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

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

PLAINTIFF MASS MoCA'S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

Kurt Wm. Hemr Paula-Marie Uscilla SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP One Beacon Street Boston, Massachusetts 02108 (617) 573-4800 [email protected] [email protected] John L. Gardiner Elizabeth A. Hellmann SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP Four Times Square New York, New York 10036 (212) 735-3000 [email protected] [email protected] Dated: August 31, 2007 Boston, Massachusetts

Counsel for Plaintiff Massachusetts Museum of Contemporary Art Foundation, Inc.

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TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ......................................................................................................... iii INTRODUCTION ...........................................................................................................................1 PROCEDURAL HISTORY.............................................................................................................3 STATEMENT OF UNDISPUTED FACTS ....................................................................................4 ARGUMENT...................................................................................................................................4 Preliminary Statement Regarding Ownership Of Copyright ...........................................................4 I.

II.

MASS MoCA IS ENTITLED TO THE DECLARATION IT SEEKS ...............................6 A.

MASS MoCA Is The Lawful Owner Of The Materials And Is Expressly Entitled By The Copyright Act To Display Them To The Public...........................6

B.

VARA Does Not Bar Display Of The Materials .....................................................7

DISPLAY OF UNFINISHED MATERIALS DOES NOT CONSTITUTE "DISTORTION, MUTILATION, OR MODIFICATION" UNDER VARA ......................9 A.

VARA Does Not Bar Display Of Unfinished Work................................................9

B.

The Copyright Act Is Explicit That It Does Not Protect Hypothetical Future Work ...........................................................................................................10

III.

WORK BY MASS MoCA PERSONNEL TO CARRY OUT BÜCHEL'S PLANS FOR THE PLANNED INSTALLATION DOES NOT CONSTITUTE "DISTORTION, MUTILATION, OR MODIFICATION" UNDER VARA ....................11

IV.

BÜCHEL CANNOT SHOW THAT ANY PURPORTED "DISTORTION" OF THE MATERIALS "WOULD BE PREJUDICIAL TO HIS HONOR OR REPUTATION".................................................................................................................14

V.

MASS MoCA IS ENTITLED TO JUDGMENT AS A MATTER OF LAW DISMISSING EACH OF BÜCHEL'S COUNTERCLAIMS............................................16 A.

MASS MoCA Is Entitled To Judgment In Its Favor On Büchel's First Counterclaim..........................................................................................................16

B.

MASS MoCA Is Entitled To Judgment In Its Favor On Büchel's Second Counterclaim..........................................................................................................16

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PAGE C.

MASS MoCA Is Entitled To Judgment In Its Favor On Büchel's Third Counterclaim..........................................................................................................18

D.

MASS MoCA Is Entitled To Judgment In Its Favor On Büchel's Fourth And Fifth Counterclaims........................................................................................18

CONCLUSION..............................................................................................................................20

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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), cert. denied, 517 U.S. 1208, 116 S. Ct. 1824 (1996) ..........................................................9 , 10 Fisher v. Klein, 16 U.S.P.Q.2d 1795 (S.D.N.Y. 1990)...................................................................11, 12 Flack v. Friends of Queen Catherine Inc., 139 F. Supp. 2d 526 (S.D.N.Y. 2001)..............................10 Lee v. Deck The Walls, Inc., 925 F. Supp. 576 (N.D. Ill. 1996), aff'd, 125 F.3d 580 (7th Cir. 1997)......................................................................................................19 Paramount Pictures Corp. v. Video Broad. Sys., Inc., 724 F. Supp. 808 (D. Kan. 1989)..............................................................................................19 Partelow v. Massachusetts, 442 F. Supp. 2d 41 (D. Mass. 2006)....................................................4 Seshadri v. Kasraian, 130 F.3d 798 (7th Cir. 1997) .........................................................................5 STATUTES

PAGE(S)

Copyright Act § 101, 17 U.S.C. § 101 ....................................................................... 5, 7, 10, 11, 13, 18 Copyright Act § 102(a), 17 U.S.C. § 102(a) .........................................................................................10 Copyright Act § 106, 17 U.S.C. § 106 ........................................................................................7, 18, 19 Copyright Act § 109(c), 17 U.S.C. § 109(c) .....................................................................................7, 18 Copyright Act § 201(a), 17 U.S.C. § 201(a) ...........................................................................................5 Copyright Act § 202, 17 U.S.C. § 202 ....................................................................................................6 Copyright Act § 501(b), 17 U.S.C. § 501(b).........................................................................................13 Visual Artists Rights Act of 1990, 17 U.S.C. § 106A ........................................................... passim TREATY

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Berne Convention For The Protection Of Literary And Artistic Works, Paris Act, July 24, 1971, 25 U.S.T. 1341, 828 U.N.T.S. 221, reprinted at 17 U.S.C.A. § 104 ....................................................................................7, 9, 14

