Mass Moca Brief

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UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT _______ No. 08-2199 _______ 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 OF PLAINTIFF-APPELLEE MASSACHUSETTS MUSEUM OF CONTEMPORARY ART FOUNDATION, INC. _______ Dated: April 2, 2009 Of Counsel: John L. Gardiner Elizabeth A. Hellmann SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP Four Times Square New York, New York 10036 (212) 735-3000

Kurt Wm. Hemr Lindsay R. Dickerson SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP One Beacon Street Boston, Massachusetts 02108 (617) 573-4800 Counsel for Plaintiff-Appellee Massachusetts Museum of Contemporary Art Foundation, Inc.

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CORPORATE DISCLOSURE STATEMENT PURSUANT TO FEDERAL RULE OF APPELLATE PROCEDURE 26.1 Massachusetts Museum of Contemporary Art Foundation, Inc. is a non-profit corporation. It has no parent corporation and no publicly-held corporation owns 10% or more of its stock.

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TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................iv PRELIMINARY STATEMENT.............................................................................1 STATEMENT OF FACTS .....................................................................................4 1.

The Parties ..........................................................................................4

2.

In 2005-2006, MASS MoCA And Büchel Enter Into Preliminary Discussions Regarding An Installation For MASS MoCA's Premier Art Space -- Building 5 .......5

3.

In August 2006, MASS MoCA And Büchel Begin Work On The Planned Installation Despite Büchel's Short Stay In North Adams ......6

4.

After Büchel Leaves North Adams In August 2006, MASS MoCA Continues To Work On The Planned Installation In Accordance With Büchel's Instructions ........................9

5.

Büchel Belatedly Returns To North Adams To Work On The Planned Installation And Provides Corrective Instructions When He Changes His Mind Or Is Not Satisfied With The Work Performed..................11

6.

In December 2006, Büchel Goes On Strike And Demands That MASS MoCA Delay The Opening Of The Planned Installation And Accept Sole Responsibility For The Delay .............12

7.

Büchel Meets With Visitors To The Planned Installation During His Stay In North Adams....................................13

8.

Büchel Prepares To Leave North Adams And Provides Detailed Instructions For Work To Be Performed By MASS MoCA In His Absence ...............15

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9.

Büchel Declines The Opportunity To Be Present For The Installation Of A Major Component Of The Planned Installation -- An Entire House -- And Instead Entrusts The Task To MASS MoCA Personnel ....................16

10.

Büchel Understands And Expects That MASS MoCA Will Work On The Planned Installation In His Absence ...................19

11.

Büchel Delivers An Ultimatum; MASS MoCA Tries In Vain To Negotiate His Return ......................20

12.

In Büchel's Absence, MASS MoCA Personnel Continue Working Pursuant To His Pre-Departure Instructions In Anticipation Of His Hoped-For Return......................24

13.

MASS MoCA Cancels The Planned Installation And Announces The Opening Of A New Exhibit, "Made At MASS MoCA" .............28

14.

The District Court Finds For MASS MoCA; MASS MoCA Chooses To Remove The Planned Installation...........29

SUMMARY OF THE ARGUMENT ....................................................................32 ARGUMENT........................................................................................................34 I.

VARA CONFERS TWO DEFINED "MORAL RIGHTS" ON VISUAL ARTISTS.............................................34

II.

MASS MOCA DID NOT VIOLATE BÜCHEL'S RIGHTS OF INTEGRITY OR ATTRIBUTION UNDER VARA ..............36 A.

The District Court Expressly Assumed That VARA Applied To The Planned Installation.....................................36

B.

There Was No Violation Of Büchel's Right Of Integrity...................39

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C. III.

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1.

Work Performed On The Planned Installation By MASS MoCA Personnel Was Not A Distortion, Mutilation Or Modification And Was Not Prejudicial To Büchel's Honor Or Reputation...40

2.

Covering The Planned Installation With Tarpaulins And Other View Restricting Measures Was Not A Distortion, Mutilation Or Modification And Was Not Prejudicial To Büchel's Honor Or Reputation...47

3.

Any Display Of The Unfinished Planned Installation Was Not A Distortion, Mutilation Or Modification And Was Not Prejudicial To Büchel's Honor Or Reputation...50

There Was No Violation Of Büchel's Right Of Attribution ...............52

MASS MOCA DID NOT VIOLATE ANY OF BÜCHEL'S RIGHTS UNDER THE COPYRIGHT ACT TO DISPLAY THE UNFINISHED WORK OR TO CREATE DERIVATIVE WORKS ...........55 A.

The Planned Installation Was Not Publicly Displayed ......................56

B.

MASS MoCA Is The Lawful Owner Of The Planned Installation And Would Have Been Entitled By The Copyright Act To Display The Work To The Public ............57

C.

No Derivative Work Was Created.....................................................58

CONCLUSION ....................................................................................................61

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TABLE OF AUTHORITIES CASES

PAGE(S)

Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303 (S.D.N.Y. 1994), rev'd in part on other grounds, 71 F.3d 77 (2d Cir. 1995)......................35, 51 Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340 (1991)..............................................................................59, 60 Fisher v. Klein, 16 U.S.P.Q. 2d 1795 (S.D.N.Y. 1990) ........................................................43 Flack v. Friends of Queen Catherine, Inc., 139 F. Supp. 2d 526 (S.D.N.Y. 2001) .........................................................39 Lee v. A.R.T. Co., 125 F.3d 580 (7th Cir. 1997).......................................................................59 Mass. Museum of Contemporary Art Found., Inc. v. Büchel, 565 F. Supp. 2d 245 (D. Mass. 2008)...................................................passim Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128 (1st Cir. 2006) .................................................................39, 45 Seshadri v. Kasraian, 130 F.3d 798 (7th Cir. 1997).......................................................................55 Streeter v. Rolfe, 491 F. Supp. 416 (W.D. La. 1980) ..............................................................56 STATUTES

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17 U.S.C. § 101 .................................................................................. 37, 42, 56, 57 17 U.S.C. § 102(a) ................................................................................................50 17 U.S.C. § 106 ..............................................................................................56, 59

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STATUTES (cont'd)

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Visual Artists Rights Act of 1990, 17 U.S.C. § 106A.....................................passim 17 U.S.C. § 109(c) ................................................................................................57 17 U.S.C. § 201(a) ................................................................................................55 17 U.S.C. § 202 ....................................................................................................57 17 U.S.C. § 504(c) ................................................................................................44

LEGISLATIVE HISTORY

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H.R. Rep. No. 101-514 (1990), reprinted in 1990 U.S.C.C.A.N. 6915 ....................................... 34, 36, 37, 38 Visual Artists Rights Act of 1989: Hearing on H.R. 2690 Before the Subcomm. on Courts, Intellectual Property, and the Admin. of Justice of the H. Comm. on the Judiciary, 101st Cong. (1989) ................................................... 34, 37, 38 ARTICLES

PAGE(S)

Cyrill P. Rigamonti, Deconstructing Moral Rights, 47 Harv. Int'l L.J. 353 (2006) .......................................................... 35, 50, 51 Geoff Edgers, Art without the artist, Bos. Globe, Jan. 6, 2008, at D1...................................................................43 Alix Browne, Big Bambú, N.Y. Times Mag., Mar. 29, 2009, at 47.......................................................43

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PRELIMINARY STATEMENT In 2005 and 2006, plaintiff-appellee Massachusetts Museum of Contemporary Art Foundation, Inc. ("MASS MoCA") and defendant-appellant Christoph Büchel ("Büchel"), a Swiss artist, planned an artistic installation for MASS MoCA's "Building 5." The installation was scheduled to open to the public in December 2006. In the fall of 2006, MASS MoCA personnel went to work gathering materials and building constructions in Building 5 for the planned installation. Building 5, the museum's signature gallery space, is the size of a football field and is several stories high. MASS MoCA's personnel -- working at Büchel's direction, but at the museum's expense -- built truly massive constructions in that space, including a cinema, nine industrial shipping containers joined by stairs, ladders and other complex structures, a fuel tanker (decontaminated at MASS MoCA's expense), a mobile home, a modified theme park ride, and 40 tons of cinder block walls. As the date of the planned opening drew near, Büchel fell further and further behind in his work. He had been months late in providing MASS MoCA with even a preliminary sketch of the planned installation. He repeatedly promised to come to MASS MoCA to work on the installation, only to arrive late (and then stayed to work for far less time than he had promised). He even went on "strike,"

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not only demanding that MASS MoCA announce a delay in the installation's agreed-upon opening date, but also demanding that the museum state that it alone was responsible for the delay. On December 17, 2006, Büchel left MASS MoCA for the Christmas holiday, shortly before museum personnel installed one of the largest components of the planned installation -- an entire two-story house. In January 2007, Büchel informed MASS MoCA that he would not return to complete the planned installation unless the museum complied with numerous conditions. MASS MoCA made extensive efforts to convince Büchel to return to finish the planned installation but did not succeed. While those efforts were under way, MASS MoCA personnel continued implementing the instructions Büchel had provided before his departure until those instructions were exhausted. When it became clear that Büchel would not return, MASS MoCA sought a declaration from the U.S. District Court for the District of Massachussetts that it was entitled to display the unfinished installation, without attributing it to Büchel unless he consented to that attribution. In the interim, in light of Büchel's assertions that any display of the planned installation would violate his rights, MASS MoCA covered the materials with tarpaulins and other measures designed to obstruct public view of and access to the unfinished installation. In response, Büchel asserted counterclaims against MASS MoCA, demanding that MASS MoCA pay him (in his words) "a very very big amount of money."

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After expedited yet comprehensive discovery, including an on-site viewing of the unfinished installation by the District Court, Judge Ponsor ultimately determined that MASS MoCA was entitled to display the unfinished installation. After consideration, MASS MoCA opted not to display the unfinished installation, but to remove it to make room for another scheduled exhibition. The District Court also determined that MASS MoCA was entitled to summary judgment in its favor on Büchel's counterclaims under the Copyright Act and Visual Artists Rights Act of 1990 ("VARA"). The only issue for this Court on this appeal is whether Büchel should be permitted to assert those counterclaims seeking money damages by reason of: (i)

MASS MoCA's work on the unfinished installation after Büchel's December 2006 departure, in anticipation of his eventual return;

(ii)

MASS MoCA's use of tarpaulins and other reasonable measures to restrict public view of the unfinished installation while this action was pending; and

(iii)

MASS MoCA's allegedly permitting certain guests of the museum to view the unfinished installation on a few occasions.

