Buchel Brief

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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

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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

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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

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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

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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

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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, noneconomic and personal nature,” rights that “exist independently of an artist’s copyright 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 artist’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, recruited a renowned Swiss artist, Christoph Büchel, to create a massive and ambitious work in the museum’s cavernous, football-field-long Building 5 in North Ad-

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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 embarked upon what its internal emails called “Plan B”: an intentional scheme to violate Büchel’s moral rights by finishing his work without his involvement and exhibiting 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 directly contradicted his expressed intent. The museum’s employees fully under-

1

Citations to the Joint Appendix take the form “A___”; citations to the Addendum to this brief take the form “Add. ___.” 2

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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 property 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 violated VARA. Then the museum took things one disingenuous step further. The day after 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

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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 (supposedly) 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 misrepresents, 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

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better off with the tarps, and one likening the work to excrement. A1127, 148788. 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 museum 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 below, 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.

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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 complaint 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 counterclaim 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

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and pass through” it with the yellow tarps. A42. The third, fourth and fifth counterclaims 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 proceedings 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 respective 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. 819. Judge Ponsor’s oral ruling addressed only MASS MoCA’s claim for declaratory 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

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with the exhibition” that would “inform anyone viewing the exhibit that the materials 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 reported 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 addressed 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 ‘attribution’ or ‘integrity,’ as those terms are conceived by VARA, is implicated, let alone violated in these circumstances,” and that “the Copyright Act provides no mechanism 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 Exhibit, BOSTON GLOBE, Sept. 26, 2007, at A1, available at http://tinyurl.com/bgl926. 8

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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 provocative 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 environments are huge in scale,” “like bristling three-dimensional history paintings,” yet are “so obsessively detailed that they might best be described as panoramic collage.” 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

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space the size of a football field. A879, 916-17, 1345. In response to the museum’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 Training 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 oneto-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 attention to detail on an almost microscopic level.” A1270. MASS MoCA described Training Ground as a “behemoth project” and a “mega-project[]” that would necessarily “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 collective 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-

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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 immigrants, 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

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MASS MoCA approved Büchel’s model for Training Ground along with a set of pictures he provided. The museum agreed to provide logistical and technical 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 museum 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 telling 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 allow 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 proposal confidential: … I’ve not yet met an artist who can’t spend multiples of the

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original budget, so I like to control that process very tightly….” A574. The museum 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 installation 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 airplane 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

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the same time, even though the project had only begun, the museum began claiming that it was over budget. In another email, Thompson for the first time identified 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 project’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 Thompson and Büchel, when, as Thompson put it, the museum began “making a few decisions in [Büchel’s] stead.” A1131. As Joe Thompson put it in an internal museum 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

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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 organize several of the key elements of the installation. MASS MoCA did not even assign 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 acquired on its so-called scavenger hunt was unusable. A705. The inevitable result of the museum’s logistical and organizational failures 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 repeatedly 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 exasperated Büchel firmly insisted that the museum postpone the show. A655. And he 15

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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 predictions 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 managerial 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, admitting that the installation was “an order-of-magnitude more complex than anything” 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 preparing galleries for Christoph Büchel’s vast installation, the exhibition’s official opening date – tentatively set for December 16th – will be rescheduled…. “While MASS MoCA is known for undertaking intricate and dramatically-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

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cinder block, an immaculately detailed cinema, and thousands of specific found objects, some of which weigh over 20 tons” said MASS MoCA Director Joseph Thompson. “Because of these logistical challenges 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 assistants worked day and night in North Adams—ten, twelve or more hours a day, including 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 Compound” (including a hut and a “spiderhole” recreating the location where the military 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

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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 follow 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 museum 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 institution and work with people that think they know my art better than [I] do.” 18

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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 artist’s wish list for Christmas, eliminating necessary and key elements that were always listed as part of the artwork from the beginning.” A789. In short, the museum 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 cancelled 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 behind 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

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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, schedule- 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 returns”; 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

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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 installation 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 labor, time and money.” A722-23. E.

“Plan B”: MASS MoCA begins planning to exhibit 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 informed 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 incompetent),” 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 decision to show the work as a failed work-in-progress.” A725. The email acknowledged that “the exhibition in [its] partial state of completion … will not be a Chris-

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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 finished 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 project 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 museum’s files reflect that one object of this “Plan B” was to use the threat of exhibiting 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, 113334. 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

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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 result, 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 layout of the [m]aterials, and with respect to the selection and procurement of pre-existing buildings and vehicles that have been modified and incorporated into the [m]aterials. A346 (emphasis added). 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-

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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” because of the museum’s failure to follow directions, A995, and the museum specifically understood it had to “take [it] down” accordingly, A1025. The bomb carousel was never taken down. A929. Büchel told the museum to “wait” and not “attach … 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 distortions 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 artist, 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

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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 museum 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 violate 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 issues. … 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 reviewed 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 property 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 decisions.… 25

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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 finished and thus not art, then if we show it to people as is—is it Buchel’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.… A1105 (emphasis added). G.

The museum promotes and exhibits the unfinished 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 unlike “[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

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the century.” A1108, A1244. Thompson also told the museum’s outside publicrelations 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 museum’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 unfinished 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 officials [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.