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PAGE(S)

Fed. R. Civ. P. 56.............................................................................................................................4 LEGISLATIVE HISTORY

PAGE(S)

133 Cong. Rec. E4257 (Oct. 29, 1987) (statement of Rep. Markey).............................................17 133 Cong. Rec. S17370 (Dec. 4, 1987) (statement of Sen. Pell)...................................................17 133 Cong. Rec. E4954 (Dec. 21, 1987) (statement of Rep. Frank) ...............................................17 135 Cong. Rec. S6811 (June 16, 1989) (statement of Sen. Kennedy)...........................................17 H.R. Rep. No. 101-514 (June 1, 1990), reprinted at 1990 U.S.C.C.A.N. 6915.......................14, 15 ARTICLES

PAGE(S)

Schuyler Chapin & Alberta Arthurs, A Bill Of Rights For Arts, N.Y. Times, Oct. 29, 1987 .................................................................................................17 Rep. Edward J. Markey, Let Artists Have A Fair Share Of Their Profits, N.Y. Times, Dec. 20, 1987 ................................................................................................17 Cyrill P. Rigamonti, Deconstructing Moral Rights, 47 Harv. Int'l L. J. 353 (2006) ................8, 10 Marina Santilli, United States' Moral Rights Developments In European Perspective, 1 Marq. Intell. Prop. L. Rev. 89 (1997) ...........................................................................8, 9

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INTRODUCTION In 2005 and 2006, plaintiff Massachusetts Museum of Contemporary Art Foundation, Inc. ("MASS MoCA") and defendant Christoph Büchel ("Büchel"), a Swiss artist, planned an installation for MASS MoCA's football-field-sized "Building 5," the museum's premier gallery space. In the fall of 2006, MASS MoCA and Büchel agreed on a budget and an opening date (December 16, 2006), and MASS MoCA personnel went to work gathering materials and building constructions for the planned installation. MASS MoCA fully held up its end of that agreement, and more so. It expended more than double the agreed-upon budget. MASS MoCA's personnel, working at Büchel's direction, but at its own expense, purchased, procured, and built massive constructions in the Building 5 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, an entire two-story house, and 40 tons of cinder block and mortar walls. Büchel, on the other hand, did not live up to the parties' agreement. He was months late in providing MASS MoCA with even a preliminary sketch of the planned installation. He repeatedly promised to come to North Adams 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" once, not only demanding that MASS MoCA announce that the installation's agreedupon opening date would be delayed, but also demanding that the museum falsely state that it alone was responsible for the delay. On December 17, 2006, Büchel left MASS MoCA and the project, and never returned. MASS MoCA's extensive efforts to convince Büchel to return to finish the planned installation did not succeed. Ultimately, MASS MoCA sought a declaration from this Court that it was entitled to display the materials and partial constructions assembled in Building 5 (the 1

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"Materials") to guests of the museum. In the interim, in light of Büchel's assertions that any display of the Materials would violate his rights, MASS MoCA covered the Materials with tarps and other measures designed to obstruct public view of and access to the Materials. In response to MASS MoCA's complaint, Büchel asserted counterclaims against MASS MoCA, demanding that MASS MoCA pay him (in his words) "a very very big amount of money."1 Not only is Büchel not entitled to any (let alone "a very very big amount of") money damages, MASS MoCA is entitled to the declaration it seeks based on clear stated law that cannot reasonably be questioned. The U.S. Copyright Act expressly states that the legal owner of the Materials -- here, MASS MoCA, which paid for, procured and/or built the Materials -- has the right to display them to the public, even if Büchel would prefer otherwise. Nor does the Visual Artists Rights Act of 1990 ("VARA")2 operate as a bar to the public display of the Materials. VARA provides visual artists with important rights with respect to their work, but VARA does not grant artists the right to decide whether a museum may display materials assembled in connection with an abandoned exhibition. Nor does VARA bar the display of unfinished work. Additionally, VARA does not regulate or extend to the arrangements visual artists make with the persons who assist them in executing their designs. If Büchel wanted to avoid the display of the unfinished Materials, or if he was unhappy with the work performed on the Materials at his direction, his remedies were to return to work on the planned installation so that it could be displayed in finished form, or alternatively to reimburse MASS MoCA for its costs and take the Materials away from MASS MoCA. MASS MoCA offered Büchel substantial additional resources and logistical support to finish the installation,

1

See p. 16 infra.

2

VARA was principally codified as § 106A of the Copyright Act, 17 U.S.C. § 101 et seq., and is therefore itself part of the Copyright Act.

