Reply Brief For Christoph Buchel

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No. 08-2199

d IN THE

United States Court of Appeals FOR THE FIRST CIRCUIT

MASSACHUSETTS MUSEUM

OF

CONTEMPORARY ART FOUNDATION, INC., Plaintiff-Appellee, —v.—

CHRISTOPH BÜCHEL, Defendant-Appellant. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

REPLY BRIEF FOR DEFENDANT-APPELLANT CHRISTOPH BÜCHEL

George T. Conway III (No. 88538) Elaine P. Golin (No. 124151) WACHTELL, LIPTON, ROSEN & KATZ 51 West 52nd Street New York, New York 10019 (212) 403-1000

Of Counsel: Elena M. Paul (No. 1135536) Sergio Muñoz Sarmiento (No. 1135565) VOLUNTEER LAWYERS FOR THE ARTS 1 East 53rd Street, 6th Floor New York, New York 10022 (212) 319-2787

John C. Blessington (No. 66967) Sara E. Yevics (No. 1132898) K&L GATES LLP State Street Financial Center One Lincoln Street Boston, Massachusetts 02111 (617) 261-3100 Attorneys for Defendant-Appellant Christoph Büchel

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TABLE OF CONTENTS Page Preliminary Statement .............................................................................................. 1 Argument .................................................................................................................. 1 POINT I THE DISMISSAL OF BÜCHEL’s VARA DAMAGES CLAIM WAS ERROR ................................................................................... 1 A.

VARA fully applies to Training Ground for Democracy...................................................................................... 1

B.

MASS MoCA distorted and modified Training Ground in a manner that was prejudicial to Büchel’s honor or reputation................................................................ 6 1.

“Plan B.” .................................................................................... 7

2.

The musuem’s display of the unfinished work ......................................................................................... 12

3.

The museum’s public attribution of the unfinished work to Büchel, and the harm to Büchel’s honor or reputation. ..................................... 18

POINT II THE DISMISSAL OF BÜCHEL’S COPYRIGHT ACT CLAIMS WAS ERROR .............................................................................. 22 Conclusion .............................................................................................................. 25

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TABLE OF AUTHORITIES Cases

Page

Davis v. Sears, Roebuck and Co., 708 F.2d 862 (1st Cir. 1983) ...................................................................13-14 Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340 (1991)...................................................................... 24 Flack v. Friends of Queen Catherine, Inc., 139 F. Supp. 2d 526 (S.D.N.Y. 2001) ............................................................ 4 Freeland v. Enodis Corp., 540 F.3d 72 (7th Cir. 2008) .............................................................................................. 13 Greenwich Workshop, Inc. v. Timber Creations, Inc., 932 F. Supp. 1210 (C.D. Cal. 1996) ........................................................................................... 24 Mirage Editions, Inc. v. Albuquerque A.R.T. Co., 856 F.2d 1341 (9th Cir. 1988) .............................................................................................. 24 Playboy Enters., Inc. v. Dumas, 831 F. Supp. 295 (S.D.N.Y. 1993) ................................................................. 3 Thomson v. Larson, 147 F.3d 195 (2d Cir. 1998) ............................................................................................. 24n United States v. Maravilla, 907 F.2d 216 (1st Cir. 1990) .......................................................................... 3 Welch v. Ciampa, 542 F.3d 927 (1st Cir. 2008) ..................................................... 13

Statutes 17 U.S.C. § 101 ............................................................................................. 2, 3, 4, 5 17 U.S.C. § 106A ................................................................................................ 6, 21 ii

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17 U.S.C. § 109....................................................................................................... 22

Other Authorities FED. R. EVID. 103(d) ............................................................................................. 14n Ginsburg, Jane C., Copyright in the 101st Congress: Commentary on the Visual Artists Rights Act and the Architectural Works Copyright Protection Act of 1990, 14 COLUM.-VLA J.L & ARTS 477 (1990)............................................................................................. 5 H.R. REP. NO. 101-514 (1990), reprinted in 1990 U.S.C.C.A.N. 6915........................................................ 4, 5 MOORE, JAMES WM. ET AL., MOORE’S FEDERAL PRACTICE (3d ed. 2009) ........................................................................ 13, 14n WRIGHT, CHARLES A., MILLER, ARTHUR R., & KANE, MARY K., FEDERAL PRACTICE AND PROCEDURE (3d ed. 1998)................................................................................................. 13

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PRELIMINARY STATEMENT MASS MoCA makes no serious effort to defend the district court’s reading of VARA. Instead, it argues that there was no evidence in the expedited discovery record to support Büchel’s claims. In doing so, the museum simply ignores the evidence that it does not like—including extensive evidence from its from its own files, and testimony from its own director. As is shown below, that evidence more than suffices to establish—in fact, it conclusively establishes—that the museum violated the statute. At a minimum, the evidence warrants a trial. Either way, the district court’s grant of summary judgment must be reversed.

ARGUMENT I.

THE DISMISSAL OF BÜCHEL’S VARA DAMAGES CLAIM WAS ERROR. A.

VARA fully applies to Training Ground for Democracy.

MASS MoCA only half-heartedly defends the district court’s repeated suggestions that Training Ground for Democracy was not protected by VARA. It asserts that the district court did not so rule: “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.” MM Br. 36.1

1

Citations to MASS MoCA’s brief take the form “MM Br. __”; citations to Büchel’s opening brief, “Büchel Br. __”; to the addendum to Büchel’s opening brief, “Add. __”; and to the Joint Appendix, “A___.”