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A795 (emphasis added). The news articles made clear that quite a number of journalists 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 objected 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 distorted and unfinished installation, my source material and project ideas.” A811. The museum’s conduct was “damag[ing] my art, intellectual property and reputation,” 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 totally 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 installation? 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’”), available 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

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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 access violated VARA. A829. “[G]iven the enormous publicity the project has already 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-fieldlength Building 5 gallery space, the museum would present “Made at MASS MoCA,” which the museum claimed was “a documentary project exploring the issues raised in the course of complex collaborative projects between artists and institutions.” A834, A1492. The press release mentioned Büchel by name repeatedly, and simultaneously announced the filing of this lawsuit against him. A834, A1492. 29

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“Made at MASS MoCA” was a massive publicity stunt designed to embarrass 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 selfserving 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 massive 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, visitors 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 vehicles, and thousands of found objects.” A835, 1493.

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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 installation. 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 “incomplete” state. Mass MoCA is hiding an elephant behind a napkin. So this is a wink, wink, wrap show.

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A1488 (emphasis added). Another visitor described how “very little visual obstruction” 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 artwork. … 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 provoke 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 unfinished 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 illuminating experience.

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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 misrepresents 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 going 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 antiBüchel 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 ….

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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 Commentary Magazine, Michael J. Lewis observed, “Having inspected it Thursday afternoon, I am not sure that it suffers from being enveiled.…” 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).

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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 prejudicial 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 copyright 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

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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 judgment as a matter of law.” FED. R. CIV. P. 56(c). “An issue is genuine ‘if the evidence 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 judgment 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 “exist independently of an artist’s copyright in his or her work.” Carter v. Helmsley-

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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 therefore 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), reprinted 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

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works of art they create, and that they are not identified with works created by others. The latter allows artists to protect their works against modifications and destructions that are prejudicial to their honor or reputations.” H.R. REP. NO. 101514, 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 Carter, 71 F.3d at 81). Accordingly, in pertinent part, VARA provides quite simply and straightforwardly 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

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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 presents 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 “unfinished 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 unfinished, 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.

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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 “applies 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 intentionally 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 limits 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 protected 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 versions, each version constitutes a separate work. Id. Section 101 also establishes when a work is “fixed” for purposes of the definition of “created” as well as the rest of the statute: 40

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A work is “fixed” in a tangible medium of expression when its embodiment 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 exists 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 explicitly, that the statute protects unfinished works. Carter v. Helmsley-Spear involved 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

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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 alleged 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 intermediate work, is eligible for VARA protection.” Id. at 532. The court squarely rejected 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 under 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 ‘preliminary’ 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 individual 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) (“Contrary 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; ‘preliminary’ 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 decidedly 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)

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In short, when Joe Thompson brought in friends, dignitaries, and journalists 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 exhibiting 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 modification 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 indisputably 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 unprotected 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

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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 December 2006; and then throughout early 2007, it repeatedly exhibited the installation, 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 aesthetic and design choices. A511, 1255 (emphasis added); see also A346, 506, 776, 1133, 1250. And the museum’s continued unauthorized work, indeed, contradicted 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” because “[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

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that was so as to the museum’s work in 2006, but that simply was not what happened in 2007. Throughout early 2007, the museum was, as noted above, effectively 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 “intellectual 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

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to see it. The district court’s response here—a conclusory statement that “an installation covered so as not to be visible can hardly be described as having been ‘exhibited,’ while distorted or otherwise,” A1736—again entirely, and inexplicably, ignores the undisputed record evidence. There are photographs in the record that show how the installation remained visible in substantial part despite the yellow tarps. A934, 1095-98. And the record is uncontradicted that visitors looked behind the tarps. Given the enormous 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, because “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 containers, … 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

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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 artist’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

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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 professional reputation, because peers and critics would erroneously consider the unfinished 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 preparation, and its grooming for public dissemination is a crucial one …,” the Copyright 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 distribute 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”).

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The record evidence, both expert and fact, makes clear that the presentation 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. Speaking as someone who has commissioned or sponsored many comparable 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 institution, 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 distortion 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

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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 “display” 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

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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 copyright 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 substantial 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-

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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 judgment 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 conclusion. 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 dispute 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 acknowledged this fact—it told the district court in August 2007 that the installation “reflect[ed] significant aesthetic and design choices by MASS MoCA personnel.” A346 (emphasis added). And in creating a new version of the work partially covered 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

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tarp-covered and uncovered derivative versions of the installation constituted unauthorized 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 Boston, Massachusetts 02111 (617) 261-3000 February 27, 2009

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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 exempted 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

Case: 08-2199

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Page: 60

Date Filed: 03/02/2009

Entry ID: 5322416

CERTIFICATE OF SERVICE 08-2199 Massachusetts MoCA v. Büchel I hereby certify that two paper copies of this Brief for DefendantAppellant 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 Boston, Massachusetts 02108 (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 Boston, Massachusetts 02210 (617) 748-9057 on this 27th day of February 2009. /s/ Natasha R. Monell Natasha R. Monell, Esq.