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and also offered him the opportunity to reimburse MASS MoCA for its costs and take the Materials away. Büchel's refusal either to finish what he started or to compensate MASS MoCA for the Materials and remove them does not entitle him to relief under VARA. As a matter of law and undisputed fact, MASS MoCA should be granted the declaration it seeks, and each of Büchel's Counterclaims should be dismissed with prejudice. PROCEDURAL HISTORY Pleadings Filed By The Parties. On May 21, 2007, MASS MoCA commenced this action by filing its complaint seeking a declaration that it was entitled to display the Materials assembled in Building 5. (Docket No. 1.) On July 2, 2007, Büchel answered that complaint, and asserted counterclaims seeking money damages and declaratory and injunctive relief prohibiting MASS MoCA from displaying the Materials to the public (the "Counterclaims"). (Docket No. 7.) On July 12, 2007, MASS MoCA filed its reply to the Counterclaims. (Docket No. 14.) The Court Orders An Expedited Schedule And Limited Discovery. On July 3, 2007, MASS MoCA moved this Court for an expedited schedule in this action. (Docket No. 9.) At the hearing on that motion on July 13, 2007, this Court granted an expedited schedule which provided both parties with limited document and deposition discovery. (Docket No. 15.) On August 13, 2007, MASS MoCA moved for a protective order to limit the use of certain confidential documents that it had produced in discovery, and to prevent anticipated commercial exploitation of discovery material by Büchel. (Docket Nos. 18-19.) The following day, Büchel moved the Court to extend the scheduling order that it had previously entered and to permit the continued deposition of Joseph Thompson, Director of MASS MoCA. (Docket Nos. 20-22.) After a hearing on August 17, 2007, this Court (per Neiman, Mag. J.) granted both motions in part. In particular, the Court (1) limited the use of video recordings of depositions to 3

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this case only; (2) allowed a further half-day's deposition of Mr. Thompson; and (3) adjusted the briefing schedule previously set by the Court. (Docket Nos. 26, 27.) The further half-day deposition of Mr. Thompson was completed on August 23, 2007. STATEMENT OF UNDISPUTED FACTS MASS MoCA refers the Court to its Local Rule 56.1 Statement Of Material Facts As To Which There Is No Genuine Issue To Be Tried filed herewith.3 ARGUMENT This Court recently stated the standard applicable to motions for summary judgment under Fed. R. Civ. P. 56 as follows: Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Establishing the existence of a genuine issue requires "more than simply show[ing] that there is some metaphysical doubt as to the material facts." Instead, the nonmoving party must present "enough competent evidence" to permit a rational trier of fact to find in his favor. As the First Circuit has frequently noted, "evidence illustrating the factual controversy cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve." Partelow v. Massachusetts, 442 F. Supp. 2d 41, 46-47 (D. Mass. 2006) (case citations omitted). As demonstrated below, as a matter of law and undisputed fact, MASS MoCA is entitled to the declaration it seeks here, and to the dismissal with prejudice of each of Büchel's Counterclaims. Preliminary Statement Regarding Ownership Of Copyright It is undisputed that MASS MoCA and Büchel had agreed that after the planned installation was finished, and after the public exhibition period at MASS MoCA had concluded, MASS MoCA would give up any claim it had to the copyright in the finished work, and Büchel's 3

References to "56.1 Stmt." herein are to that Statement. References to "Trans. Aff." herein refer to the Transmittal Affidavit Of Kurt Wm. Hemr, Esq., filed herewith.

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sole title to any copyright in the completed work would not be contested. (Trans. Aff. Ex. 16, at MASS MoCA 08314.) Of course, Büchel refused to finish the installation, and so that day never came. Nonetheless, Büchel asserts that he is already the sole owner of any copyright in the Materials for purposes of the Copyright Act and VARA, and that MASS MoCA does not own any part of any copyright in the Materials. (56.1 Stmt. ¶ 95.) The Materials as they now stand reflect significant aesthetic and design choices by MASS MoCA personnel, including with respect to the layout of the Materials (56.1 Stmt. ¶¶ 97-99), and with respect to the selection and procurement of pre-existing buildings and vehicles that have been modified and incorporated into the Materials. (Id. ¶¶ 96, 100.) If the Materials in their current form constitute a joint work4 of Büchel and MASS MoCA, then Büchel and MASS MoCA co-own any copyright or VARA rights to the Materials, and it would follow that Büchel would have no copyright or VARA claim against MASS MoCA. See 17 U.S.C. § 201(a) (authors of joint work are "coowners" of copyrights); id. § 106A(b) (similarly as to VARA rights); 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 Act."). However, as demonstrated below, Büchel's claims are without any legal or factual basis even if he were held to be the sole owner of any copyright in the Materials. The Court may therefore grant summary judgment in MASS MoCA's favor here on its claim for declaratory relief and on each of Büchel's Counterclaims without resolving that issue.5 For that reason,

4

" A 'joint work' is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole." 17 U.S.C. § 101. 5

It should be noted that the same does not hold true with respect to any motion for summary judgment in Büchel's favor. To establish a right to relief on any of his Counterclaims, 5

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MASS MoCA assumes arguendo in the discussion which follows that Büchel is the sole owner of any copyright in the Materials (but reserves all of its rights to dispute that contention). I.

