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Christoph Büchel's VARA Victory

By Monica Pa

On January 27, 2010, the First Circuit Court of Appeals issued an important decision protecting the scope of artists’ rights under the Visual Artists Rights Act (“VARA”), 17 U.S.C. § 106A. In this much-publicized lawsuit, the Swiss artist Christoph Büchel was commissioned by the Massachusetts Museum of Contemporary Art Foundation, Inc. (“Mass MOCA”) to construct a mammoth art installation, roughly the size of a football field, entitled “Training Ground for Democracy” (“Training Ground”). The work included several major components, such as a vintage movie theater interior, a house, a variety of vehicles, a burned out 737 aircraft fuselage, and a bomb carousel. Mass MOCA was solely responsible for the cost of acquiring these items for the installation, which ultimately amounted to an upwards of $300,000 (nearly twice its initial budget) for materials and labor. Remarkably, the parties never memorialized the terms of their relationship or their understanding as to the intellectual property rights at issue. Communications between the artist and the museum became so strained that the artist refused to continue working on the unfinished installation. The museum, nevertheless, continued putting together the work in accordance with Büchel’s latest instructions. Unable to convince Büchel to return to the project, on May 21, 2007, Mass MOCA filed a complaint in federal court seeking a declaration that it was entitled to exhibit this unfinished work and a retraining order preventing Büchel from interfering. Büchel responded with a five-count counterclaim, asserting, among other things, that showing his unfinished work would violate his rights under VARA.

In July 2008, Judge Michael A. Ponsor in the District Court of Massachusetts ruled in favor of Mass MOCA, 565 F. Supp. 2d 245 (D. Mass. 2008), holding that VARA did not protect unfinished works of art. As such, the museum was entitled to show the Training Ground work so long as it included an accurate disclaimer. In any event, Büchel’s rights of attribution and integrity under VARA were not implicated by the museum’s conduct. The district court then dismissed Büchel’s copyright claims, finding that the display of “covered components of an unfinished installation” was neither an infringement of Büchel’s exclusive right to publicly display his work or to create derivative copies. Accordingly, the district court entered judgment in favor of the museum and dismissed all five of Büchel’s counterclaims.

In a substantial victory for artist rights advocates, the First Circuit reversed. Most important, Judge Lipez, writing for the unanimous panel, held that the “statute’s plain language extends its coverage to unfinished works”, as well as the statute’s history and purpose. The court concluded that Büchel’s rights in his Training Ground work “were protected under VARA, notwithstanding its unfinished state.” VARA protects an artists “right of integrity” which allows the artists to prevent distortions, mutilations or modifications of their works that are prejudicial to their reputation or honor. The record contained “sufficient evidence to allow a jury to find that Mass MOCA’s actions [namely modifying the “Training Ground” work over his objections] caused prejudice to Büchel’s honor or reputation.” The court, however, dismissed Büchel’s right of attribution claim. Since VARA’s protection for a right of attribution is only enforceable through injunctive relief, this claim was moot because the Training Ground work no longer existed after the museum dismantled it.

This decision is also notable for its copyright holding. Acknowledging the intersect between VARA and the Copyright Act, the First Circuit held that the record revealed a factual dispute as to whether Mass MOCA violated Büchel’s exclusive right to publicly display his work when it repeatedly and deliberately showed Büchel’s unfinished works on numerous occasions to various individuals without his permission. The court, however, held that because Büchel’s counsel did not adequately develop the claim that the museum’s modification of the Training Ground work constituted the creation of an unauthorized derivative work, this copyright right was waived on appeal. This case was remanded for further proceedings on Büchel’s reinstated VARA and copyright claims. In a recent statement to the press, Büchel’s counsel has indicated that Büchel, now represented by the Volunteer Lawyers for the Arts, Wachtell, Lipton, Rosen & Katz in New York City, and K&L Gates LLP in Boston, intends to litigate this case “to the fullest extent possible.”

This litigious debacle has, interestingly, reemerged in Büchel's other works. At the latest Art Basel Miami Beach show in December 2007, he presented a smaller version of the Training Ground work, which featured litigation papers and correspondence about the failed show. Reportedly, this work was purchased by a collector for $250,000, and donated to the Hamburger Bahnhof museum in Berlin.

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