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This ignores, however, the internal inconsistencies of the district court’s opinion. For although it is true that the district court did say, near the end of its opinion, that it was “[a]ssuming the statute does apply,” Add. 50, 565 F. Supp. 2d at 259, the opinion’s very next paragraph assumed the applicability of the statute away. Thus, in addressing MASS MoCA’s claim for declaratory relief, the district court 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. … Since he would have suffered a violation of no right recognized by this statute, this messy situation simply fell outside the boundary of VARA and, a fortiori, outside the more general provisions of the Copyright Act. Add. 51-52, 565 F. Supp. 2d at 260 (emphasis added). The court adopted this holding in dismissing VARA’s damages counterclaim, Add. 51-52, 565 F. Supp. 2d 260-61—and thus held that when “no completed work ever existed,” the “situation simply [falls] outside the boundary of VARA.” That was error, and MASS MoCA does not seriously attempt to show otherwise. Its contentions that Büchel is improperly “attempt[ing] to import … definitions in the Copyright Act into VARA,” and that “[n]owhere in VARA are unfinished works mentioned,” MM Br. 37 n.110, 38, are simply disingenuous. The meaning of “work of visual art” is set forth in 17 U.S.C. § 101, the definition section for the Copyright Act as a whole. Section 101 expressly provides that its definitions, unless otherwise provided, control throughout “this title,” Title 17, which

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of course includes VARA. As a result, VARA must be read in accordance with all of the definitions in Section 101, and all of the definitions must be read consistently with one another. To do otherwise would contravene the language of the statute, and would be “contrary to the rule that provisions of a single act should be construed in as harmonious a fashion as possible.” United States v. Maravilla, 907 F.2d 216, 231 (1st Cir. 1990) (citation and internal quotation marks omitted). In fact, no other approach to the statute is possible, because the pertinent definitions in Section 101 are inextricably intertwined. In particular, both the phrase “work of visual art” and its Section 101 definition contain the word “work,” and thus make clear that “work of visual art” is a subset of “work.” And Section 101 establishes when a “work” is “created,” which is in turn based upon when the “work” is said to be “fixed,” another term defined in Section 101.2 It accordingly follows that “work of visual art,” as a kind of “work,” is “created” when it is “fixed”; and that “where a work is prepared over a period of time, the portion of it that is fixed at any particular time constitutes the work as of that time.” 17 U.S.C. § 101 (emphasis added). The statute is thus clear that “the [Copyright] Act protects works in progress,” Playboy Enters. Inc. v. Dumas, 831 F. Supp. 295, 314 (S.D.N.Y. 1993)—and that such “‘preliminary’ work … is unquestionably covered

2

Not only that, Section 101’s definition of “work of visual art” uses the word “copies,” whose definition in turn uses the words “fixed” and “work.” The definitions of “fixed” and “created” themselves both use the words “work” and “copy.” This circularity confirms that the definitions must all be read in light of one another. 3

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by VARA” as well. Flack v. Friends of Queen Catherine Inc., 139 F. Supp. 2d 526, 534 (S.D.N.Y. 2001).3 Nor is there any merit to MASS MoCA’s suggestion that “collaborative artworks … are subject to more circumscribed protection under VARA.” MM Br. 36. The statute says no such thing, and the snippets of legislative history offered by MASS MoCA do not establish that Congress intended any such thing, either. What Congress did was to expressly provide that “[a] work of visual art does not include … any … motion picture or other audiovisual work.” 17 U.S.C. § 101. The legislative history explains that Congress excluded such works from VARA for a variety of reasons—such as the fact that such audiovisual works “are generally works-made-for-hire,” “are generally produced and exploited in multiple copies,” and the fact that “[t]hey are leased for theatrical and non-theatrical exhibition, licensed for broadcasting, shown on airplanes, and sold as videocassettes.” H.R. REP. NO. 101-514, at 9, reprinted in 1990 U.S.C.C.A.N. at 6919. “Each [such] market [for motion pictures and other audiovisual work] has its own commercial and technological configuration that affects how the work will appear when presented.” Id. “These critical factual and legal differences in the way … audiovisual works are created and disseminated,” and not just the fact that motion pictures involve “a collaborative effort” of numerous artists, led Congress to conclude that 3

See also Büchel Op. Br. 41-42 & n.4, which sets forth additional authority on the point, and explains how MASS MoCA misreads Flack. 4

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recognizing moral rights in the film industry would “conflict with the distribution and marketing of these works.” Id. (emphasis added). And so Congress decided to treat “the claims of [film] artists separately,” by striking audiovisual work from VARA’s scope, a step that “facilitated the progress of the legislation.” Id. As Professor Ginsburg has explained, the concept of moral rights “inspire[d] trepidation among major exploiter groups, such as periodical publishers and motion picture producers.” Jane C. Ginsburg, Copyright in the 101st Congress: Commentary on the Visual Artists Rights Act and the Architectural Works Copyright Protection Act of 1990, 14 COLUM.-VLA J.L. & ARTS 477, 479 (1990). Congress defined “work of visual art” as it did in order “to reassure large exploiters … that they need not fear moral rights claims from artists creating works for [them],” and “to limit the law’s coverage to objects of ‘Art,’ rather than of mass production.” Id. at 480. Congress thus limited “the subject matter of [VARA to] essentially works of painting and sculpture, [which] present[] the strongest, and most distinct, claim for moral rights protection.” Id. at 479. None of this legislative history diminishes the applicability of the statute here. It is not disputed that Training Ground for Democracy was a work of “sculpture, existing in a single copy,” as Section 101’s definition of “work of visual art” provides,4 and that the work did not fall within any of the specific exclusions set 4