MASS MoCA IS ENTITLED TO THE DECLARATION IT SEEKS A.

MASS MoCA Is The Lawful Owner Of The Materials And Is Expressly Entitled By The Copyright Act To Display Them 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). Here, there is no dispute that MASS MoCA is the legal owner of the Materials in Building 5, regardless of whether Büchel or anyone else holds any copyright in those Materials. There is no dispute, nor could there be, that the various components of the Materials 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 has never sought to take possession of the Materials, nor has he otherwise asserted that he is the rightful owner of the Materials. (56.1 Stmt. ¶¶ 91-94.)6 Accordingly, even assuming arguendo that Büchel were held to be the sole holder of any copyright in the Materials, MASS MoCA -- as the legal owner of the Materials -- is expressly

Büchel would have to show as a matter of law and undisputed fact that he is the sole owner of any copyright in the Materials, and not a coowner with MASS MoCA. 6

Nor could he be. As noted above, the parties agreed that after the installation had been completed and fully exhibited, title to the completed work and any copyright therein would pass to Büchel at the end of the exhibition period. (Trans. Aff. Ex. 16, at MASS MoCA 08314 ("Upon termination of the exhibition, the fabricated work shall be owned outright by you …").) This recognizes that before that point, Büchel enjoyed no such ownership rights.

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entitled under the clear language of the Copyright Act to display them to the public, regardless of whether Büchel or anyone else objects: 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) (emphasis added). (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.").) B.

VARA Does Not Bar Display Of The Materials A visual artist's rights to control the treatment of a work of visual art that are

independent of the artist's rights to sell or otherwise make economic use of the work are called "moral rights." Moral rights are recognized by Article 6bis of the Berne Convention, an international convention on intellectual property to which the United States is a party.7 Subsection (1) of Article 6bis of the Berne Convention provides: Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation. Significantly, Article 6bis does not grant artists a right to prevent the display of their work (a so-called "right of disclosure"). Article 19 of the Berne Convention recognizes that nations may grant rights in addition to those provided by the Convention, such as the right of disclosure,

7

The Berne Convention For The Protection Of Literary And Artistic Works, Paris Act, July 24, 1971, 25 U.S.T. 1341, 828 U.N.T.S. 221, reprinted at 17 U.S.C.A. § 104 (hereinafter "Berne Convention").

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and some nations (e.g., France) recognize such rights. But VARA does not. Nothing in VARA restricts MASS MoCA from showing the Materials.8 Nor would the display of the Materials by MASS MoCA violate any of the rights of attribution and integrity that VARA does grant to authors. The following addresses Büchel's purported objections to MASS MoCA's display of the Materials and MASS MoCA's responses: Right granted to authors by VARA ...

… and why MASS MoCA's display of the Materials would not violate that right:

§ 106A(a)(1): "… (A) to claim authorship of [a] work, [or] (B) 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."

MASS MoCA is not seeking to deny or credit authorship of the Materials to Büchel. MASS MoCA will do whatever Büchel prefers in that regard, and wants to be fair and entirely transparent in any description of the Materials and Büchel's view of or relationship to those Materials. MASS MoCA is simply seeking the right to display the Materials.

§ 106A(a)(2): "… to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation."

Again, MASS MoCA is not seeking to credit authorship of the Materials to Büchel: again, MASS MoCA will do whatever Büchel prefers in that regard. MASS MoCA is simply seeking the right to display the Materials. In any event, there has been no "distortion, mutilation, or other modification" for purposes of VARA: showing unfinished work does not violate VARA (see Part II infra), nor does work performed by MASS MoCA personnel on the Materials constitute a VARA violation. (See Part III infra.) Nor can Büchel show that any prejudice to his "honor or reputation" would result if the Materials are displayed to the public. (See Part IV infra.)

8

See Cyrill P. Rigamonti, Deconstructing Moral Rights, 47 Harv. Int'l L. J. 353, 405 (2006) ("VARA ignores the rights of disclosure and withdrawal and instead focuses on the rights of attribution and integrity"); Marina Santilli, United States' Moral Rights Developments In European Perspective, 1 Marq. Intell. Prop. L. Rev. 89, 93 (1997) ("The right of disclosure does not exist under VARA's formulation …").

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Right granted to authors by VARA ...

… and why MASS MoCA's display of the Materials would not violate that right:

§ 106A(a)(3)(A):9 "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 …"

There has been no "distortion, mutilation, or other modification" for purposes of VARA: showing unfinished work does not violate VARA (see Part II infra), nor does work by MASS MoCA personnel on the Materials constitute a VARA violation. (See Part III infra.)