As a matter of the clear statutory language and simple practicality, the District Court was correct in granting summary judgment in favor of MASS MoCA on those claims. Büchel is not entitled to any -- let alone "a very very big amount of" -- money damages on these claims. The judgment of the District Court should be affirmed in all respects.

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STATEMENT OF FACTS 1.

The Parties MASS MoCA opened in 1999 as a center for making and presenting

new art -- in all media and at all stages of production -- and as a catalyst for economic revitalization in North Adams, Massachusetts. Today, MASS MoCA is a museum of contemporary art and is organized as a non-profit corporation and registered as a Massachusetts public charity. Joseph C. Thompson, founding Director of MASS MoCA, has overseen the production and presentation of more than 60 exhibits of visual art, and presented more than 600 works of art and installations by more than 250 individual artists, some of whom have exhibited in MASS MoCA's signature exhibition space, the football field-sized "Building 5" gallery.1 More than 65 of these visual art works have been major new fabrications and large-scale commissions, produced in MASS MoCA's workshops and galleries during the course of artist residencies.2

1

Appendix vol. 4, p. 1384 ("A. 4:1384") (Second Declaration Of Joseph C. Thompson ¶ 6 ("2d Thompson Decl.")); A. 1:14 (Complaint ¶¶ 9-10); A. 1:2829 (Answer ¶¶ 9-10).

2

Id.

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Christoph Büchel is an artist who resides in Switzerland.3 Büchel is represented by galleries in New York, Zürich and London, including Hauser & Wirth in Europe and Maccarone Gallery, Inc. in New York. 2.

In 2005-2006, MASS MoCA And Büchel Enter Into Preliminary Discussions Regarding An Installation For MASS MoCA's Premier Art Space -- Building 5 In the summer of 2005, MASS MoCA became interested in planning

an installation with Büchel. Büchel visited North Adams in October 2005 to discuss a possible installation at MASS MoCA.4 On December 21, 2005, Thompson sent a letter to Büchel's representatives at Hauser & Wirth concerning MASS MoCA's interest in an exhibition with Büchel.5 In the letter, Thompson discussed the possible budget for such an exhibition and noted: "It's our experience that $175,000 (including our in-house costs) is a fair budget for these massive Building 5 exhibitions."6

3

A. 1:14 (Answer ¶ 11).

4

A. 1:15 (Answer ¶ 12.).

5

A. 2:528 (Transcript Of Deposition Of Christoph Büchel 32:9-19 ("Büchel Tr.")); A. 2:572-75.

6

A. 2:574.

5

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Although MASS MoCA necessarily works on a lean budget,7 in the end the museum contributed approximately $300,000, including the cost of many of the materials collected, to build the exhibit.8 Indeed, as the District Court noted: "It is undisputed that nearly all the expenses for creating the installation were eventually carried by the museum." Mass. Museum of Contemporary Art Found., Inc. v. Büchel, 565 F. Supp. 2d 245, 250 (D. Mass. 2008) ("MASS MoCA"). Beginning in March 2006 and throughout the spring and early summer, MASS MoCA requested that Büchel provide a drawing of the planned installation (the "Planned Installation") to facilitate MASS MoCA's planning.9 However, it was not until early July that Büchel provided MASS MoCA with a "drawing" of the Planned Installation by sending a video recording.10 3.

In August 2006, MASS MoCA And Büchel Begin Work On The Planned Installation Despite Büchel's Short Stay In North Adams In March 2006, Büchel and MASS MoCA agreed that Büchel would

visit MASS MoCA in August 2006 for approximately one month to work on the 7

MASS MoCA programs and operates its spaces for a combined cost of $38 per square foot, versus an industry average of $127. MASS MoCA's per-visitor expenditures are also substantially below national averages. A. 4:1385 (2d Thompson Decl. ¶ 8).

8

A. 2:877.

9

A. 2:579, 582-83, 586, 591.

10

A. 2:595.

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Planned Installation.11 When August came, however, Büchel visited MASS MoCA from approximately August 21 to August 30 -- only ten days.12 During that visit, MASS MoCA and Büchel agreed that Büchel would work with MASS MoCA to present an installation in Building 5. The Planned Installation was to be titled "Training Ground for Democracy" and was to be a village through which visitors could walk and climb.13 Büchel conceived of the Planned Installation in this way: It was to adopt the role-play of U.S. military training for its visitors, who would be given the opportunity to 'virtually' change their own various identities in relation to the collective project called 'democracy': training to be an immigrant, training to vote, protest, and revolt, training to loot, training iconoclasm ....14 During his ten-day stay at MASS MoCA, Büchel, together with MASS MoCA, developed a model for the Planned Installation.15 That model included, among other things, a movie theater, numerous sea containers, a mobile home, a carnival midway, a cinderblock wall and a bar.16 The house depicted in 11

A. 2:582, 588.

12

A. 2:529 (Büchel Tr. 36:22-37:3).

13

A. 2:917 (Affidavit Of Christoph Büchel ¶ 8 ("Büchel Aff.")).

14

Id.

15

A. 1:426 (Transcript Of Deposition Of Joseph C. Thompson 127:14-128:16 ("Thompson Tr.")); A. 2:531 (Büchel Tr. 42:22-43:8).

16

A. 1:429 (Thompson Tr. 134:20-136:11, 139:10-140:23); A. 2:602.

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the model was a small, single story building. The model did not include an aircraft fuselage or a "Saddam Hussein" compound, although Büchel later suggested that the Planned Installation should include those elements.17 During this time period, while Büchel had broadly conceived the Planned Installation and developed a model with MASS MoCA, both Büchel and MASS MoCA understood that major components of "Training Ground for Democracy" would be added, eliminated or substantially revised as work progressed.18 Accordingly, the budget MASS MoCA provided to Büchel -- and not any particular model or plan -- was the operative constraint on his ability to realize his designs for the Planned Installation.19 As MASS MoCA and Büchel worked on the model, Thompson and Büchel discussed specific trade-offs that would be possible, and necessary, within those budget parameters.20 For example, in an August 2006 model building session, Büchel agreed that he would forego eleven of the twenty prospective sea containers to make budget, time and physical space available for a newly proposed faux theater.21 At that time, Büchel and MASS

17

A. 1:459 (Thompson Tr. 259:19-260:7).

18

A. 4:1386 (2d Thompson Decl. ¶ 10).

19

A. 4:1387 (2d Thompson Decl. ¶ 12).

20

Id.

21

A. 4:1387 (2d Thompson Decl. ¶ 13); see, e.g., A. 2:623-27.

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MoCA also agreed that MASS MoCA would collect and purchase materials for the Planned Installation, which would open on December 16, 2006.22 In the end, MASS MoCA procured the numerous materials that were collected and partially assembled in Building 5.23 4.

After Büchel Leaves North Adams In August 2006, MASS MoCA Continues To Work On The Planned Installation In Accordance With Büchel's Instructions During September 2006, following guidance from Büchel, who was

not in North Adams to oversee the process, MASS MoCA collected materials for potential use in the Planned Installation, including, among other things, nine sea containers, two small trailers, a media van, a mobile home, and numerous small items.24 As the District Court noted, during this period: [T]he absence of the artist from the site and the level of generality of his commands required the museum to act to some extent on its own, attempting to follow the artist's broad directives subject to his later approval, disapproval, or suggestions for modification. MASS MoCA, 565 F. Supp. 2d at 250-51.

22

A. 1:33 (Büchel's Counterclaims ¶ 6 ("Countercl.")); A. 1:428 (Thompson Tr. 134:20-136:1); A. 1:430 (Thompson Dep. Tr. 143:4-13); A. 2:529 (Büchel Dep. Tr. 36:2-13, 37:4-10).

23

A. 1:33-34, 35 (Countercl. ¶¶ 9, 15); A. 2:689-92.

24

A. 2:531 (Büchel Tr. 45:2-19); A. 2:620-21 (BUC00002560).

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Also, on September 14, 2006, Nato Thompson,25 who was at that time a MASS MoCA curator and the curator for the Planned Installation, sent an e-mail to Michelle Maccarone, Büchel's gallerist and representative in the United States, attaching a document entitled "Buchel Contract.doc." 26 That document was a letter from Thompson to Maccarone and Büchel that stated its purpose was to "formalize our relationship on this project."27 The next day, Thompson sent Büchel a letter in which he wrote, "[o]n the subject of budget, we think we've got a $160,000 project on our hands in direct costs."28 On September 24, 2006, Büchel acknowledged receipt of Thompson's September 15 letter by a return e-mail, which acknowledged the budgetary constraints for the project.29

25

References to "Thompson" or "Joseph Thompson" herein refer to Joseph C. Thompson, Director of MASS MoCA, and references to "Nato Thompson" refer to former MASS MoCA curator Nato Thompson. They are not related.

26

A. 2:606-09; see also A. 2:528 (Büchel Tr. 32:16-19 (Maccarone's role)).

27

Id.

28

A. 2:611-14 (MASS MoCA 13594); see also A. 2:618.

29

A. 2:623-24 (BUC00000728); see also A. 2:530 (Büchel Tr. 40:11-41:5), A. 2:577.

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Büchel Belatedly Returns To North Adams To Work On The Planned Installation And Provides Corrective Instructions When He Changes His Mind Or Is Not Satisfied With The Work Performed On September 26, 2006, Büchel informed MASS MoCA that he

would return to MASS MoCA to work on the Planned Installation on October 12, 2006.30 On October 5, 2006, Büchel sent Nato Thompson an e-mail advising that he would not arrive at MASS MoCA until October 25, 2006.31 As of October 28, 2006, Büchel had not yet arrived at MASS MoCA. On October 29, 2006, Büchel returned to MASS MoCA to continue work on the Planned Installation.32 He was assisted by MASS MoCA personnel, sub-contractors and consultants during that time.33 In some instances, Büchel was not satisfied with the work that had been performed by MASS MoCA personnel and contractors in his absence, either because he was unhappy with the work performed, or because he had changed his mind.34 In such instances, Büchel provided corrective instructions.35 MASS MoCA and Büchel continued to work 30

A. 2:629 (BUC00002624).

31

A. 2:639.

32

A. 2:531 (Büchel Tr. 44:21-25).

33

A. 2:675-76.

34

A. 2:611-16, 623-27, 675-77.

35

A. 2:623-27, 675-77, 696-97.

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together on the Planned Installation into early December 2006. As the District Court observed: As 2006 drew on, what began to emerge as "Training Ground for Democracy" was, of necessity, the product of a highly collaborative process with a good deal of back-and-forth and shared decisionmaking. MASS MoCA, 565 F. Supp. 2d at 251. 6.