MASS MoCA does not deny here, and did not deny below, that Training Ground was a work of sculpture. Nor could it: the museum’s director contemplated and understood, for example, that the installation would consist of “many great pieces of sculpture” that would have “great resonance as stand-alone works of art” even after the exhibition was completed and taken apart. A691. 5

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forth in that definition. And, as shown above, the fact that the work was unfinished did not render the statute inapplicable, either. In short, given that there is no applicable “explicitly identified exception” to VARA, there is no basis for a judicial “grafting” of an “exception to the statutory protections,” as the district court seemingly suggested might be done in this case. Add. 43, 565 F. Supp. 2d at 256. Like all statutes, VARA must be construed by its express terms, and those terms unquestionably apply here. B.

MASS MoCA distorted and modified Training Ground in a manner that was prejudicial to Büchel’s honor or reputation.

Accordingly, the dispositive question, under either Section 106A(a)(2) or (3), is whether MASS MoCA engaged in a “distortion, mutilation, or other modification of the work which would be prejudicial to [Büchel’s] honor or reputation.” 17 U.S.C. § 106A(a)(2), (3). That is, of course, a question of fact. MASS MoCA answers the question essentially by ignoring the evidence it does not like— including documents from its own files, and testimony from its own director. This it cannot do. The summary judgment for MASS MoCA must be reversed if there is any evidence from which a reasonable fact-finder could return a verdict for Büchel. And here, contrary to MASS MoCA’s contentions, there is plenty of evidence to support such a verdict—indeed, enough to preclude a reasonable factfinder from reaching a verdict for MASS MoCA.

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1.

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“Plan B.”

To begin with, MASS MoCA contends that it cannot be found to have distorted or modified Büchel’s work because it was doing nothing more than “implementing the instructions Büchel had provided before his departure until those instructions were exhausted.” MM Br. 2; accord id. at 40-41. The museum was mechanically going through Büchel’s punch list, the argument goes, so that the installation would be ready for further work upon Büchel’s anticipated return. The record is undisputed, however, that by February 2007, this was not so. It was by then, as MASS MoCA admits, that museum and artist had reached an “impasse.” Id. at 21; see also, e.g., A757-62, 1558.5 In a January 31, 2007 email, for example, museum director Joseph Thompson told a major donor that there was only a “small chance” that Büchel would “return to North Adams.” A725. In a

5

After January 6, 2007, Büchel did not give instructions or approval for any additional work on the installation, A926, 1558, and by late January, he had emphatically made clear to MASS MoCA that work on the installation could not continue, e.g., A723 (“we cannot continue”), A764 (“we cannot continue”), A1560, 1568. Even before then, Büchel had repeatedly complained to the museum that the work it had done after his departure in December 2006 had not followed his instructions. E.g., A722 (Büchel email to Joseph Thompson, January 29, 2007: “I will not go extensively into the details regarding the punch list and the photos: just let me say this again, there is a lot of stuff not being done according to my instructions”), A1560. And even when Büchel was resident in North Adams in October, November, and December 2006, he complained that museum personnel were disregarding his instructions and making unauthorized changes to his work. E.g., A1442-43 (Büchel email to Joseph Thompson, December 14, 2006: “I don’t know why in this and many cases [museum] people just do stuff without checking back if [it’s] okay to do [something], when they think by themselve[s] the plan has to be changed. . . . I am supposed to be the artist”), A1560; see also Büchel Br. 18-19. 7

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February 14, 2007 email, production manager Dante Birch told Thompson that Büchel “has drawn a line in the sand and I don’t think he will budge on it.” A774. The museum did not believe that Büchel was likely ever to come back. Yet it was precisely at this point that the museum decided to ramp up “Plan B”—the plan to create a brand new show out of Büchel’s work, and to do so without him.6 The idea behind “the opening of the show,” as Birch put it, was to send a “clear ‘game over’ message” to Büchel. A774. Joseph Thompson explained the plan to the large donor on January 31: “I think there is a high likelihood we will open the exhibition at its current 85% level of completion. [Büchel] will disavow the exhibition, and he won’t go silently into the night.” A725. “[T]he game has changed,” Thompson explained to the donor, and “there will be controversy surrounding my decision to show the work as a failed work-inprogress, if indeed it gets to that.” Id. The new show “will feel like a sort of archeological pre-enactment, it will be fascinating, and the sheer scale and weight of the enterprise will speak for itself … though it will not be a Christoph Büchel work of art.” Id. (emphasis added). This was Plan B. The new show would not be a Büchel work, because the museum was modifying Büchel’s work—and no longer simply trying to follow the artist’s instructions. It was extrapolating, guessing, filling in holes, indiscriminately stacking and piling objects the museum thought Büchel might have used. 6

See A776 (February 14, 2007 Joseph Thompson email, discussing “go[ing] into super production mode” “[o]nce we really commit to plan B”). 8

