Reading Ed Winkleman's site today brought to my attention a long analysis of the legal maneuvers ongoing in the MASS Moca/Christoph Büchel fight done by Sergio Munoz-Sarmiento, the Education Director for Volunteer Lawyers for the Arts. It's an eyeopener on many levels, not least of which that it confirms for me that Skadden Arps are representing the museum, explaining the numerous hits from their ISP to this site ever since I started writing about the affair. Hi folks! Anyway, Munoz-Sarmiento's piece is rather long, and I haven't read it all, but it's safe to say he's not impressed, which shouldn't surprise anyone. MASS MoCA evidently is taking a maximalist approach, responding to virtually all of Büchel's claims with deny, deny, deny, and then throwing a kitchen's sink worth of arguments as an affirmative defense. Some of those I find more intriguing or convincing than Munoz-Sarmiento, which doesn't mean they have legal value. It seems to me at least plausible, for instance, that if the museum paid for the objects in the exhibition, and there was no agreement that ownership should go to Büchel, then MASS MoCA might indeed own the physical things that were installed, the artist's role being in the selection and arrangement of them and not involving actual possession, although copyright would be a different matter. Furthermore, the question of whether they, as presently installed, rise to the status of an artwork has always struck me as an interesting question. We all have learned that a Brillo box that we find on a store shelf is an mundane container of a cleanser, but that another Brillo box installed in a gallery by Andy Warhol and presented for display is a work of art, which is to say, intention and context matter. In this case, does Büchel's intention actually reside in the installation? Part of his very argument is that it does not--the question then becomes, whose fault is it? I'm not saying I'm totally convinced by this, mind you, but it at least is an intriguing idea.
Intriguing, or totally shameless, that is. I don't entirely blame the museum or its lawyers for taking an extreme position--they're entitled to make every attempt to press their cause, and it may be that some of this is bluster, or meant to establish a negotiating position (though we seem far from that.) But it's hard to accept the idea that Büchel's intention was not frustrated here, at least at some level, and while he's perhaps not entirely blameless (a claim MASS MoCA also presses), the museum's arguments taken together have something of the air of the famous definition of chutzpah, in which a man convicted of killing his parents pleads for mercy on the grounds of being an orphan. It's true in some sense that, as the museum notes, installation projects of this kind are in some measure a collaboration between artist and institution, a fact that might be taken to muddy the question of artistic authorship question further. But Büchel wasn't in North Adams for the view, and I very much doubt that the installation was to be credited to both him and the museum as co-creators (works in the same space by Ann Hamilton and Tim Hawkinson, to pick two examples, weren't.) So while I'm not going to blame anyone at this time, I have to agree with Ed that I'm pretty shocked at what I've read. As he wrote,
I can see in each instance how MASS MoCA would make those arguments (logically that is), but I can't for the life of me grasp why they would. They seem to have lost their grasp of the bigger picture here. Whatever credibility or funding they hope to recoup via these arguments, they're putting any future artists they might work with on notice that they decide when something is the artist's work and when it's not.
Precisely. I know they spent $300,000 (or more) only to find themselves, regardless of who's fault it was, with an embarrassment and a closed gallery during tourist season. I can believe that hurt. But if they insist on going down the path they're on, I worry that those will only be the beginning of their losses.
(And: since I didn't link to it when it ran, Ken Johnson's take on the exhibit MASS MoCA does have up, and the larger situation.)