In December 2006, Büchel Goes On Strike And Demands That MASS MoCA Delay The Opening Of The Planned Installation And Accept Sole Responsibility For The Delay On December 5, 2006, Büchel demanded that MASS MoCA

announce the postponement of the opening of the Planned Installation or he "will not work a single minute longer."36 Büchel further demanded that MASS MoCA issue a press release in which MASS MoCA accept sole responsibility for the postponement of the opening.37 Thompson urged Büchel to continue working while they discussed Büchel's demands.38

36 37

38

A. 2:533 (Büchel Tr. 50:3-24); A. 2:652-53, 655-57. A. 2:532 (Büchel Tr. 48:16-49:20); A. 2:652-53, 655-75. Büchel incorrectly asserts in his Brief that MASS MoCA admitted the delay was its own fault. Brief of Defendant-Appellant Christoph Büchel at 15, Massachusetts Museum of Contemporary Art Foundation, Inc., v. Christoph Büchel, No. 08-2199 (1st Cir. Feb. 27, 2009) (hereinafter "Büchel's Brief "). A. 2:659-60.

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The next day, MASS MoCA proposed an announcement to Büchel postponing the Planned Installation, which did not ascribe blame to any party.39 Büchel rejected that proposal, and stated that he "won't continue to work" unless MASS MoCA took sole responsibility for the delay.40 Later that day, MASS MoCA issued the following statement on its website: 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 re-scheduled. The official opening date will be posted here as soon as the date is finalized.41 On December 7, 2006, Thompson informed Büchel of all of the museum's efforts to alert the press and others that the Planned Installation had been postponed. 42 Büchel then returned to work on the Planned Installation. 7.

Büchel Meets With Visitors To The Planned Installation During His Stay In North Adams As part of MASS MoCA's educational mission to show the public the

process of making collaborative art, MASS MoCA frequently permits visitors to tour its galleries while materials are being assembled in connection with exhibits-

39

A. 2:662-63.

40

A. 2:662-63, 665.

41

A. 2:667.

42

A. 2:669-70.

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in-progress.43 Indeed, MASS MoCA rarely closes its galleries during the fabrication and installation of art, unless public safety or other logistics demand it. In furtherance of its mission, MASS MoCA occasionally brought visitors through Building 5 to view work being done in connection with the Planned Installation. 44 However, because of the heavy constructions and potentially dangerous objects being assembled in Building 5 during the fall of 2006 and into 2007, MASS MoCA was unable to tour the general public through that gallery space. Instead, the tours were limited to personal tours in the presence of accompanying museum personnel.45 Büchel often greeted visitors who were given such personal tours of the Planned Installation.46 For example, on December 17, 2006, Thompson received a thank you e-mail from a museum visitor with respect to one such tour: Thank you again for taking the time to show my mom and I the Buchel installation. Seeing the construction and learning about the evolution of this project was such a memorable experience. I am also so thrilled to have met Buchel himself!47 43

A. 1:471-72 (Thompson Tr. 309:4-310:10).

44

A. 2:495 (Thompson Tr. 393:24-394:19).

45

A. 1:471-72 (Thompson Tr. 309:20-310:10); A. 2:495 (Thompson Tr. 394:9-19).

46

A. 2:495 (Thompson Tr. 394:21-395:4).

47

A. 2:683; see also A. 2:495 (Thompson Tr. 394:9-395:4 ("Christoph himself hosted many visits to the gallery while it was in construction.... [H]e was quite charming to the people that we'd bring to the gallery.").

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Büchel Prepares To Leave North Adams And Provides Detailed Instructions For Work To Be Performed By MASS MoCA In His Absence On December 14, 2006, in anticipation of his departure from North

Adams, Büchel wrote to Thompson that "for the remaining days we need to coordinate ALL work that can be done during the time we are gone and the logistics of the tanker and the house."48 Accordingly, before Büchel left North Adams, Dante Birch, Richard Criddle and Joseph Thompson of MASS MoCA met with Büchel to discuss the work that MASS MoCA personnel should perform on the Planned Installation until Büchel returned to complete it. Specifically, Birch and Büchel spent well over seven hours reviewing nearly every aspect of the Planned Installation, and making a detailed list of additional tasks to be performed on the Planned Installation in Büchel's absence (and upon his expected return in early January).49 In addition to the instructions provided by Büchel, MASS MoCA personnel had received dozens of detailed instructions in the course of almost daily job meetings with Büchel and his assistants over the previous weeks.50 All of those detailed instructions -- including, but not limited to, the camouflaging of 48

A. 2:675-77.

49

A. 4:1391-92 (2d Thompson Decl. ¶ 26).

50

A. 4:1392 (2d Thompson Decl. ¶ 27).

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drywall screws, the application of a faux concrete finish of the theater floors, the re-design and re-making of certain rails and stairs (the first attempts at which Büchel was not satisfied with), and the careful protection of layers of grime and wear patina on certain doors, linoleum floors and other objects -- were provided by Büchel and his assistants prior to December 15, 2006.51 Many of these instructions took the form of quick sketches or notes, but many were oral, delivered by Büchel directly and extemporaneously to the museum workers and tradespeople undertaking the many tasks.52 On December 17, 2006, Büchel departed from MASS MoCA.53 Before his departure, the parties anticipated that Büchel would return to MASS MoCA to continue working on the Planned Installation after the New Year's holiday.54 9.

Büchel Declines The Opportunity To Be Present For The Installation Of A Major Component Of The Planned Installation -- An Entire House -- And Instead Entrusts The Task To MASS MoCA Personnel One of the largest tasks MASS MoCA faced at the time of Büchel's

departure was the installation of a house that MASS MoCA had procured for the 51

Id.

52

Id.

53

A. 2:536 (Büchel Tr. 62:8-10).

54

A. 2:546 (Büchel Tr. 103:14-22).

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Planned Installation. The house was scheduled to be installed shortly before the Christmas holiday. MASS MoCA made arrangements for Büchel to extend his stay to December 23, 2006, in which case he could have overseen the installation of the house.55 Nevertheless, Büchel chose to have MASS MoCA undertake that work in his absence.56 Before he left, Büchel indicated his desired placement of the house in Building 5 with tape marks on the floor.57 Accordingly, Büchel understood that a necessary part of the fabrication of the Planned Installation was that MASS MoCA would continue work in accord with his instructions in his absence. On December 22, 2006, the day the house was rigged into the gallery, Büchel was in Switzerland.58 On that day, in the course of rigging the house into Building 5, MASS MoCA discovered that Büchel had made a significant measuring error -- the house was several feet wider than his gallery floor markings indicated.59 Final placement of the house could not wait until Büchel's return: some 30 workers and two crane operators were awaiting direction, and heavy

55

A. 4:1392 (2d Thompson Decl. ¶ 28).

56

Id.

57

Id.

58

A. 4:1392 (2d Thompson Decl. ¶ 29).

59

A. 4:1393 (2d Thompson Decl. ¶ 30).

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house elements were literally suspended in air, both inside and outside the gallery. Dante Birch, MASS MoCA's Production Manager of Visual Art, made an on-thespot decision to maintain the centerline of the house and cinder block in accordance with the centerline reference marks that Büchel had marked on plans and on the floor of Building 5.60 Later that day, Birch informed Büchel by e-mail of the measurement error and how it was addressed: The house was four feet wider (north to south) than the tape on the floor. In order to maintain [] your street and the room behind it was judged best to go off your center line to maintain the integrity of your house divided down the center of the gallery while least impacting the other sides.61 Büchel subsequently misread or misconstrued this e-mail by suggesting that Birch's expression "to go off your center line" meant "to deviate from your center line," rather than "to maintain and use your center line."62 In fact, the house (and the adjacent cinder block wall subsequently constructed by MASS MoCA) was precisely centered on the centerline that Büchel had marked.63

60

Id.

61

A. 3:990-91 (BUC00001753).

62

A. 2:925 (Büchel Aff. ¶ 51).

63

A. 4:1393 (2d Thompson Decl. ¶ 31).

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10.

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Büchel Understands And Expects That MASS MoCA Will Work On The Planned Installation In His Absence Following Büchel's departure from MASS MoCA in December 2006,

MASS MoCA and Büchel continued to communicate about ongoing work on the Planned Installation.64 In accordance with Büchel's directions, MASS MoCA personnel continued work on the Planned Installation, believing that Büchel would return to MASS MoCA to complete it.65 By January 8, 2007, the following constructions had been built for the Planned Installation: a full-scale raked floor cinema; an exquisitely rendered Saddam Hussein compound with spider hole; nine sea containers, stacked and interwoven with multi-level stairs, ladders and other complex structural elements; a 35' fuel tanker cleaned, de-contaminated and craned into the building; a 12' x 60' mobile home rigged into a new 24' x 12' door cut into the gallery building [expressly] for that purpose; an entire two-story house dismantled and rebuilt within the gallery; and 40 tons of cinder block and mortar walls.66 In January 2007, MASS MoCA also continued its efforts to raise additional money to complete the Planned Installation.67

64

A. 2:535 (Büchel Tr. 61:5-18); A. 2:696-97, 699-701, 709, 722-23, 735-50.

65

A. 1:457 (Thompson Tr. 251:6-253:13); A. 2:687, 694, 696-97, 754-55, 774-77, 779-81, 815.

66

A. 2:689.

67

A. 2:685, 725-26, 730-33.

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Büchel Delivers An Ultimatum; MASS MoCA Tries In Vain To Negotiate His Return On January 20, 2007, MASS MoCA received an e-mail from

Maccarone attaching a letter from Büchel, dated January 16, 2007.68 In the letter, Büchel wrote that he would return to complete the Planned Installation only if certain conditions were satisfied, which included: (a) "full control [of] the project and the future budget. The money for the second round should be put in a special bank account in my name specific to this project," and (b) "[t]here is NO negotiation about the scope of the project."69 Büchel further wrote that "[i]n order to resolve this situation, which prevents all of us to resume the show, I would need full control over the project and funding in order to finish it."70 At that time, Hauser & Wirth offered to contribute $100,000 to the Planned Installation if Büchel would agree that Hauser & Wirth could make that contribution.71 Büchel did not agree.72

68

A. 2:703-07.

69

A. 2:704 (BUC00000165).

70

A. 2:706 (BUC00000167).

71

A. 2:712.

72

A. 2:723 (BUC00000901).

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On January 24, 2007, Thompson e-mailed Büchel's galleries, copying Büchel, and attached to the e-mail a letter to Büchel, a "Completion Plan," and a "Completion Budget."73 In the e-mail, Thompson wrote, Christoph: I haven't attempted to get in touch, per your request, but that's not because we haven't been thinking of you! Let's please talk after you've considered this material.... As I think you'll see by the photos, there's a lot of power in the galleries, and we've made great strides.74 On numerous occasions in January 2007, Büchel refused to accept any further communication from MASS MoCA until the museum unconditionally acceded to the unilateral terms on which he claimed he would complete the Planned Installation.75 Büchel refused to receive e-mails, and he rejected entreaties from Thompson to meet in Europe or in Iceland (where Büchel sometimes resides), to discuss possible resolution of the impasse.76 In early February, Büchel responded to Thompson stating, "[I] will not negotiate further this matter, as previously mentioned, because almost any of the main conditions are simply not fulfilled."77 A few days later, Thompson wrote

73

A. 2:714-18; see also A. 2:720.

74

A. 2:714.

75

A. 4:1395-96 (2d Thompson Decl. ¶ 38).

76

Id.