Accordingly, for all of the foregoing reasons, MASS MoCA is entitled to a declaration that it may display the Materials. II.

DISPLAY OF UNFINISHED MATERIALS DOES NOT CONSTITUTE "DISTORTION, MUTILATION, OR MODIFICATION" UNDER VARA At the July 13, 2007 hearing in this matter, Büchel's counsel asserted: Showing a work that is half finished or not finished is an inherent distortion which injures one's reputation.

(Hearing Tr. 40:19-21 (Docket No. 19).) There is no basis for that contention in VARA, and indeed it is squarely contrary to the express language of the Copyright Act. A.

VARA Does Not Bar Display Of Unfinished Work In addition to the rights granted by Article 6bis of the Berne Convention, some

countries grant visual artists a right to complete unfinished work and to prevent the display of unfinished work (again, France is an example). VARA does not grant such a right. See Santilli, supra, 1 Marq. Intell. Prop. L. Rev. at 93 ("American courts also have not followed the insight that an incomplete work may be considered an impairment of the artist's right of integrity"). The Southern District of New York has rejected claims that VARA provides a right against the display of a work that the artist did not complete. 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), cert. denied, 517 U.S. 9

Another right granted by VARA is the right "to prevent any destruction of a work of recognized stature," 17 U.S.C. § 106A(a)(3)(B), which is presumably not at issue here.

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1208, 116 S. Ct. 1824 (1996) ("VARA mandates preservation of protected art work and the protection of artists' moral rights. … defendants' refusal to permit plaintiffs to 'finish' the Work does not constitute 'distortion, mutilation, or other modification'"); see also Flack v. Friends of Queen Catherine Inc., 139 F. Supp. 2d 526, 545 (S.D.N.Y. 2001) (citing Carter; "VARA most decidedly does not cover works that do not yet exist."). Accordingly, VARA does not bar MASS MoCA from showing the Materials on the ground that they are unfinished.10 B.

The Copyright Act Is Explicit That It Does Not Protect Hypothetical Future Work It is common in ordinary speech to talk about a work of art that has not yet been

completed as if it already existed in its complete form (e.g., "Some scenes in the next James Bond film take place during a horse race in Siena, Italy."). In that informal way of speaking, it might make sense to talk about an unfinished work as though it were a distorted or inferior version of a complete work that may exist at some future date (e.g., "I haven't seen the film, only a rough cut."). However, the Copyright Act is very clear that it does not protect works that do not yet exist, although they might hypothetically be created in the future. The Copyright Act only protects works that have actually been "fixed in [a] tangible medium of expression." 17 U.S.C. § 102(a) ("Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression" (emphasis added)). Accordingly, no "work" is protected by the Copyright Act other than in the form in which it actually exists, even though it may be unfinished: "[W]here a work is prepared over a 10

Reading VARA to provide a right against the display of unfinished work would be problematic for the further reason that such a reading would render it impossible to admit the public to places where works of visual art are created -- as MASS MoCA and other museums routinely do -- without violating VARA. Nor could an artist sign a blanket waiver generally permitting public viewing of the work in progress: under VARA, "blanket waivers are unenforceable." See Rigamonti, supra, 47 Harv. Int'l L. J. at 406; see also 17 U.S.C. § 106A(e)(1) (setting forth criteria for satisfactory VARA waiver).

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period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time." Id. § 101 (definition of "created"). It is therefore impossible to read VARA as treating an unfinished work as a "distortion, mutilation, or other modification" of "work" that does not yet exist, because the only "work" that VARA protects is the work that actually exists. The theory articulated by Büchel's counsel that reads VARA to protect a hypothetical future work by preventing the display of a work that does exist simply cannot be reconciled with the plain language of the Copyright Act, and must be rejected. III.

WORK BY MASS MoCA PERSONNEL TO CARRY OUT BÜCHEL'S PLANS FOR THE PLANNED INSTALLATION DOES NOT CONSTITUTE "DISTORTION, MUTILATION, OR MODIFICATION" UNDER VARA The Copyright Act is clear that an author creating a work protected by the Act may

cause that work to be embodied in a particular medium through the work 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 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