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Again, admissions from MASS MoCA’s files and its own director’s testimony establishes this. In particular, the February 14, 2007 email chain that MASS MoCA now astonishingly claims reflected “a plan for curtailing MASS MoCA’s future work,” MM Br. 27, in fact establishes repeatedly how the museum went beyond Christoph’s instructions. Thompson directed, for example: “Bring whatever pads, sleeping bags, cots, water bottles and other items we’re 80% sure he would have used, and stack [them] around as if they are awaiting Christoph to put them in place.” A776 (emphasis added). “For all the sea containers, let’s dust them out, and put the objects that we know go in them … again, not attempting to array them as CB might, but just stacking them in there.” Id. (emphasis added). And do “[a]nything else that Dante and Nato feel is known with 80% certainty.” Id. (emphasis added); see also A1559-61. The result was indisputably a modification of Büchel’s unfinished work, not an attempt to carry it out. “I have no idea whether he would ultimately approve it or not,” Joseph Thompson testified as to one modification. A511 (emphasis added). Thompson acknowledged that it “was always difficult” to “read Christoph’s mind,” A506, and that the museum’s continued work reflected “our best reasonable guess as to what materials [Büchel] would ultimately draw from.” A511 (emphasis added). Birch, in the February 14 email chain, recognized that in the unlikely event that Büchel ever returned, Büchel would not approve of the work, and that, indeed, as to at least one item (the bomb carousel), the museum was deliberately ignoring Büchel’s instructions: “If he turns around and says he’ll

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come back then there will be the issue of redoing what we’ve already done and that may be difficult. He already said to take down the bomb carousel.” A774 (emphasis added). In short, as Birch put it in the same email chain, the museum wasn’t simply presenting “an unfinished show” by “allow[ing] [it] to appear unfinished & unpolished,” it was “do[ing] a ‘MASS MoCA interprets Buchel’ show.” A775 (emphasis added). The “intellectual property issues” raised by doing such a show greatly disturbed Birch: “When they come to review it, the question will be ‘what is it?’ .… and if it’s reviewed as a Buchel, we’re in deep [expletive deleted].” A774 (ellipsis in original). The result was that MASS MoCA made modifications of Training Ground that, as Birch predicted, Büchel did not approve. Büchel’s affidavit and deposition testimony identify numerous ways in which the museum made changes to the installation without his permission and contrary to his instructions. These include, among other things, the construction of cinder block walls in a manner contrary to Büchel’s expressed intent and in disregard of his specific instruction that the walls not be constructed until his return, A927-28; the bomb carousel, which MASS MoCA placed incorrectly and failed to take down in accordance with Büchel’s express instruction, A929; see A774; the “Saddam compound” or “spiderhole,” which was altered without Büchel’s authorization and was rigged, hung, and detailed in a manner that Büchel did not approve, A929-30; the cinema, which was not constructed in accordance with the artist’s instructions, A930-32; the house, to which the museum added entrances in defiance of Büchel’s instructions,

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A932; a police car and French barriers, which the museum, without the artist’s approval or instructions, placed in the wrong part of the installation, A932; the mobile home, to which the museum added entrances that were not approved or intended by Büchel, A933; elimination of a “dive bar,” A934; unauthorized detailing throughout the work, A933; and, of course, the addition of the yellow tarps, A934. In short, the evidence—especially MASS MoCA’s own words— establishes conclusively that the museum was modifying and distorting Büchel’s work. It also disposes of MASS MoCA’s hyperbolic assertion that, somehow, Büchel is “contend[ing] that VARA precludes artists from working with third persons,” and that Büchel is arguing 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” VARA waiver. MM Br. 43-44. This is not a case where a worker made an innocent mistake in following an artist’s directions, and where the innocent mistake was never intended to be displayed, and was not displayed, in a manner that could affect the artist’s honor and reputation. This is a case where a museum, as an institution, intentionally chose to go beyond the artist’s direction, intentionally chose to create a modified work, a work it knew the artist would not approve, and did so in order to show it to influential people and to the public, when everyone knew (thanks to the publicity generated by the museum) that work had been a project of that artist. Contrary to MASS MoCA’s contention, finding liability here would hardly involve VARA in “regulat[ing] artists’ relations with assistants and other persons who assist artists in carrying out their

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designs,” MM Br. 44; rather, it would fulfill the fundamental purpose of the statute. 2.

The museum’s display of the unfinished work.

MASS MoCA’s other arguments also simply ignore the evidence it doesn’t like. In particular, the museum completely denies that it displayed Training Ground for Democracy at all. MM Br. 47-48, 51 n.131. The basis for this denial is an evidentiary objection. The museum claims that “there is simply no admissible evidence in the record that anyone actually ‘peeked’ behind the tarpaulins” during the yellow tarp show, and dismisses as “obvious hearsay” the evidence offered by Büchel that MASS MoCA allowed visitors to view the installation in an uncovered state. Id. at 48, 51 n.131 (emphasis added and omitted in part). This evidentiary objection comes too late, and in the wrong court. Before the district court, MASS MoCA made absolutely no objection whatsoever to the admissibility of any of the materials proffered on the summary judgment crossmotions by Büchel. E.g., A1379 (no evidentiary objection to Boston Globe article in MASS MoCA Local Rule 56.1 response). (Indeed, given that MASS MoCA— utterly unnecessarily7—had insisted upon and obtained an extremely expedited schedule that restricted the parties to one deposition per side, A49, 248, neither 7