77

A. 2:752.

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Büchel stating, among other things, "[t]his project can and should end well, and we will continue to work in good faith towards that. With your help, we can still make a great project."78 That same day, Büchel responded to Thompson, directing him to "read again my letter from January 16th 2007… as well as my e-mail from the 28th of January 2007."79 The next day, Thompson responded by e-mail to the various points raised in Büchel's January 16 letter and urged Büchel to work with MASS MoCA to resolve the situation: "I know there is a way to finish the show."80 Büchel responded, "I will not negotiate any of the conditions [I] raised in my letter and emails."81 Around March 26, 2007, Büchel or his representatives sent a statement to the Boston Globe setting forth conditions under which Büchel would return to MASS MoCA to complete the Planned Installation.82 On March 28, 2007,

78

A. 2:754.

79

Id. (apparently referring to A. 2:703-07, 722-23).

80

A. 2:757-62.

81

A. 2:764.

82

A. 2:785-92 (stating that Büchel "believes in his work and want[s] to see it completed as he intended"); see also A. 2:794-98.

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Thompson again wrote a letter to Büchel stating that MASS MoCA wanted to work with him to complete the Planned Installation.83 Büchel received Thompson's letter by March 29, 2007. In an e-mail communication to Maccarone and Wirth -- his gallerists -- and others on that date, Büchel complained of purported "black mailing" and "sabotage acts" on the part of MASS MoCA. Büchel also described a strategy for avoiding any responsibility for his failure to complete the Planned Installation: "[I] would propose, and this not [out] of greed, but out of tactical reasons, … that we should sue Mass Coma [sic] for a very very big amount of money.84 By early April, Büchel insisted that any further communication be through his galleries.85 In his March 29, 2007 e-mail and at numerous times throughout the litigation, Büchel accused MASS MoCA of deliberately "sabotaging" his work.86 The idea that MASS MoCA would ever have deliberately sabotaged his work is absurd: MASS MoCA at all times worked in accordance with Büchel's instructions, notwithstanding the fact that his vision was unfolding and changing over time. In numerous instances, Büchel's complaints that the work was not as he 83

A. 2:800-04.

84

A. 2:808-09.

85

A. 2:815.

86

See, e.g., A. 2:808; A. 2:759.

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envisioned were due either to (i) the simple fact that he did not return to complete the Planned Installation, and so it did not appear in final form, or (ii) his apparent change of mind as to how particular elements of the Planned Installation should have ultimately appeared.87 Even as late as May 2007, MASS MoCA was still hopeful that Büchel would return to MASS MoCA to complete the Planned Installation.88 12.

In Büchel's Absence, MASS MoCA Personnel Continue Working Pursuant To His Pre-Departure Instructions In Anticipation Of His Hoped-For Return As the District Court observed, while these negotiations were in

progress, MASS MoCA continued performing work on the Planned Installation in anticipation of Büchel's hoped-for return:

87

A. 4:1397 (2d Thompson Decl. ¶ 43). For example, Büchel complained that without his approval or instruction, MASS MoCA had blocked the windows in the "Saddam compound" area with cinderblock. A. 2:928 (Büchel Aff. ¶ 68). In fact, those windows had been blocked for at least 20 years. A. 4:1402 (2d Thompson Decl. ¶ 53). In a sworn declaration submitted to the District Court, Thompson addressed each allegation made by Büchel of purported distortion or "sabotage" on the part of MASS MoCA personnel. See A. 4:1382-1416 (2d Thompson Decl. ¶¶ 44-53 (cinder block walls); ¶¶ 54-58 ("bomb carousel"); ¶¶ 59-65 ("Saddam compound"); ¶¶ 66-75 (cinema); ¶¶ 76-77 (house); ¶¶ 78-79 (police car and "French barriers"); ¶¶ 80-81 (purported "unauthorized detailing"); ¶¶ 82-85 (mobile home); ¶¶ 86-87(bar)).

88

A. 2:512 (Thompson Tr. 460:6-20).

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Throughout this dialogue and up until May 2007, MASS MoCA continued work on the installation based on the instructions that they had from Büchel's e-mails and verbal directions during his visits, the last of which were received in January 2007. MASS MoCA, 565 F. Supp. 2d at 251. In deposition testimony elicited below by Büchel's own counsel, MASS MoCA Director Joseph Thompson explained that as MASS MoCA gradually worked through Büchel's pre-departure instructions, its personnel performed less work on the Planned Installation: Sometime in January … [w]e were running out of direction. We had our punch list. We knew certain things had to be done.… [T]here was a whole long list of things for which we had adequate direction and understanding that we could continue forward to a certain point. When the work began to get very detailed and would require input from Christoph, if we could get the input from him, we could continue, and if we didn't, we would stop.89 Büchel's counsel elicited further testimony in which Thompson explained that by late February or early March, MASS MoCA's work was limited to very small tasks: And we were searching through the punch list for other things … that we could do without Christoph's presence there, things … [w]here we felt that we had sufficient knowledge to pursue.… We were getting down to the end of what we considered to be work that we could do. [The addition of the mobile home stairs] was one of the later jobs that we did so that could've been even … as late as late February or … [e]arly March. It was towards the end of our real work on them. 89

A. 1:451-52 (Thompson Tr. 229:15-230:17 (emphasis added)).

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Q. … You stated that you were searching for other things to do at the end of the punch list. Can you give me some other examples of what those things were? A. … They became smaller and smaller things … Things like just getting in place all the objects that Christoph or his assistants had marked as destined for a final destination. We began gathering those up and moving them -- [p]lacing them there in boxes, either inside or outside the units. I mean, literally putting in light bulbs and just things … that we could do that were on our punch list of items.90 Büchel's counsel elicited further testimony from Thompson in which he noted that work had "substantially stopped" on the show well before it was ultimately cancelled in May 2007, because MASS MoCA "ran out of things to do" with respect to the instructions that Büchel had left: [We] cancelled the show finally on … May 20th, and so no work has taken place on it after May 20th. There might have been bits and pieces that were taking place up to that …. But as I said, work was substantially stopped because we ran out of things to do sometime in April, I think.91 In his Brief, Büchel misreads the February 14, 2007 e-mail correspondence among MASS MoCA personnel on which he heavily relies, and which he selectively quotes.92 In particular, the express language of Thompson's email of 2:15 p.m. on that date shows that the "Plan B" he discusses was not a plan for unlimited future work on the Planned Installation to be performed at MASS 90

A. 1:457 (Thompson Tr. 251:24-253:8 (emphasis added)).

91

A. 1:462 (Thompson Tr. 271:5-13).

92

See Büchel's Brief, at 22-23, discussing A. 2:774-76.

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MoCA's whim, as Büchel baselessly speculates.93 Rather, it was a plan for curtailing MASS MoCA's future work on the Planned Installation by expressly articulating the limits on "how far we can go" in light of the remaining instructions left by Büchel on which MASS MoCA had not yet acted.94 In that e-mail, Thompson specifically enumerated certain remaining tasks that, in his view, fell within the ambit of Büchel's instructions, and concluded: "We'll go into super production mode for four or five days, finish what we can, and call it done."95 In response to an e-mail from Birch, raising concerns about that plan, Thompson was careful to clarify that "we're not arraying or placing the works."96 MASS MoCA's work would be limited to "prepping for [Büchel] assuming, as we still are, that there is some chance we'll see him here again." Thompson expressly acknowledged in that e-mail that until MASS MoCA received further instructions from Büchel, there were several elements of the Planned Installation that "we can't do much more on, granted."97

93

See Büchel's Brief, at 22.

94

A. 2:775-76.

95

A. 2:776 (emphasis added).

96

A. 2:775 (emphasis added).

97

Id. (emphasis added).

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Significantly, Büchel never requested that MASS MoCA and its personnel stop work on the Planned Installation.98 13.

MASS MoCA Cancels The Planned Installation And Announces The Opening Of A New Exhibit, "Made At MASS MoCA" On May 21, 2007, MASS MoCA announced the cancellation of the

Planned Installation and also announced the opening of a new exhibit entitled "Made At MASS MoCA."99 Due to the space constraints imposed by the materials assembled for the Planned Installation, the exhibition "Made At MASS MoCA" was presented in the museum's only remaining available gallery space, a small gallery adjacent to Building 5.100 In connection with the new exhibit, MASS MoCA temporarily cloaked, to the extent possible, the materials collected and partially assembled for the Planned Installation with tarpaulins and other physical and view-restricting measures, because the only access to the "Made At MASS MoCA" gallery was through Building 5, and visitors had to pass by those cloaked

98

A. 2:558 (Büchel Tr. 152:13-17); A. 2:696 (requesting that MASS MoCA send him progress pictures of work being done in his absence).

99

A. 2:834-36. "Made At MASS MoCA" surveyed MASS MoCA's work with a wide range of visual and performing artists over more than a decade. Id.

100

Id. There is no evidence in the record to substantiate Büchel's inflammatory claim that "'Made At MASS MoCA' was a massive publicity stunt designed to embarrass Büchel." Büchel's Brief, at 30.

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materials to reach "Made At MASS MoCA."101 MASS MoCA also placed signage throughout Building 5 directing visitors to "Made At MASS MoCA" by a pathway that least exposed them to the covered and otherwise obscured materials.102 MASS MoCA did not invite the public to view the materials collected in Building 5 for the Planned Installation following its cancellation, did not post signs associating Büchel with the unfinished work, and took measures to reasonably ensure that the public could not view the partially assembled materials, including increasing its guard force during the busy summer months.103 14.