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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). That is of course exactly what happened here. MASS MoCA, pursuant to the agreement of the parties, made "fabricators, engineers, riggers, shop laborers, technicians [and] subcontractors," including a number of full-time museum personnel, available to Büchel so that he could build the planned installation. (Trans. Aff. Tab. 16 at MASS MoCA 08315; see also 56.1 Stmt. ¶¶ 7(a), 9, 25, 31-32, 43-46.) Büchel corresponded with MASS MoCA personnel regarding their progress by e-mail and otherwise when he was not present in North Adams, and he supervised them directly on the occasions that he actually was at MASS MoCA. (56.1 Stmt. ¶¶ 25, 31-32.) Even after Büchel left MASS MoCA in mid-December 2006, he continued to correspond with MASS MoCA personnel working on the planned installation. (56.1 Stmt. ¶¶ 4346.) Significantly, Büchel never advised MASS MoCA that its personnel should stop working on the planned installation. (56.1 Stmt. ¶ 67.) Not surprisingly, Büchel was sometimes unsatisfied with the results of the work performed by MASS MoCA personnel and MASS MoCA's contractors. Sometimes Büchel felt that the work was not done in precisely the manner that he had instructed, and sometimes he had changed his mind about what should be done. In such cases, Büchel typically instructed MASS MoCA personnel as to what corrective action he thought they should take. (56.1 Stmt. ¶ 32.) And though MASS MoCA personnel frequently were called upon to use their discretion in implementing Büchel's instructions, there is no evidence that they ever performed work on the planned installation with the intention of making changes that they knew were contrary to Büchel's intentions. (See id. ¶¶ 44-45, 61, 71.)

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Now Büchel appears to contend that VARA actually 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 signed, written document satisfying the requirements set forth in subsection (e)(1) of VARA, 17 U.S.C. § 106A(e)(1).11 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, 17 U.S.C. § 106A(a)(3)(A), and would be liable to the artist for damages. See id. § 501(b). MASS MoCA is not aware of any court or recognized authority on copyright law 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. Nor is MASS MoCA aware of any such authority that holds that VARA was intended to supersede the Copyright Act's express recognition that the author of a work may cause that work to be embodied with the assistance of persons acting "under the authority of the author." 17 U.S.C. § 101. And for good reason: application of that theory would impose an enormous and impractical logistical burden that would make the creation of large-scale installations of the type contemplated here impossible to execute. Indeed, adoption of that theory would have a "chilling effect" discouraging future installations of this type, in that 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.

11

That documentation problem could not be addressed by having the artist sign a blanket waiver: as noted above, blanket waivers are not enforceable under VARA. See p. 10 n.10 supra.

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The legislative history of VARA makes clear that VARA was intended to grant artists in the United States rights (similar, albeit not identical, to rights granted by other countries) against the distortion, mutilation or modification of visual art subsequent to the process by which the art itself is created. See H.R. Rep. No. 101-514, at 6 (June 1, 1990) ("House Report On VARA"), reprinted at 1990 U.S.C.C.A.N. 6915, 6916 (quoting statement of Weltzin B. Blix of the National Artists Equity Association, noting the possibility that "the fruits of [an artist's] effort will be destroyed after a mere ten to twenty years" (emphasis added)); id. at 8, reprinted at 1990 U.S.C.C.A.N. at 6918 ("Under the American copyright system, an artist who transfers a copy of his or her work to another may not, absent a contractual agreement, prevent that person from destroying the copy or collect damages after the fact."). Nothing in that legislative history suggests that Congress' intent was to make artists' routine disputes with those who assist them in creating their work during the time that the work is being created a subject of federal copyright law.12 Nor should the Court adopt that novel, illogical, and unsupported theory. IV.

BÜCHEL CANNOT SHOW THAT ANY PURPORTED "DISTORTION" OF THE MATERIALS "WOULD BE PREJUDICIAL TO HIS HONOR OR REPUTATION" Even assuming arguendo that VARA were applicable to work performed by MASS

MoCA personnel in an effort to carry out Büchel's instructions with respect to the planned installation, and further assuming arguendo that some part of that work constituted a "distortion"

12

Application of Büchel's theory would be contrary to Congress' clear intent in enacting VARA for the further reason that VARA was intended to bring the United States into conformance with Article 6bis of the Berne Convention.12 See House Report On VARA, at 10, reprinted at 1990 U.S.C.C.A.N. at 6920 (noting that enacting VARA "serves another important Berne objective -- that of harmonizing national copyright laws"). Nothing in the Berne Convention purports to grant artists rights against their assistants or other persons who help them create works of visual art during the time that the work is being created. Interpreting VARA to grant artists previously unrecognized rights with respect to the processes by which they create their works would not "harmonize" U.S. copyright law with the law of other countries.

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within the meaning of VARA, Büchel cannot adduce any evidence that any such purported distortion "would be prejudicial to his honor or reputation" for purposes of VARA. 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." 13 An artist's selfserving claim that he or she is unhappy with a purported "distortion" of a work does not satisfy that element of the statute. Here, it is widely known that Büchel did not complete the planned installation, and that the Materials do not constitute a finished work by Büchel. (56.1 Stmt. ¶ 88.) Accordingly, to prove that any purported "distortion" on the part of MASS MoCA was "prejudicial to his honor or reputation," Büchel would have to present evidence that the artistic community actually considered that purportedly "distorted" aspect of the Materials to be the result of some artistic misjudgment on his part, rather than simply a consequence of the unfinished nature of the Materials.14 Büchel cannot make that showing here. (Indeed, the apparent impossibility of making that showing with respect to visual art that is universally known to be unfinished confirms that it is unworkable to read VARA as governing disputes relating solely to the process by which visual art is created.) To be sure, Büchel's own efforts to draw attention to this controversy, including by offering for sale as artwork court filings and correspondence related to this dispute (see, e.g., Trans. Aff. Ex. 3, Büchel Dep. Tr. 188:2-198:12; Ex. 80, at 5-6 (report on ArtInfo.com)), confirms that Büchel himself does not genuinely believe that display of the Materials would be injurious to his artistic career or otherwise "prejudicial to his honor or reputation."

