. In passing VARA Congress specifically granted makers of only certain types of visual art some rights not available under US copyright generally (and thus not available to authors of texts, for example). These include the right to proper attribution; the right to prevent any intentional distortion, mutilation, or other modification of a work that would be prejudicial to the artist’s "honor or reputation"; and the right to prevent any destruction of a work of "recognized stature."
Because VARA had not been much tested in the courts, the biggest unsettled legal issue in the case seemed to many commentators to be whether VARA would apply to an unfinished work of art, as distinct from a preparatory work or a completed element of a larger work. It's an interesting question for law geeks, because copyright undoubtedly protects a draft of a work, as long as the draft is in a fixed, tangible form of expression--all hundred starts of your great American novel are protected, so long as they're not only in your head. Stand-alone parts of a work in progress are also protected. Each Burgher of Calais, whether created in Europe or America, would be entitled to an individual copyright. Büchel's argument that VARA should apply to his incomplete work was, however, thought by many to be a close call at best. With installation art in particular, where there is a definite whole in mind, it makes little sense to think of each phase of the assembly process, much less each object used in the installation, as independently copyrightable, which would be a prerequisite for affording the unfinished work the additional rights applicable under VARA.
The focus on VARA in fact tended to obscure the more fundamental copyright question here, which is perhaps ultimately of greater interest. Almost a century after the first readymade, the intellectual-property status of such work remains unclear. While one can have a copyright for an arrangement of objects, an artist who looks to the law to protect her interest in a plumbing fixture purchased from Home Depot and displayed in the context of an art fair will look in vain. Although the art world recognizes readymades as art, the law has not done so. Under existing interpretations of the law, only after sufficient "rectification," to use Duchamp's terminology, could a readymade become original enough for copyright to attach. One of the key takeaways here is that copyright and art simply don’t line up.
Does it matter? Yes: When an art institution can use copyright to argue against art, that’s something to think about. One of the few aspects of this case that has not received enough attention is Mass MoCA’s astonishing and troubling arguments regarding the status of Büchel's work as art. Lawyers frequently argue “in the alternative” when there is more than one viable legal theory that fits the facts; there’s nothing objectionable about that. But in addition to disputing the applicability of VARA to an unfinished work, Mass MoCA made two mutually exclusive arguments, each of which denied the validity of Büchel’s work. First, the museum argued that "the materials...do not contain sufficient original expression on the part of Büchel to be protected under the Copyright Act." Second, it argued that because of the collaborative nature of the project, Mass MoCA was a "joint owner of any copyright" in the work. Talk about love scorned: This kind of insult cannot easily be taken back (though the museum has tried).
The museum may well have been legally correct as regards the copyright status of most of the materials assembled for Training Ground. But that’s not the point: Prior to the litigation, no one at the institution asserted that Büchel’s work was not "art"; indeed, Büchel's lawyers produced evidence that the museum had promoted the unfinished work as a significant example of contemporary art as they invited critics (and potential donors) to come and see it. As for the joint-authorship argument, the notion offends the common art-world understanding of what it means when an institution offers to collaborate with an artist. Büchel put it succinctly in one of his final e-mails to Joseph Thompson when he asked: "Did you ever realize that your institution and your job is based on art production and that you destroy the condition of its existence, the artwork and artist concept, by doing all this?"
That's a bit dramatic, it has to be said. It may be true that, as Mass MoCA curator Susan Cross asserted in a January 2007 e-mail to Joe Thompson, “[t]he single author/artist idea is such an outdated notion, really. Artmaking is much more collaborative these days,” but if either of Mass MoCA's arguments had held sway with the court, the implications for future collaborations between other institutions and artists would have been serious. Though one senses the possibility for just such experiments in authorship growing all the time (avant-garde imperative or genuine social shift, who can say), recognition of artistic autonomy is the moral contract that Büchel and those who took his side in this matter so clearly felt was betrayed. But there’s an easy fix known to artists and their patrons for centuries: the contract. As it happened, the absence of a contract between Mass MoCA and Büchel was the thing that Judge Michael A. Ponsor, who ruled on the case, found more significant—and exasperating—than anything else. The failure of the parties to put their agreement to do the project into writing is particularly perplexing because contracts for big-budget and/or high-profile art projects are the norm at art institutions all around the globe. Joseph Thompson has been quoted as saying, “I don’t think a contract would have made any difference at all in this case,” and he told the Wall Street Journal Online that he does not intend to change his institution’s practice of avoiding formal contracts with artists, relying instead on “good will.” To be sure, prenups were once viewed as a corruption of the very ideals that ground marriage, and they obviously don’t guarantee a successful one. A good prenup, however, does provide an opportunity to uncover misplaced desires and misaligned ambitions.
As it turned out, on September 21, 2007, Judge Ponsor ruled that neither copyright nor VARA applied to this particular set of circumstances, in which the artist had forsworn the work and the collaborator had paid most of the bills. VARA’s application to unfinished works was thus left to be resolved another day. The judge also ruled that there was nothing to prevent Mass MoCA from exhibiting the materials assembled for the work, but made this ruling contingent on the exhibit’s being accompanied by a disclaimer explaining that it was an unfinished project that did not carry out the artist’s original intent. So Mass MoCA “won,” pending the artist’s planned appeal. Nevertheless, presumably realizing it had proceeded far enough down the path of undermining its own credibility, the museum began to dismantle the work almost immediately after the ruling. At least it’s not all landfill: Some of the smaller elements resurfaced in an installation Büchel showed this past December in Hauser & Wirth’s booth at Art Basel Miami Beach. Somewhat ironically, at the Maccarone gallery booth at the same fair, a selection of the artist’s e-mail correspondence with Mass MoCA served as a reminder of some necessary restraints on copyright. In presenting Mass MoCA’s copyrighted material (the e-mails), the artist relied on First Amendment and fair-use rights—over the museum’s objections, which were, quite rightly, overturned in court in a separate proceeding last August.
Meanwhile, this very public divorce has highlighted the disparity between the authorship and artistic rights protected by law and the deference to aesthetic autonomy and the artist’s vision often presumed to be operative in the art world. It also highlights the reality that the contemporary art patronage system is rather more complicated than selling the Pope on a grand idea. The Mass MoCA–Büchel partnership included lots of expected advantages for all involved. The problem was that no one was clear on who paid the bills, and who took out the trash. (Joe to Christoph, early in the project: “I’m terrified about the costs, by the way. So far, we have zero in sponsorships, nada, . . . if you have any ideas for that, let me know, as I really have to get to work on that right away,” Christoph to Joe, toward its end: “The artist will not accept any orders and any more pressure or compromises as to how things have to be done from the museum director or museum’s technicians. The artist demands full autonomy with regard to his artwork.”)
The major lesson of the case, then, is not that the scope of VARA needs to be clarified or possibly enlarged. The truly challenging questions here are the ones about values: What power should artists have to control the presentation and disposition of their work, and what obligations are appropriate to impose? What are the responsibilities of art institutions to protect individual artistic vision while also maintaining their own cultural authority? And most importantly, who decides? Judge Ponsor made his opinion on this point very clear when he observed: “This controversy doesn’t belong here. This is a passionate disagreement about aesthetic ideology and the rights of an artist and the process of creation that is extremely ill-suited to the courtroom.” In other words, the judge advises, work your issues out—at home.
Virginia Rutledge is an art historian and vice president and general counsel of the nonprofit organization Creative Commons.