The District Court Finds For MASS MoCA; MASS MoCA Chooses To Remove The Planned Installation To determine the rights of all involved, on May 21, 2007, MASS

MoCA filed a one-count complaint in the District Court seeking a declaratory judgment that it was "entitled to present to the public the materials and partial constructions assembled in connection with the exhibit planned with the Swiss artist Büchel."104 Büchel then counterclaimed, asserting five counts.105 Büchel 101

A. 2:835, 853, 862-67.

102

A. 2:853. For example, visitors entered through a side door of Building 5 to avoid passing through the projection booth, cinema, and "Saddam Hussein" elements of the Planned Installation. The regular visitor entrance to that building was locked. Id.

103

A. 2:832, 853.

104

A. 1:12 (Complaint ¶ 1).

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also used the complaint itself, along with other documents from the dispute with MASS MoCA, to create and sell artwork through his gallery.106 Both parties moved for summary judgment following expedited, but comprehensive discovery, which included a site visit by the District Court of the Planned Installation in order to view the Planned Installation in both its shrouded and then un-shrouded condition. Following argument on cross-motions for summary judgment, the District Court issued an oral ruling, granting MASS MoCA's motion seeking declaratory relief to display the materials un-shrouded, and denying Büchel's motion for injunctive relief, which sought to prevent the display of the unfinished assembled materials. Significantly, in so holding, the District Court directed that MASS MoCA post a "disclaimer that would inform museum patrons that the exhibit constituted an unfinished project that did not fully carry out the installation's original intent." MASS MoCA, 565 F. Supp. 2d at 248. In light of that holding, MASS MoCA could have removed the tarpaulins and showed the Planned Installation to the public with the appropriate disclaimer or agreed statement. However, in light of the passage of time and ________________________ (cont'd from previous page) 105

A 1:32-47.

106

A 2:567 (Büchel Tr. 188:6-190:3).

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previous commitments to show other art in Building 5, it chose not to do so. Instead, MASS MoCA dismantled the Planned Installation and removed it from its Building 5. On July 11, 2008, the District Court issued a written decision, holding that MASS MoCA was entitled to summary judgment on all of Büchel's counterclaims. This appeal followed.

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SUMMARY OF THE ARGUMENT VARA, the Visual Artists Rights Act, grants visual artists the "moral rights" of integrity and attribution. The right of integrity bars "distortion, mutilation, or other modification" of a work of visual art if that distortion "would be prejudicial to [the artist's] honor or reputation." 17 U.S.C. § 106A(a)(3)(A). The right of attribution provides that an author has the right to claim authorship of a work that he or she created, and to prevent the use of his or her name on a work that he or she did not create, or that has been distorted. See id. § 106A(a)(1), (2). VARA does not provide -- as some countries do -- a moral right of "disclosure," which grants the artist the right to decide when a work of art is finished and when a work is ready for public display. (See Part I infra.) Although there is substantial basis in the legislative history of VARA to hold that collaborative works and unfinished works are entitled to more circumscribed protection, the District Court's analysis expressly assumed that VARA fully applied to the unfinished installation at issue here. (See Part II.A infra.) The District Court correctly held that Büchel's right of integrity regarding that unfinished installation was not violated by (i) work performed by MASS MoCA personnel on the unfinished installation in Büchel's absence, and pursuant to his instructions, in anticipation of his eventual return; (ii) MASS MoCA's use of tarpaulins and other reasonable measures to restrict public view of the unfinished

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installation; or (iii) views of the unfinished installation by certain museum guests. Büchel failed to show that those few and limited acts constituted a "distortion, mutilation, or other modification" within the meaning of VARA, and also failed to offer any evidence of prejudice to his honor or reputation. (See Part II.B.1-3 infra.) The District Court also correctly held that Büchel's right of attribution was not violated by MASS MoCA: while making use of an adjoining gallery space for another exhibit, MASS MoCA concealed the unfinished installation with tarpaulins, and did not attribute the unfinished installation to Büchel. (See Part II.C infra.) The District Court was also correct in holding that MASS MoCA did not violate any of Büchel's rights under the Copyright Act. MASS MoCA did not publicly display the unfinished installation, although it was the lawful owner of that installation and would have been entitled to do so. (See Part III.A-B infra.) Nor did MASS MoCA's purely mechanical use of tarpaulins and other view restricting measures for the sole purpose of concealing the unfinished installation create a "derivative work" in violation of Büchel's copyright. (See Part III.C infra.) This Court should affirm the judgment of the District Court in all respects.

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ARGUMENT I.

VARA CONFERS TWO DEFINED "MORAL RIGHTS" ON VISUAL ARTISTS VARA provides visual artists with certain rights with respect to their

works. Passed in 1990 after significant debate regarding its scope and effect, VARA recognizes a specified class of "moral rights" of artists in the works that they create.107 The moral rights recognized under VARA are different from and independent of the economic rights recognized in the Copyright Act.108 VARA recognizes two moral rights potentially relevant to this case: the right of integrity and the right of attribution.109 17 U.S.C. § 106A(a). The right of integrity allows the creator of a work of visual art: 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. Id. § 106A(a)(3)(A).

107

See, e.g., H.R. Rep. No. 101-514, at 7 (1990), reprinted in 1990 U.S.C.C.A.N. 6915, 6917-19; Visual Artists Rights Act of 1989: Hearing on H.R. 2690 Before the Subcomm. on Courts, Intellectual Property, and the Admin. of Justice of the H. Comm. on the Judiciary, 101st Cong. 26 (1989) (statement of Congressman Coble) (hereinafter "Hearing on H.R. 2690").

108

H.R. Rep. No. 101-514, at 14, reprinted in 1990 U.S.C.C.A.N. at 6924.

109

VARA also recognizes the right to prevent the destruction of a work of recognized stature, which is not at issue here. 17 U.S.C. § 106A(a)(3)(b).

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The right of attribution provides that an author has the right to claim authorship of a work that he or she created and to prevent the use of his or her name on a work that he or she did not create, or that has been distorted. See id. § 106A(a)(1), (2). While VARA recognizes these two rights, VARA does not recognize a moral right of disclosure, which is recognized by some other countries. See Cyrill P. Rigamonti, Deconstructing Moral Rights, 47 Harv. Int'l L.J. 353, 362, 405 (2006). The right of disclosure provides the author of a work with the right to decide when a work of art is finished and when a work is ready for publication. See id. ("VARA ignores the rights of disclosure and withdrawal and instead focuses on the rights of attribution and integrity"). Other countries, such as France, Germany and Italy legally recognize that separate moral right. See id. at 359. However, nowhere in VARA did Congress give an artist the right to decide when a piece of work is complete or the right to decide when a work will be released to the public. In addition, courts construing VARA have concluded that the right to finish a work is not included in VARA. Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303, 329 (S.D.N.Y. 1994), rev'd in part on other grounds, 71 F.3d 77 (2d Cir. 1995) (finding that VARA does not include the moral right to finish a work). The carefully circumscribed scope of VARA requires that courts restrict the application of VARA to remedies that are explicitly provided for in the

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statute. Further, to preserve the carefully defined scope of VARA, an artist should likewise bear the burden of establishing a clear violation of VARA. Accordingly, the District Court cautioned, "courts should be wary of attempts to invoke VARA where a violation of the explicitly recognized rights of attribution or integrity is difficult to discern." MASS MoCA, 565 F. Supp. 2d at 258. II.

MASS MOCA DID NOT VIOLATE BÜCHEL'S RIGHTS OF INTEGRITY OR ATTRIBUTION UNDER VARA A.

The District Court Expressly Assumed That VARA Applied To The Planned Installation In this case, the District Court expressly assumed that VARA applied

to the unfinished Planned Installation, and on that basis held that MASS MoCA had not violated any right granted by VARA: Assuming the statute does apply, display of this unfinished installation would have violated neither Büchel's right of attribution nor his right of integrity. MASS MoCA, 565 F. Supp. 2d at 259. Accordingly, this Court may affirm that grant of summary judgment without determining whether collaborative artworks and unfinished works of visual art are subject to more circumscribed protection under VARA. VARA, by its terms, extends the moral rights it recognizes only to "works of visual art." VARA places the burden on the artist to show that the work in question is a "work of visual art" as defined and not excluded by the statute. See

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H.R. Rep. No. 101-514, at 13, reprinted in 1990 U.S.C.C.A.N. at 6923. VARA defines a work of visual art as "a painting, drawing, print, or sculpture, existing in a single copy." 17 U.S.C. § 101. In enacting VARA, Congress carefully defined the term "work of visual art:" The definition of a work of visual art is a critical underpinning of the limited scope of the bill. As Representative Markey testified, 'I would like to stress that we have gone to extreme lengths to very narrowly define the works of art that will be covered.' H.R. Rep. No. 101-514, at 10-11 (1990), reprinted in 1990 U.S.C.C.A.N. at 692021. And "[t]he definition is not synonymous with any other definition in the Copyright Act."110 H.R. Rep. No. 101-514, at 11 (1990), reprinted in 1990 U.S.C.C.A.N. at 6921. Excluded from the definition of a "work of visual art" is any motion picture or other audiovisual work. 17 U.S.C. § 101. The legislative history indicates that Congress specifically excluded these artworks due to their collaborative nature. As Representative Coble stated: [This legislation] is narrowly drawn -- as it should be -- directing attention to art that has been produced generally by individual artists as opposed to legions of people as would be the case in the motion picture industry.

110

Büchel attempts to import other definitions in the Copyright Act into VARA. Büchel's Brief, at 40-41 (discussing definitions of "created" and "fixed"). Nonetheless, the term "work of visual art" is "not synonymous with any other definition in the Copyright Act." H.R. Rep. No. 101-514, at 11 (1990), reprinted in 1990 U.S.C.C.A.N. at 6921.