Unnecessarily, of course, because MASS MoCA had demanded expedition to obtain a declaration to allow it to do something that, just days after it obtained the expedited declaration that it sought, it decided it really did not wish to do— namely, to show the unfinished work in an uncovered state. MM Br. 31; Büchel Br. 8 & n.2. 12

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party made any evidentiary objections, and both parties necessarily relied upon hearsay; MASS MoCA itself presented extensive hearsay evidence, including a large number of unauthenticated documents, and, in particular, a number of news clippings and printouts from the Internet. E.g., A794-98, 855-60, 862-67, A141819, 1421-22.) Any objection is therefore waived. E.g., Welch v. Ciampa, 542 F.3d 927, 943 n.9 (1st Cir. 2008) (on appeal of summary judgment, holding that hearsay objection to “consultant’s report” was “waived” because party “did not raise this objection before the district court”); Freeland v. Enodis Corp., 540 F.3d 721, 738 (7th Cir. 2008) (“An evidentiary objection not raised in the district court is waived on appeal … and this rule holds as true for a summary judgment proceeding as it does for a trial”; citation and internal quotation marks omitted); 10A CHARLES A. WRIGHT, ARTHUR R. MILLER & MARY K. KANE, FEDERAL PRACTICE

AND

PROCEDURE § 2722, at 384-85 (3d ed. 1998) (“As is true of other material introduced on a summary judgment motion, uncertified or otherwise inadmissible documents may be considered by the court if not challenged. The objection must be timely or it will be deemed to have been waived.”); 11 JAMES WM. MOORE ET AL.,

MOORE’S FEDERAL PRACTICE § 56.14[2][c], at 56-223 (3d ed. 2009) (“An evi-

dentiary objection, not raised in the district court, is waived on appeal. This rule is equally applicable to a summary judgment motion as it is for a trial.”). And, as this court has held, “[o]nly to prevent a gross miscarriage of justice will we depart from the application of this [waiver] rule.” Davis v. Sears, 13

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Roebuck and Co., 708 F.2d 862, 864 (1st Cir. 1983).8 As a result, the record in this case is undisputed that viewers of “Made at MASS MoCA” could easily—and in fact did—look behind the tarps to see Büchel’s unfinished, modified, and distorted work. The evidence thus establishes, as one observer reported, that the tarps did not “cover much”: The tarps are a bright, incongruously cheerful yellow stretched tight across gunmetal-gray stanchions. They don’t reach the floor, and they rise only about two feet above eye level, so they don’t cover much. You can easily crouch down to slip your head underneath or peek through the slits between the vinyl sheets. Behind the passageway formed by the tarps, the monumental elements of the installation rise all around you, plain as day—the cinderblock walls, the two-story house, the guard tower, the trailers, the carnival ride, all compacted together in a claustrophobic, politically surreal borough of hell, George Orwell by way of David Lynch. A1544 (emphasis added), 1571. The Boston Globe similarly told its Sunday readers: As you follow a path between the fencing that leads through the unfinished installation, you can see through openings below the tarps parts of cars, trucks, trailers, storage containers, and other objects close to the ground. And you can see rising above the fence the second story of a white clapboard house, shipping containers stacked 20 or more feet high, cinder-block walls topped by coils of barbed wire, a guard tower, and the upper part of an amusement-park carousel. At one end, there’s an almost completely reconstructed interior of an old movie theater. 8

Accord, e.g., 11 MOORE et al., MOORE’S FEDERAL PRACTICE § 56.14[2][c], at 56-224 (“the ‘plain error’ exception applies only in ‘exceptional circumstances where an error affects a party’s substantial rights and results in a miscarriage of justice’”; citing FED. R. EVID. 103(d)). 14

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A1127 (emphasis added); see also MM Br. 48 (admitting that the tarps allowed visitors to see “the top of a house, a shipping container or two and the top of a carousel”). The evidence thus demonstrates how “Mass MoCA is hiding an elephant behind a napkin,” how “[i]t doesn’t take much effort or imagination to see most of the work,” how the exhibit was really a “peep show” and a “wink wink wrap show,” how “[t]he 48″ tarps cover very little of Buchel’s installation” and provide “very little visual obstruction,” how “those able to peek behind the yellow tarp in Building 5 will find [Büchel’s] war-torn suburb, reproduced on a one-to-one scale,” and how “the tarp coverings serve not to occult Büchel’s unfinished work of art, but rather to evoke and provoke a voyeuristic desire on the part of the touring audience.” A862, 1488, 1534. Visitors well understood that the unfinished installation was the real show; as one observer put it, there wasn’t much at all to the “exhibit” that visitors reached at the end of their long walk through Büchel’s distorted work: The makeshift exhibit, Made at MASS MoCA, is nothing more than a self-serving trifle of wall texts and documentary photographs implicitly touting the cooperative relationships the museum enjoyed with artists like Robert Rauschenberg, Tim Hawkinson and Cai Guo-Qiang while constructing their epic-scaled installations. A1540; accord A1127 (Boston Globe critic, describing “a slick, disingenous, egregiously self-serving photo and text display called ‘Made at Mass MoCA’ in a small gallery at the end of the Buchel hall”), A1588 (New York Times critic, describing