13

See House Report On VARA, at 16, reprinted at 1990 U.S.C.C.A.N. at 6926 (noting that "Rules 701-706 of the Federal Rules of Evidence permit expert testimony on the issue of whether the modification affects the artist's honor or reputation"). 14

For the reasons discussed in Part II supra, the fact that the Materials are not a finished work does not constitute a "distortion" under VARA.

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V.

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MASS MoCA IS ENTITLED TO JUDGMENT AS A MATTER OF LAW DISMISSING EACH OF BÜCHEL'S COUNTERCLAIMS In March 2007, Büchel privately described his strategy for avoiding any

responsibility for the failure to complete the planned installation at MASS MoCA: 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 … (56.1 Stmt. ¶ 65, quoting Trans. Aff. Ex. 66.) Büchel followed through on this strategy in July 2007, when he asserted five counterclaims against MASS MoCA, four of which seek the payment of money damages by MASS MoCA. For the reasons explained below, all of those counterclaims lack any merit whatsoever, and judgment should be entered in MASS MoCA's favor on each of them. A.

MASS MoCA Is Entitled To Judgment In Its Favor On Büchel's First Counterclaim By his First Counterclaim, Büchel seeks a declaration which is a mirror image of

MASS MoCA's claim for declaratory relief, i.e., that MASS MoCA is not entitled to show the Materials. For the reasons stated in Parts I through IV supra, Büchel is not entitled to such a declaration, judgment should enter in favor of MASS MoCA on that claim as a matter of law. B.

MASS MoCA Is Entitled To Judgment In Its Favor On Büchel's Second Counterclaim By his Second Counterclaim, Büchel seeks damages for three purported violations

of VARA. There has been no violation, and he is entitled to no relief. First, Büchel asserts that MASS MoCA "has intentionally distorted and modified the [Materials] in various ways … in a manner prejudicial to Büchel's reputation." (Countercl. ¶ 52.) This allegation presumably refers to work that MASS MoCA personnel performed on the planned installation in the expectation that Büchel would return to complete it. For the reasons stated in

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Parts III and IV supra, that work does not constitute "distortion" or "modification" for purposes of VARA, nor can Büchel show any prejudice to his reputation resulting from that work. Second, Büchel asserts that MASS MoCA's use of tarps and other measures to restrict public view of the Materials "distorted and modified" the Materials "in a manner prejudicial to his reputation." (Countercl. ¶ 55; see also id. ¶ 53.) That is absurd, and entirely unsupportable: simply covering up the Materials does not constitute a "distortion" or "modification" of the Materials. The tarps and other measures are temporary, do not physically modify or harm the Materials, and are entirely reversible. (56.1 Stmt ¶ 87.) Cf. House Report On VARA, at 17, reprinted at 1990 U.S.C.C.A.N. at 6927 (noting that it is "physical modification" that is actionable under VARA; e.g., a "shopping center that temporarily bedecked a sculpture of geese in flight with ribbons at Christmas time" would not violate VARA).15 In any event, Büchel cannot show any prejudice to his reputation resulting from those measures: everyone who sees those measures knows that they were erected by MASS MoCA, not by Büchel, and that they are not actually part of the Materials. (56.1 Stmt. ¶ 84.) Third, Büchel asserts that MASS MoCA "has also allowed numerous individuals to see and pass through" the Materials. (Countercl. ¶ 54.) For the reasons explained in Part II above, the display of unfinished Materials itself does not constitute a violation of VARA. Nor does Büchel 15

Other statements from the legislative history confirm that VARA was directed at preventing permanent damage to works of visual art, rather than ephemeral aspects of presentation. E.g., 135 Cong. Rec. S6811 (June 16, 1989) (statement of Sen. Kennedy: "This bill addresses a narrow and specific problem -- the mutilation and destruction of works of fine art which are often one-of-a-kind and irreplaceable."); 133 Cong. Rec. S17370 (Dec. 4, 1987) (statement of Sen. Pell, quoting Schuyler Chapin & Alberta Arthurs, A Bill Of Rights For Arts, N.Y. Times, Oct. 29, 1987: "We don't want owners … to mutilate or destroy what they own."); 133 Cong. Rec. E4257 (Oct. 29, 1987) (statement of Rep. Markey quoting Chapin & Arthurs, supra); 133 Cong. Rec. E4954 (Dec. 21, 1987) (statement of Rep. Frank quoting Rep. Edward J. Markey, Let Artists Have A Fair Share Of Their Profits, N.Y. Times, Dec. 20, 1987, which recounts a case in which a mail-order firm cut up an original Picasso print into 500 one-inch square pieces for mail-order sale).