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Hearing on H.R. 2690 at 26; see also H.R. Rep. No. 101-514 at 9, reprinted in 1990 U.S.C.C.A.N. at 6919 (contrasting individual artists with those artists who participate in collaborative works of art). Accordingly, the District Court remarked: The statute's legislative history suggests that the decision not to include film within VARA's protections stemmed in part from the fact that the creation of this form of art tends to be 'a collaborative effort,' with the possibility of evolving formats in different markets. MASS MoCA, 565 F. Supp. 2d at 256. Similar to the collaborative process of filmmaking, major installations like those planned by Büchel require the effort of numerous individuals simply to assemble all of the component parts and then to create the actual artwork.111 The District Court also observed: Beyond the repeated insistence by Congress on the narrow scope of VARA, there is good reason to suspect that unfinished works of art may have only limited protection. MASS MoCA, 565 F. Supp. 2d at 257 (emphasis in original).112 Nowhere in VARA are unfinished works mentioned. See 17 U.S.C. § 106A. As one court put

111

See, e.g., A. 1:33-34, 35 (Countercl. ¶¶ 9, 15); A. 2:572-75.

112

Büchel argues that the District Court's Order is self-contradictory because it held that unfinished works of visual art lack VARA protections, but also hypothesized violations of VARA for unfinished works of visual art. Büchel's Brief, at 39. Not so: while the District Court discussed whether unfinished works may enjoy circumscribed protection under VARA, it expressly assumed VARA's application in its analysis. See, e.g., MASS MoCA, 565 F. Supp. 2d at 259-60.

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it, "VARA most decidedly does not cover works that do not yet exist." Flack v. Friends of Queen Catherine, Inc., 139 F. Supp. 2d 526, 535 (S.D.N.Y. 2001). In Flack, a sculptor sued under VARA after the group that commissioned her to create a bronze statute allegedly destroyed a clay model that was intended to be used to create the bronze statute. While the Southern District of New York extended VARA to apply to the clay model, it also found that VARA did not apply to the incomplete, partially cast bronze statute. Id. In addition, to find VARA applicable to these unique circumstances would allow an artist to begin work on an exhibit in a museum, abandon it and hold the museum's land hostage for fear of removing or altering it in any way, lest the museum violate VARA. See, e.g., Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128, 131 (1st Cir. 2006). However, in granting summary judgment for MASS MoCA in this case, the District Court expressly assumed that VARA did apply to the Planned Installation. MASS MoCA, 565 F. Supp. 2d at 259. B.

There Was No Violation Of Büchel's Right Of Integrity VARA provides that an author of a work of visual art shall have the

right: 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.

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17 U.S.C. § 106A(a)(3). Thus, in order to state a violation of the right of integrity, the author of the work must show both that there was an "intentional distortion, mutilation, or other modification" of the work and that the distortion was prejudicial to the artist's reputation. See id. Büchel alleges that (i) the work performed by museum personnel, (ii) the "display" of the covered Planned Installation, and (iii) allegedly showing the Planned Installation in an unfinished state to particular museum guests on a few occasions violated his purported right of integrity. All of these accusations are unfounded. Büchel failed to show that any of these acts constituted a distortion, mutilation or modification for purposes of VARA, and also failed to show that any hypothetical distortion, mutilation or modification harmed his reputation. 1.

Work Performed On The Planned Installation By MASS MoCA Personnel Was Not A Distortion, Mutilation Or Modification And Was Not Prejudicial To Büchel's Honor Or Reputation

Work by MASS MoCA personnel to carry out Büchel's instructions for the planned installation does not constitute a violation of any right of integrity. As the District Court correctly held: Certainly the efforts made by museum staff to implement Büchel's long-distance instructions, even if occasionally misguided, cannot form a basis for VARA liability. Fumbled efforts to assist in creating, or failing to create, a work of art are not equivalent to distortion, modification, or mutilation of the art. MASS MoCA, 565 F. Supp. 2d at 260-61. 40

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When he was present in North Adams, Büchel supervised MASS MoCA personnel in the fabrication process. Throughout this complex and lengthy process, there were times when Büchel was not satisfied with the work performed by MASS MoCA personnel. At times Büchel felt that the work was not done in the manner that he required, and at other times he changed his mind about what should be done. When Büchel was not satisfied with the result of work by MASS MoCA personnel, typically, he would instruct the personnel as to what should be corrected. 113 Before Büchel left North Adams on December 17, 2006, he participated in several conversations with MASS MoCA personnel where they discussed what museum personnel would do in the coming weeks and months to ensure the exhibit progressed to completion.114 After Büchel left North Adams in mid-December 2006, he continued to provide MASS MoCA with instructions and corrections for the planned installation.115 As the installation of the house shows, Büchel understood and expected that MASS MoCA would continue to work on the

113

A. 2:623-27, 675-77, 696-97.

114

A. 4:1391-92 (2d Thompson Decl. ¶ 26).

115

A. 2:535 (Büchel Tr. 61:5-18); A. 2:696-97, 699-701, 709, 722-23, 735-50. Büchel argues that MASS MoCA was "effectively freelancing" by working on the Planned Installation in early 2007. Büchel's Brief, at 45. In support of this assertion, Büchel cites to a February 14, 2007 e-mail, but he misreads and selectively quotes that e-mail. (See pp. 26-27, supra.)

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Planned Installation in his absence. 116 At no point did Büchel advise MASS MoCA that work should cease on the Planned Installation. 117 Büchel cannot now claim that work performed on the Planned Installation pursuant to his instructions effected a violation of VARA.118 The arrangement in this case, where assistants and third parties assist an artist in the preparation of an exhibit, is explicitly recognized in the Copyright Act. Under the Copyright Act, an author may create a work protected by the Act where the author causes that work to be created through the effort of other persons acting under the author's authority. See 17 U.S.C. § 101 ("A work is 'fixed' in a tangible medium of expression when its embodiment in a copy …, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived" (emphasis added)). Judge Pierre Leval, a noted commentator on copyright law who now sits on the Second Circuit, remarked in an opinion that he delivered as a judge of the Southern District of New York that large-scale sculptures

116

A. 4:1397-99, 1400-01, 1402, 1404, 1406, 1407 (2d Thompson Decl. ¶¶ 44-47, 49, 51-52, 54-55, 59, 65, 67).

117

A. 2:558 (Büchel Tr. 152:13-17); A. 2:696 (requesting progress pictures of work performed in his absence).

118

Büchel's Brief flatly asserts that "MASS MoCA continued to work on the installation, without Büchel's authorization or direction, for months after he left North Adams...." Büchel's Brief, at 44. The record before the Court belies this assertion. (See pp. 19, 24-28 supra.)

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and installations in particular may require the use of third persons to implement the artist's designs: Now, I think it is quite clear under the copyright law that authorship, even with respect to sculptors, need not be in the form of the manipulation of the material. Earlier during the closing statements of counsel, we had some discussion of the concept of a sculptor who might sit in a chair, never moving and never touching the materials, perhaps in part because he might be paralyzed or simply because the materials might be large and heavy. There are sculptors nowadays who work in huge materials, I-beams, storage tanks, things like that, that are welded together where the sculptor's contribution is rendered entirely by the giving of instructions to workmen to put a member in a certain position and bolt it to another member and so forth. I think it is clear without question that such participation is authorship. Such carrying out of ideas of authorship is recognized as authorship under the copyright law even if the author never places his hand on the material. Fisher v. Klein, 16 U.S.P.Q.2d 1795, 1796 (S.D.N.Y. 1990) (emphasis added).119 Büchel, however, advances an untenable interpretation of VARA's right of integrity. Büchel appears to contend that VARA precludes artists from working with third persons in this fashion. In particular, he appears to contend that no one other than the artist himself (or herself) may ever perform any work in fabricating visual art unless that specific task has been authorized by the artist in a

119

See also Geoff Edgers, Art without the artist, Bos. Globe, Jan. 6, 2008, at D1 ("In one way or another, contemporary artists have been handing off the actual making-of part for years. ... Some artists have built entire careers on this concept."); Alix Browne, Big Bambú, N.Y. Times Mag., Mar. 29, 2009, at 47 (describing bamboo sculpture "assembled under the artists' direction by a team of about a dozen rock climbers over a period of 10 weeks").

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signed, written document satisfying the requirements set forth in subsection (e)(1) of VARA, 17 U.S.C. § 106A(e)(1).120 Under that novel theory, in the absence of documentation meeting that exacting VARA standard, an artist's assistant or other worker who performs work in fabricating visual art -- even at the artist's express direction -- would be committing an "intentional … modification" of that work in violation of VARA, id. § 106A(a)(3)(A), and would be liable to the artist for significant statutory damages. See id. § 504(c). MASS MoCA is not aware of any court or recognized authority that holds, per Büchel's theory, that VARA was intended to regulate artists' relations with assistants and other persons who assist artists in carrying out their designs. And for good reason: application of that theory would impose an enormous and impractical logistical burden that would make the creation of intricate, large-scale installations of the type contemplated here impossible to execute. As the District Court stated: [The Planned Installation's] huge size and extraordinary level of detail necessarily made it difficult to perceive as the product entirely of one person's imagination and execution.

120

That documentation problem could not be addressed by having the artist sign a blanket waiver: blanket waivers are not enforceable under VARA. See 17 U.S.C. § 106A(e)(1) ("the waiver shall apply only to the work and uses so identified" (emphasis added)).

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MASS MoCA, 565 F. Supp. 2d at 255. Adoption of Büchel's theory here would discourage future installations of this type, because it would subject institutions that might undertake such projects to an ever-present prospect of VARA liability if they took any step to construct an installation according to an artist's instructions without first generating detailed waiver documentation. That interpretation is utterly unworkable, especially for projects that unfold organically, during the trial and error process that often characterizes experimental artworks. Congress did not intend VARA to regulate the working relationships between artists, their assistants and museums. This Court has previously taken such practical considerations into account when interpreting VARA.121 Nor, for that matter, was Büchel actually under the impression that that overlay of legal documentation was required. For example, notwithstanding

121

In Phillips v. Pembroke Real Estate, Inc., the First Circuit balanced the rights of a landowner against the rights of an artist under VARA. 459 F.3d 128, 142 (1st Cir. 2006). In that case, Phillips was a sculptor who created "site-specific" art in a park in South Boston. When the owner of the park later wanted to change the design of the park, Phillips sued under VARA to prevent the owner from removing his sculptures. Id. at 131. In holding that VARA does not apply to site-specific art, the First Circuit noted that to hold otherwise "could dramatically affect real property interests and laws" because "[o]nce a piece art is considered site-specific, and protected by VARA, such objects could not be altered by the property owner absent consent of the artist." Id. at 142. Accordingly, when confronted with application of VARA to an artwork, the First Circuit interpreted VARA in light of relevant practical and legal considerations.