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“‘Made at Mass MoCA’ [as] “a self-serving, slapped-together display of photographs of previous installations [that] accomplishes little but to suggest the frequent vacuity of these projects and underscore the possibility that the Büchel was too big a reach for the museum”). Beyond this, the evidence is equally undisputed that, after the impasse was reached with Büchel, MASS MoCA invited and allowed some visitors— including some very prominent people—to view the unfinished, distorted work in an uncovered state. In his January 16, 2007 email to Joseph Thompson, Büchel specifically refused to give the museum permission to show the installation to anyone in an unfinished state: I will not give you permission to show an unfinished project nor will I show nor let you show any work in progress, as you proposed already earlier. A705 (emphasis added). Büchel strenuously repeated his objections when published reports made clear that the museum was giving tours of the uncovered, unfinished work. A811, 829.9 But as the Boston Globe reported, Büchel’s objections 9

MASS MoCA seems to imply that, during his stay in North Adams, Büchel impliedly had given blanket permission for display of the unfinished work. See MM Br. 14. That is not so. The December 17 email quoted by the museum (id.) refers to a visit by a MASS MoCA board member, Carmela Haklisch and her daughter, Katherine, who were introduced as such to Büchel. See A683, 1570; see also http://www.massmoca.org/leadership.php (listing board members). Occasionally during Büchel’s stay in North Adams, Joseph Thompson came into Building 5 with unannounced “visitors” who were introduced as friends of Thompson’s, and Büchel, out of politeness, briefly chatted with them. A1570. These were not public tours like those the museum gave to generate publicity after the impasse was reached with Büchel, and Büchel’s courtesies during his stay simply cannot be (footnote continued)

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didn’t “stop[] museum officials from showing off the unfinished project.” A795. For example, “museum directors and curators attending an arts conference in the Berkshires were led on a tour through Building 5.” Id. “Richard Flood,” curator of the New Museum of Contemporary Art in New York, “saw it and said it was one of the best works he’s seen in the past three years,” bragged Joseph Thompson in an email. A1110, 1246. “North Adams Mayor John Barrett III has been in twice, and in January, he brought along Governor Deval Patrick.” A795. And MASS MoCA gave the press particular priority. Geoff Edgers, the author of a March 28, 2007 Boston Globe story about the impasse between MASS MoCA and Büchel, A794, was allowed to tour the unfinished work in March 2007, and he described his visit in an interview with the BBC, see A1565, 1570. The New York Times was allowed to take photographs of the unfinished work inside Building 5—photographs that it published in a May 22, 2007 article. A859-60. MASS MoCA’s contentions that it did not publicly display the unfinished work are thus completely contradicted by the undisputed evidence.

________________________ (footnote continued)

construed as authorizing such tours. Indeed, in December 2006, Büchel told the museum that he “will not allow [visitors] to walk around in an installation that is complete ‘unfinished business,’” that “there is no public ‘work in progress,’” and that he would not “play[] the artist clown and tour them around.” A669. 17

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The museum’s public attribution of the unfinished work to Büchel, and the harm to Büchel’s honor or reputation.

Finally, the museum claims that it did not attribute the distorted, unfinished work to Büchel, MM Br. 52-54, and that, regardless of whether it modified or distorted Büchel’s work, Büchel failed to present evidence of injury to his honor or reputation, id. at 46, 49. Again, the record belies both contentions. To begin with, the museum’s claim that it never attributed the unfinished work to Büchel is astounding, because the evidence reflects that the museum did precisely that that—repeatedly. The museum engaged in an extensive publicity campaign to promote the unfinished work, a campaign that accelerated after the museum and artist had reached their impasse. Joseph Thompson testified that he had spoken to numerous newspapers and other media—including, among other outlets, the New York Times, the Boston Globe, the Los Angeles Times, local papers, Artnet, and Art+Auction magazine. A1252.10 The museum even publicly associated its yellow-tarp show, “Made at MASS MoCA,” with Büchel. It issued a press release announcing that show—a press re-

10

MASS MoCA refers to a March 26, 2007 statement Büchel’s gallery issued to the Boston Globe, and claims that the statement is evidence that Büchel was responsible for publicity surrounding the unfinished work. MM Br. 22 & n.82, 5455 & n.133; see A785-92. But that statement was issued in a response to a press inquiry generated by MASS MoCA’s publicity efforts, and “in response to the fact that members of the press were allowed to view a work in progress without the consent or presence of the artist.” A786. The Globe’s story came out two days later. A794. 18

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lease mentioned Büchel and his unfinished work repeatedly, stated that it was Büchel’s unfinished work, said that the unfinished work was still in Building 5, described the materials that were included in the unfinished work, and announced the filing of this litigation against Büchel. A834, 1492. Indeed, the press release makes clear that “Made at MASS MoCA” was nothing but a publicity stunt designed to attract attention to Büchel’s distorted, unfinished work. See also A1127, 1588. Needless to say, the press reports that resulted from MASS MoCA’s extensive publicity efforts made clear that the unfinished work in Building 5 was Büchel’s. E.g., A794-97 (Boston Globe, March 28, 2007), 855-60 (New York Times, May 22, 2007), 862-66 (ARTINFO.com, July 20, 2007); see also A1540 (referring to articles in, among other places, the North Adams Transcript, the Berkshire Eagle, the Albany Times Union, Newsweek, and the Los Angeles Times); Büchel Br. 27-28 & n.3. Given this extensive publicity, Thompson was forced to concede at his deposition that were the museum allowed by the district court to further display the unfinished work, the media would “likely” continue to refer to Büchel in their stories on the work, and that the reports would affect Büchel’s reputation. A1252. So, too, the evidence of harm to Büchel’s honor or reputation is uncontroverted. Critics from the Globe and the New York Times agreed—what MASS MoCA did distorted Büchel’s work. As the Times critic put it, “[t]he shrouded non-Büchel is a kind of museological car crash,” because “what is visible above 19