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have any other kind of claim against MASS MoCA in this respect: MASS MoCA never agreed, and would not have agreed, that no one would see Büchel's work in progress. In fact, Büchel was present on several occasions during which visitors looked at the Materials, and even met with some of those visitors. (56.1 Stmt. ¶¶ 83-85; Trans. Aff. Ex. 38 (e-mail to MASS MoCA director Thompson expressing thanks for tour and opportunity to meet Büchel).) His new claim that he was always opposed to any public view of the Materials simply cannot be credited. Accordingly, judgment should enter in favor of MASS MoCA on Büchel's Second Counterclaim as a matter of law. C.

MASS MoCA Is Entitled To Judgment In Its Favor On Büchel's Third Counterclaim By his Third Counterclaim, Büchel seeks damages for a purported violation of his

exclusive right under 17 U.S.C. § 106(5) as the copyright holder of the Materials to display those Materials. For the reasons explained in Part I supra, MASS MoCA has the right to publicly display those materials "[n]otwithstanding the provisions of section 106(5)." 17 U.S.C. § 109(c). Accordingly, judgment should enter in favor of MASS MoCA on Büchel's Third Counterclaim as a matter of law. D.

MASS MoCA Is Entitled To Judgment In Its Favor On Büchel's Fourth And Fifth Counterclaims By his Fourth Counterclaim, Büchel seeks damages for a purported violation of his

exclusive right under 17 U.S.C. § 106(2) as the copyright holder of the Materials to create derivative works based on those Materials, presumably either (i) by reason of the work that MASS MoCA personnel performed on the planned installation in the expectation that Büchel would return to complete it or (ii) the use of tarps and other view-restricting measures. A "derivative work" is a work that "recast[s], transform[s], or adapt[s]" a prior work to create a new work. 17 U.S.C. § 101. MASS MoCA's work on the Materials did not "recast[], 18

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transform[], or adapt[]" any pre-existing work by Büchel. Indeed, the Materials would not exist in the first place but for the work performed by MASS MoCA personnel pursuant to Büchel's directions. Nor did MASS MoCA's use of tarps and other view-restricting measures "recast[], transform[], or adapt[]" the Materials. A change in the presentation of a copyrighted work that is devoid of any creative content -- here, simply covering the work up -- does not result in the creation of a derivative work. E.g., Paramount Pictures Corp. v. Video Broad. Sys., Inc., 724 F. Supp. 808, 821 (D. Kan. 1989) (addition of commercials to beginning of videocassettes containing copyrighted motion pictures did not create derivative works); accord Lee v. Deck The Walls, Inc., 925 F. Supp. 576, 580-81 (N.D. Ill. 1996), aff'd, 125 F.3d 580 (7th Cir. 1997) (affixing copyrighted notecard to ceramic tile did not create derivative work, citing Paramount; "No intellectual effort or creativity was necessary to transfer the notecard to the tile."). Accordingly, judgment should enter in favor of MASS MoCA on Büchel's Fourth Counterclaim as a matter of law. (Büchel's Fifth Counterclaim is identical to his Fourth Counterclaim, except that it is based upon his alleged right under 17 U.S.C. § 106(2) as the copyright holder in a model and plans that he and MASS MoCA created for the planned installation. (See 56.1 Stmt. ¶¶ 23-24.) Assuming arguendo that Büchel were the sole holder of any copyright in the model and plans, Büchel indisputably authorized MASS MoCA to commence work on the planned installation based on the model and plans. Thus, to the extent that this counterclaim is based on (i) subsequent work by MASS MoCA personnel on the Materials, or (ii) the use of the tarps and other view-restricting measures, it is identical to his Fourth Counterclaim. Accordingly, judgment should likewise enter in favor of MASS MoCA on Büchel's Fifth Counterclaim as a matter of law.)

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CONCLUSION For the foregoing reasons, the Court should grant MASS MoCA's Motion in its entirety, enter judgment as a matter of law in favor of MASS MoCA on its claim for declaratory judgment, and dismiss each of Büchel's Counterclaims with prejudice. Dated: August 31, 2007 Boston, Massachusetts

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

I, Kurt Wm. Hemr, hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing ("NEF"), and paper copies will be sent to those indicated as non-registered participants on August 31, 2007. Dated: August 31, 2007

/s/ Kurt Wm. Hemr Kurt Wm. Hemr

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