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MASS MoCA's offer to stay and oversee the installation of the house, Büchel left North Adams in December 2006 and entrusted the installation of the house in Building 5 to MASS MoCA.122 In any event, Büchel has failed to show that any work performed by MASS MoCA personnel in his absence was injurious to his honor or reputation. See 17 U.S.C. § 106A(a)(2), (3). By its terms, that is an objective test, requiring a showing that the purported distortion would actually cause prejudice to an artist's "honor or reputation." Büchel offered no evidence to the District Court showing that any work performed by MASS MoCA personnel injured his reputation. Büchel's personal dissatisfaction with the work performed is not sufficient to meet the objective standard that the purported distortion would actually cause prejudice to an artist's "honor or reputation." Büchel's cherry-picked quotations from art critics who disagreed with the museum's course of action, and speculated that Büchel's reputation could be harmed, also do not show actual harm to Büchel's reputation.123

122

See A. 4:1392 (2d Thompson Decl. ¶ 28).

123

MASS MoCA will not burden the Court with examples of coverage in the art media that sympathized with the museum's dilemma and approved of its handling of this matter. Nor will it burden the Court with the thousands of positive reviews it has received in respect of the hundreds of other visual and performing artists who have made or exhibited new art at MASS MoCA, and who actually completed their work as promised.

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Covering The Planned Installation With Tarpaulins And Other View Restricting Measures Was Not A Distortion, Mutilation Or Modification And Was Not Prejudicial To Büchel's Honor Or Reputation

After Büchel refused to return to North Adams to complete the installation, MASS MoCA was left in an unenviable position: its premier art space, Building 5, was effectively held hostage by an absent artist during the most profitable time of year. Although it is now clear that MASS MoCA could have opened the Planned Installation to the public, the museum chose a cautious -- and expensive -- route, covering it with tarpaulins and other reasonable view restricting measures while seeking a determination of the rights of all parties. Covering the Planned Installation so that the public could not see the Planned Installation was not a distortion, mutilation or modification. Surely, every occasion when a museum or a private owner covers a sculpture, or blocks views into a gallery -- e.g., during building renovations or gallery installations -- cannot give rise to a VARA violation. Indeed, the actual covering of the Planned Installation does not appear to be Büchel's concern. Instead, he complains that parts of the Planned Installation remained visible, that people "peeked" behind the tarpaulins, and that his reputation was harmed by views of the covered-version of the Planned Installation. The record does not support Büchel's complaints. Based on a personal observation of the Planned Installation, Judge Ponsor stated: 47

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[T]he limited visual access afforded anyone walking past while the assemblage was under wraps provided no significant access to, or any reliable sense of, the partially completed installation. Any observer of the tarpaulins would receive a vague impression of variously sized lumps, with random bits occasionally protruding out or only partially covered, and a general sense of the overall size of the project -- no more. No reasonable person would feel that he or she had seen the unfinished work itself, or any model or derivative work based upon it. Moreover, no reasonable person, looking at these bulges and protrusions, could fairly claim that he or she had viewed an artistic creation by Christoph Büchel. MASS MoCA, 565 F. Supp. 2d at 255 (emphasis in original). Büchel's attempt to marshal evidence to contradict the District Court's observation, based on a personal site visit by the District Court made at the agreement of both parties, falls woefully short. The photographs that Büchel points to in the record buttress the District Court's conclusion that the tarpaulins substantially covered the Planned Installation and no reasonable visitor could have viewed more than the tarpaulins, the top of a house, a shipping container or two and the top of a carousel.124 Further, there is simply no admissible evidence in the record that anyone actually "peeked" behind the tarpaulins.125 In any event, Büchel has failed to show how any "display" of the materials obscured by the tarpaulins was "prejudicial to his . . . honor or reputation" under VARA. See 17 U.S.C. § 106A(a)(2), (3). An artist's self-serving 124

A. 3:1095-98 (cited in Büchel's Brief, at 46).

125

See, e.g., A. 2:862.

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claim that he is unhappy with a purported "distortion" of a work does not satisfy that element of the statute. Here, as Büchel admits, it was widely known that Büchel did not complete the Planned Installation, and that the covered materials did not constitute his finished work.126 Accordingly, to show that any purported distortion by MASS MoCA was "prejudicial to his honor or reputation," Büchel would have had to present evidence that the artistic community actually considered the "distortion," i.e., the covering of the Planned Installation with tarpaulins, or its unfinished condition, to be the result of an artistic misjudgment on Büchel's part, rather than a result of his dispute with the museum. This Büchel did not do.127 Indeed, Büchel's own considerable efforts to draw attention to the controversy, which included offering for sale court filings and correspondence related to this dispute as artwork, confirm that he himself did not genuinely believe that any purported distortion was injurious to his artistic career or in any way "prejudicial to his honor or reputation."128 126

A. 2:838-851, 855-60, 862-67.

127

Indeed, the art critics cited by Büchel -- see Büchel's Brief, at 47 -- expressly recognize that the unfinished nature of the installation is attributable to the dispute, and not to Büchel's design.

128

See A. 2:567-68 (Büchel Tr. 187:24-190:21). At the conclusion of his deposition, Büchel indicated that he might even seek to sell the videotape of the deposition as art. See A. 2:568 (Büchel Tr. 192:22-193:12).

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Any Display Of The Unfinished Planned Installation Was Not A Distortion, Mutilation Or Modification And Was Not Prejudicial To Büchel's Honor Or Reputation

VARA does not grant an artist the right to complete unfinished works or the right to prevent the display of an unfinished work. In particular, the Copyright Act only protects works that are "fixed" in a "tangible medium of expression." 17 U.S.C. § 102(a). The Act does not protect hypothetical work that has not yet been (and may never be) created, and thus it cannot be read to protect a hypothetical future work from "distortion" by being shown in an incomplete state. Accordingly, the District Court properly held: [N]othing in MASS MoCA's planned display of the unfinished installation would have violated Büchel's right of integrity, for the simple reason that no completed work of art ever existed on these facts for the museum to distort, mutilate or modify. To suggest that the display of an unfinished and abandoned work somehow constitutes a distortion, mutilation or modification of that non-existent work is simply inconsistent with the ordinary usage of those terms. MASS MoCA, 565 F. Supp. 2d at 260. Büchel, however, argues that MASS MoCA "distorted Büchel's work merely by showing it in its unfinished state."129 It is true that some countries grant artists moral rights above and beyond attribution and integrity. France, for example, grants an artist the additional moral right to prevent the display of an unfinished work. See Rigamonti, Deconstructing Moral Rights, 47 Harv. Int'l L.J. 129

Büchel's Brief, at 47.

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at 359. VARA, however, is circumscribed in scope, and nowhere in VARA is the right disclosure. (See Part I supra.) Congress did not include those rights in VARA, and Büchel cannot obtain for himself through artful argumentation additional moral rights that Congress purposefully chose not to include within VARA's protections.130 Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303, 329 (S.D.N.Y. 1994), rev'd in part on other grounds, 71 F.3d 77 (2nd Cir. 1995), is consistent with Congressional intent that VARA be interpreted according to its terms. In Carter, the Southern District of New York rejected a claim that VARA provides a right against the display of a work that the artist did not complete. Id. If the Court were to recognize that the "display" of the shrouded, unfinished materials were an inherent distortion and violated any right of integrity, the Court would be reading into VARA a right that Congress declined to include.131

130

131

Büchel claims that "[t]o present an artist's work before this 'painstaking[]' process of 'personal expression' is complete" is a distortion of that work. Büchel's Brief, at 48. Again, however, Congress chose not to include the right of disclosure within VARA's protections. (See Part I supra.) Büchel relies on newspaper articles and websites for his "factual" claims that members of the public viewed the Planned Installation. See, e.g., Büchel's Brief, at 3, 31-32. Not only are these statements obvious hearsay, but an article in which a writer claimed that someone else viewed the Planned Installation (e.g., A. 2:795) is double hearsay, and not competent evidence of anything. Further, there is simply no competent evidence in the record to establish that MASS (cont'd)

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In addition, Büchel's assertion that certain museum patrons may have been permitted to walk past the obscured materials cannot reasonably be viewed as a "distortion, mutilation or modification" of any unfinished and abandoned work by Büchel. To find a distortion, mutilation or modification in these set of facts would stretch VARA beyond its intended bounds and punish MASS MoCA for acting to protect the rights of all involved. The District Court correctly noted: [A] legal rule to the effect that when a museum allows an unfinished, covered assembly of materials to be seen, it has violated VARA, would create at least an awkward, and probably unmanageable, burden for both artists and exhibitors. MASS MoCA, 565 F. Supp. 2d at 261. In any event, Büchel did not offer any evidence suggesting that occasional partial views of the unfinished Planned Installation by museum guests could have been injurious to his artistic career or in any way "prejudicial to his honor or reputation." C.

There Was No Violation Of Büchel's Right Of Attribution VARA provides that:

[T]he author of a work of visual art shall have the right to claim authorship of that work[] and to prevent the use of his or her name as the author of any work of visual art which he or she did not create [and] . . . to prevent the use of his or her name as the author of the ________________________ (cont'd from previous page)

MoCA generally permitted the public to view the Planned Installation unshrouded.

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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. 17 U.S.C. § 106A(a). Below, Judge Ponsor offered conjectural examples of a violation of the right of attribution: "[A]n artist's attributive rights would prevent Artist B from claiming Artist A's work as his or her own. The same protection would prevent Artist B from creating a work, but labeling it as Artist A's." MASS MoCA, 565 F. Supp. 2d at 256. In this case, there was no violation of any right of attribution. As the District Court observed: This was simply not a case of MASS MoCA planning to present Büchel's art work as its own, or presenting its own or someone else's art work as Büchel's. Id. at 259-60. Büchel asserts that MASS MoCA violated his right of attribution because the museum "use[d] [B]üchel'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."132 As discussed supra, there was no distortion, mutilation or other modification that was prejudicial to his honor or reputation. But even if there had been, Büchel fails to show that MASS MoCA ever attributed the materials to him or prevented him from claiming 132

Büchel's Brief, at 43.