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and below the tarps is barely the skeleton of a Büchel. It’s just a lot of stuff.” A1587-88 (emphasis added). (It appeared to be just a lot of stuff, of course, because it consisted in large part of MASS MoCA’s indiscriminate “stacking” of items it had an “80%” belief that Büchel might use. See pp. 8-11, supra.) As a result, “what Mass MoCA has done certainly misrepresents Buchel’s art,” observed the Globe’s critic. A1127 (emphasis added). Such were the opinions of people who knew Büchel’s art, who had seen his other projects before, and who, as result, appreciated, among other qualities, Büchel’s unique aesthetic and his remarkable attention to detail. They understood that what MASS MoCA presented in Building 5 did not reflect Büchel’s talents or work. The problem from a reputational standpoint, however, was that not everyone who saw the unfinished work could be expected to understand this. As the Globe critic observed: “Whether or not the exhibition is clearly labeled ‘unfinished’ and whether or not Buchel is identified as its author, many people are going to judge [Büchel] and his work on the basis of this experience.” Id. (emphasis added). The Times noted similarly that Mr. Büchel contends that the display damages his reputation. It will certainly give people unfamiliar with his obsessive, history-driven aesthetic an inaccurate sense of his art, and this is indeed a form of damage …. A1587 (emphasis added). And the evidence is again undisputed: some visitors did indeed judge Büchel’s work on the basis of MASS MoCA’s distortion of it. A critic wrote in 20

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Commentary: “Having inspected it Thursday afternoon, I am not sure that it suffers from being enveiled.…” A1127 (emphasis added). And Berkshire Fine Arts published a review called “Christoph Buchel’s Tarp Art at Mass MoCA: Crap Under Wrap,” that concluded that it would be “a huge mistake” to take down the tarps because Büchel’s work offered “virtually nothing of substance or interest,” and that, indeed, the installation was nothing but “junk.” A1487-88 (emphasis added). This evidence—in opposition to which MASS MoCA admits it has presented nothing11—leaves no doubt that Büchel suffered harm that is cognizable under VARA. But if there could be any doubt, there is the question of honor. VARA serves to protect the “honor or reputation” of visual artists. 17 U.S.C. § 106A(a)(2), (3). The reason why the statute uses the disjunctive “or” is obvious: if it did not, someone could deface and then display, say, a painting, and then argue that there is no reputational harm to the artist because everyone should realize that the defacing was not done by the artist.12 So honor standing alone is protected by VARA. And again, the evidence is undisputed. As the Globe observed, what MASS MoCA did by exhibiting the unfinished installation with the tarps and the anti-Büchel document room, was to “exact[] revenge” upon Büchel by “turning 11

MM Br. 46 n.123 (“MASS MoCA will not burden the Court” with contrary evidence). 12 Cf. MM Br. 49 (contending that there is no “evidence that the artistic community 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”). 21

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his project into a show that misrepresents, dishonors, vilifies, and even ridicules him.” A1128 (emphasis added). II.

THE DISMISSAL OF BÜCHEL’S COPYRIGHT ACT CLAIMS WAS ERROR. MASS MoCA’s brief defense of the dismissal of Büchel’s Copyright Act

claims is likewise meritless, and may be quickly dispatched. The museum’s principal contention is that the unfinished work was not publicly displayed. MM Br. 56. As demonstrated above (pp. 12-17), the record establishes conclusively that the unfinished work was indeed publicly displayed. The museum’s next argument is that it owned the physical copy of (as opposed to copyright in) Training Ground, and that, accordingly, Section 109(c) of the Copyright Act, 17 U.S.C. § 109(c), permitted it to display the unfinished work. As noted in Büchel’s opening brief, however, that provision does not help MASS MoCA, because the museum’s copy was not “lawfully made,” which is an express statutory prerequisite for the protection afforded by Section 109(c). Büchel Br. 51. Beyond this, it is simply untrue that, as MASS MoCA asserts, “the installation’s various components” were all “purchased by … , donated to … , or … constructed by MASS MoCA.” MM Br. 58. The evidence shows that some of the materials were provided by Büchel and one of his galleries, A737, 743-45, 748-49 (noting materials contributed by “Maccarone” and “CB Assts” (Büchel’s assistants)), A1572; and it also reflects that the museum displayed, without Büchel’s permission, his picture archive, personal notes, and project ideas, all of which were un22

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questionably owned, both physically and in copyright, by Büchel, A812, 156667.13 In any event, even MASS MoCA understood that the physical copy of the installation was to belong to Büchel. See, e.g., A1496 (“it belongs to you” and Büchel may “sell all or part of it”), A607 (museum’s proposed contract, stating that “[u]pon termination of the exhibit, the fabricated work shall be owned outright by you, including all copyrights and related preparatory materials”).14 Finally, MASS MoCA contends it did not create any derivative work when it modified and distorted Training Ground for Democracy. MM Br. 58-61. This contention, however, is belied by its representation to the district court that the installation [m]aterials as they now stand reflect significant aesthetic and design choices by MASS MoCA personnel, including with respect to the layout of the [m]aterials, and with respect to the selection and procurement of pre-existing buildings and vehicles that have been modified and incorporated into the [m]aterials. A346 (citation omitted; emphasis added). Again, in its director’s own words, what MASS MoCA did was to “transform” “a Christoph Büchel work of art” into what

13

Although the issue is not material to any legal issue in the case, Büchel vigorously disputes the museum’s contentions as to the amount that it spent on the installation. The record reflects that the museum’s figure was significantly inflated—for example, by the inclusion of the value of a house that was donated to the museum. E.g., A924-25, 1561, 899 & n2. 14 Neither the museum’s proposed contract, A606-09, or the counterdraft prepared by Büchel’s New York gallery, A1500-02, were ever executed by the parties, A919, 881, 436, 1179-80, 1551. But as the museum’s draft makes clear, both parties understood that the physical copy of the work was to belong to Büchel. 23

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it could, and did, publicly present as “a failed work-in-progress.” A725. That is the creation of a derivative work. MASS MoCA likewise created a derivative work from the Büchel’s model and plans.

And the museum’s creation of a

“tarped” version of the work—where the viewer sees some elements of the unfinished work, but not others—was also the creation of a separate, unauthorized derivative work. See, e.g., Mirage Editions, Inc. v. Albuquerque A.R.T. Co., 856 F.2d 1341, 1343-44 (9th Cir. 1988); Greenwich Workshop, Inc. v. Timber Creations, Inc., 932 F. Supp. 1210, 1215 (C.D. Cal. 1996).15 For as even the district court acknowleged, the “‘degree of creativity’” needed to create an original or derivative work is “‘minimal.’” Add. 49, 565 F. Supp. 2d at 259 (emphasis added; quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 345 (1991)). In fact, as the Supreme Court has made clear, “the requisite level of creativity is extremely low; even a slight amount will suffice.” Feist, 499 U.S. at 345 (emphasis added).

15

There is no merit to MASS MoCA’s suggestion, made in a footnote (MM Br. 55 n.134), that the museum might be considered a joint author of Training Ground. In its oral ruling, the district court correctly rejected this contention. Add. 13. MASS MoCA publicly gave Büchel, and Büchel alone, credit for the work. E.g., A981 (museum’s December 6, 2006 postponement announcement), A834 (museum’s May 22, 2007 cancellation announcement). Likewise, Joseph Thompson testified that Büchel was the artist, and that he, Thompson, was not an artist. A1167, 1170, 1249; see also, e.g., A1105. And certainly Büchel viewed himself as the artist. E.g., A1443 (“I am supposed to be the artist”). This evidence refutes any claim of joint authorship, which requires, among other things, proof that the parties “entertain in their minds the concept of joint authorship.” Thomson v. Larson, 147 F.3d 195, 201 (2d Cir. 1998) (citation and internal quotation marks omitted). 24

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CONCLUSION It is respectfully submitted that the judgment of the district court should be reversed.

CHRISTOPH BÜCHEL By his attorneys,

/s/ GEORGE T. CONWAY III George T. Conway III (No. 88538) Elaine P. Golin (No. 124151)

WACHTELL, LIPTON, ROSEN & KATZ Of Counsel: Elena M. Paul (No. 1135536) Sergio Muñoz Sarmiento (No. 1135565)

VOLUNTEER LAWYERS FOR THE ARTS 1 East 53rd Street, 6th Floor New York, New York 10022 (212) 319-2787 April 20, 2009

51 West 52nd Street New York, New York 10019 (212) 403-1000 John C. Blessington (No. 66967) Sara E. Yevics (No. 1132898)

K&L GATES LLP State Street Financial Center One Lincoln Street Boston, Massachusetts 02111 (617) 261-3000

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CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 6,780 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6), because it was prepared in a proportionally spaced typeface using Microsoft Word 2008 for Mac, Version 12.1.0, in 14-point Times New Roman font.

/s/ GEORGE T. CONWAY III George T. Conway III Attorney for Defendant-Appellee Christoph Büchel April 20, 2009

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CERTIFICATE OF SERVICE 08-2199 Massachusetts MoCA v. Büchel I hereby certify that two paper copies of this Reply Brief for Defendant-Appellant Christoph Büchel, and one disk, were sent by Federal Express Next Business Day Delivery to: Kurt Wm. Hemr (No. 48253) Lindsay Dickerson (No. 1134948) Skadden, Arps, Slate, Meagher & Flom LLP One Beacon Street Boston, Massachusetts 02108 (617) 573-4800 Attorneys for Plaintiff-Appellee Massachusetts Museum of Contemporary Art Foundation, Inc

I also certify that the original brief, nine copies and one disk were also shipped via by Federal Express Next Business Day Delivery to: Clerk of Court United States Court of Appeals, First Circuit 1 Courthouse Way, Suite 2500 Boston, Massachusetts 02210 (617) 748-9057 on this 20th day of April 2009. /s/ Natasha R. Monell Natasha R. Monell, Esq.