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authorship of the Planned Installation. The museum did not post signs or otherwise attribute the covered unfinished work to Büchel. Even if MASS MoCA had shown the Planned Installation, it did not propose to attribute it to Büchel without Büchel's consent. Instead, as the District Court stated: "Defendant's name would have been formally associated with the project only to the extent that he chose, if at all." MASS MoCA, 565 F. Supp. 2d at 259. Accordingly, Büchel has failed to show that MASS MoCA violated any purported right of attribution. Nor was any right of attribution violated as a result of the publicity surrounding the controversy. Büchel argues that the record is replete with evidence of the extensive publicity relating to his dispute with MASS MoCA that associated Büchel with the unfinished work. Nonetheless, as Judge Ponsor noted, there is nothing in VARA to indicate that the publicity that surrounded the dispute somehow resulted in an actionable violation of any right of attribution: [I]f the perception of the artist's involvement in a project were enough, by itself and without any explicit attribution by the exhibitor, to trigger VARA protection, the potential reach of the statute would be so unpredictable that it would exceed Congress' proviso that this law be applied with restraint. Id. at 259-60 n.6 (emphasis in original). To the extent that MASS MoCA commented publicly on the dispute, the museum did so reasonably, in response to the need to inform its patrons regarding the status of a planned exhibit. Büchel cannot now claim that the publicity, much of which he generated by statements to

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the press and the public display of materials relating to the dispute, conferred upon him any additional rights or remedies.133 III.

MASS MOCA DID NOT VIOLATE ANY OF BÜCHEL'S RIGHTS UNDER THE COPYRIGHT ACT TO DISPLAY THE UNFINISHED WORK OR TO CREATE DERIVATIVE WORKS The District Court also correctly held that there was no violation of

any right to display the materials or any right to create derivative works. MASS MoCA, 565 F. Supp. 2d at 261. Büchel's third, fourth and fifth counterclaims assert causes of action under the Copyright Act for violations of his alleged right to display the materials and to create derivative works. Assuming that Büchel is the sole holder of the copyright in the unfinished work,134 he has nonetheless failed to establish any violation of his rights.

133

E.g., A. 2:785-92 (Büchel's statement to the Boston Globe setting forth the conditions under which he purportedly would return to MASS MoCA to complete the Planned Installation).

134

MASS MoCA and Büchel agreed that after the Planned Installation was finished, and after the public exhibition at MASS MoCA had concluded, MASS MoCA would give up any claim it had to the copyright in the finished work, and Büchel's sole title to any copyright would not be contested. A. 2:607. Büchel refused to finish the installation, and so that day never came. If the unfinished Planned Installation were held to constitute a joint work of Büchel and MASS MoCA, then Büchel and MASS MoCA co-own any copyright, and Büchel would have no copyright claim against MASS MoCA. See 17 U.S.C. § 201(a) (authors of joint work are "co-owners" of copyrights); accord Seshadri v. Kasraian, 130 F.3d 798, 803 (7th Cir. 1997) (Posner, Ch. J.) ("If a joint work is marred by errors reflecting unfavorably on his coauthor … the coauthor might conceivably have some legal remedy, but it wouldn't be under the Copyright (cont'd)

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The Planned Installation Was Not Publicly Displayed The holder of a copyright has the exclusive right to display his or her

work to the public. 17 U.S.C. § 106(5). The Copyright Act defines display as a showing of a copy of a work. 17 U.S.C. § 101. To publicly display an artwork is to "display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered." Id. For example, a district court has found that the use of a duck decoy in a hunt was not a "public display" within the meaning of the Copyright Act. Streeter v. Rolfe, 491 F. Supp. 416, 421 (W.D. La. 1980). Permitting museum patrons to walk past the obscured partial assemblies was not, as Büchel contends, a public display of those materials. The Planned Installation was never displayed: it remained under tarpaulins in order to prevent members of the public from observing the unfinished installation. This is simply not a case where a museum unveiled a finished artwork to the public in contravention of the copyright owner's wishes. MASS MoCA took reasonable steps, far beyond what was required under the law, to ensure that the public did not see a copy of the unfinished installation. Indeed, to find a public display any time a museum permits a member of the public to view a covered, unfinished ________________________ (cont'd from previous page)

Act."). The Court need not reach that issue to affirm the District Court's holding, however.

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installation would create an unworkable situation for that museum, especially for a museum such as MASS MoCA that frequently invites artists to fabricate works within the museum's gallery space, and, when appropriate, in view of the public. B.

MASS MoCA Is The Lawful Owner Of The Planned Installation And Would Have Been Entitled By The Copyright Act To Display The Work To The Public The Copyright Act plainly acknowledges that a person may own a

particular physical copy of a work even if another person holds the copyright to that work: Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. 17 U.S.C. § 202; accord id. § 106A(e)(2) (drawing same distinction under VARA). Ownership of a physical copy of work entitles the owner to publicly display the work: Notwithstanding the provisions of section 106(5) [granting the copyright holder the exclusive right to display a work], 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 … to viewers present at the place where the copy is located. 17 U.S.C. § 109(c).135

135

The term "copy," as used in this section and elsewhere in the Copyright Act, includes an original work. See 17 U.S.C. § 101 ("The term 'copies' includes the material object … in which the work is first fixed.").

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Here, there is no dispute that MASS MoCA legally owned the unfinished Planned Installation in Building 5, regardless of whether Büchel or anyone else holds any copyright in it. There is no dispute, nor could there be, that the installation's various components were either (i) purchased by MASS MoCA with its funds, (ii) donated to MASS MoCA, or (iii) constructed by MASS MoCA personnel and MASS MoCA's contractors from materials purchased by or donated to MASS MoCA. Büchel never sought to take possession of the components of the Planned Installation, nor did he ever instruct MASS MoCA to stop working on it.136 Accordingly, even assuming that Büchel were held to be the sole holder of any copyright in the Planned Installation, MASS MoCA -- as its legal owner -- was expressly entitled under the clear language of the Copyright Act to display them to the public, regardless of whether Büchel or anyone else objected. C.

No Derivative Work Was Created MASS MoCA did not violate Büchel's purported right to create

derivative works by placing tarpaulins over the unfinished installation or by working on the unfinished installation in accord with his instructions. 137 As the District Court correctly observed:

136 137

A. 1:33-34, 35 (Countercl. ¶¶ 9, 15). A. 1:43-45 (Countercl. ¶¶ 66-81).

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[I]n order for a party to violate the Copyright Act by appropriating another artist's right to create derivative works, the violating artist must, himself or herself, create an original, derivative work of art. MASS MoCA, 565 F. Supp. 2d at 259.138 No "original, derivative work of art," was created by MASS MoCA's actions. Under the Copyright Act, a copyright holder has the exclusive right to create derivative works from the copyrighted work. 17 U.S.C. § 106(2). A "derivative work" is a "work based upon one or more preexisting works, such as a translation ... or any other form in which a work may be recast, transformed, or adapted." 17 U.S.C. § 101. To constitute a derivative work, the work must have some minimum measure of creativity. See Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 345, 362-63 (1991) (finding that "there is nothing remotely creative about arranging names alphabetically in a white pages directory"). Simple physical modification of artwork without any artistic purpose does not meet that standard. For example, in Lee v. A.R.T. Co., the Seventh Circuit declined to find that note cards mounted onto ceramic tiles and covered with epoxy were derivative works of the copyrighted note cards. 125 F.3d 580, 582-83 (7th Cir. 1997). The 138

Büchel claims that there was "no legal or factual basis for the district court's conclusion" that there was no violation of any right to create derivative works under the Copyright Act. Büchel's Brief, at 52. Notwithstanding Büchel's displeasure with the holding, the District Court did set forth the applicable law, relevant undisputed facts, and correctly held that no derivative work was created. MASS MoCA, 565 F. Supp. 2d at 261.

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Seventh Circuit noted that to find a derivative work in that situation would open a backdoor to a broad version of moral rights "under which artists may block any modification of their works of which they disapprove." Id. at 582. Likewise, Büchel's attempt to craft a claim that MASS MoCA created a derivative work by either placing tarpaulins over the unfinished installation or by working towards the completion of the installation, would extend the meaning of a derivative work and moral rights in the United States beyond what Congress intended. First, no derivative work was created by placing tarpaulins over the unfinished installation in order to obscure it from view. There simply was no creativity involved in deciding to shroud the unfinished work from public view until the legal rights of all could be resolved. See, e.g., Feist, 499 U.S. at 362-63. It was a function of necessity, utility, and public safety, not creativity. No independent piece of art was created by shrouding the Planned Installation. Second, MASS MoCA did not create a derivative work by continuing work on the exhibit per Büchel's own instructions. From the outset, MASS MoCA personnel had been involved in fabricating the Planned Installation, as they had to be given the sheer scale of the project. Prior to his departure from North Adams in December 2006, Büchel provided instructions for MASS MoCA's continued work

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on the Planned Installation.139 MASS MoCA did not create a new "derivative" work by continuing to work on the Planned Installation in accord with Büchel's instructions and in anticipation of his return. CONCLUSION For the foregoing reasons, the order of the District Court should be affirmed in all respects.

Dated: April 2, 2009 Boston, Massachusetts

Of Counsel: John L. Gardiner Elizabeth A. Hellmann SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP Four Times Square New York, New York 10036 (212) 735-3000

Respectfully submitted,

/s/ Kurt Wm. Hemr Kurt Wm. Hemr (1st Cir. Bar No. 48253) Lindsay R. Dickerson (1st Cir. Bar No. 1134948) SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP One Beacon Street Boston, Massachusetts 02108 (617) 573-4800 Counsel for Plaintiff-Appellee Massachusetts Museum of Contemporary Art Foundation, Inc.

139

See, e.g., A. 2:675.

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CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 32(a) Certificate of Compliance with Type-Volume Limitation, Typeface Requirements, and Type-Style Requirements 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 13,853 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 this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman, 14 point. Dated: April 2, 2009

/s/ Kurt Wm. Hemr Kurt Wm. Hemr CERTIFICATE OF SERVICE

I, Kurt Wm. Hemr, hereby certify that on April 2, 2009, I caused two copies of the foregoing Brief Of Plaintiff-Appellee Massachusetts Museum Of Contemporary Art Foundation, Inc. to be served by overnight courier upon John C. Blessington and Sara E. Yevics, K&L Gates L.L.P., State Street Financial Center, One Lincoln Street, Boston, Massachusetts 02111, and by overnight courier upon George T. Conway III and Elaine P. Golin, Wachtell, Lipton, Rosen & Katz, 51 West 52nd Street, New York, New York 10019, counsel for defendant-appellant. Pursuant to Fed. R. App. P. 25(d)(2), I further certify that on April 2, 2009, I caused the original and nine copies (one of which being a computer readable disk pursuant to Local Rule 32) of the foregoing Brief Of PlaintiffAppellee Massachusetts Museum Of Contemporary Art Foundation, Inc. to be mailed to the Clerk of the United States Court of Appeals for the First Circuit by express mail. Dated: April 2, 2009

/s/ Kurt Wm. Hemr Kurt Wm. Hemr

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