one more time

Some final thoughts on the Mass MoCA/Büchel business--at least, final for now.  I was looking over Mass MoCA's Q and A and other statements this morning and a little jump in their reasoning stood out to me.  Their answer to the first question reads in part:

To encourage Mr. Büchel to finish the work, MASS MoCA extended the installation time from six weeks to more than three months, provided nearly twice the budgeted funds (over $300,000), and then offered an additional $100,000 to finish the work. Despite this, the artist refused to complete the piece. MASS MoCA offered him the opportunity to remove the materials, reimbursing the museum for their actual cost, which he also refused.

MASS MoCA was therefore left with no option other than to go to court to determine what MASS MoCA’s and Mr. Büchel’s rights are with respect to the display and/or disposal of the materials abandoned in the galleries.

The museum presents its hand as forced, but it seemed to me one option was left unstated: that of dismantling the installation themselves and at their own expense, and moving on.  I can see why the museum might not want to do that--all the money down the drain for nothing, a sense of pride and the feeling that they'd been had, one can speculate about others.  But it seems to me that there would have been no barrier to doing so--after all, if Büchel attempted to dispute their right to do so, it's impossible to imagine a judge ruling that the museum was obliged to continue to house a cancelled installation which the artist declined to claim.  And it turns out that while early on the artist issued demands to the museum on how the installation had to be treated, according to a comment by Ed Winkleman to his post on the decision, more recently he had dropped these in favor of the idea that the museum should just get rid of the whole thing.  Ed quotes (with permission) from an email sent to him by Donn Zaretsky:

"we have been begging the museum to dismantle the work for months, and they refused. See, as one example, footnote 3 of our moving brief ("Buchel has no [objection to taking down 'Training Ground for Democracy' and putting its components in a landfill) and, in fact, believes that the foregoing is part of the appropriate remedies to which he is entitled. Simply put, MASS MoCA can -- and should -- remove the unfinished 'Training Ground for Democracy' from Building 5 and dispose of it.")."

So they had a choice.  In the end, the museum no doubt will remove the objects at its own expense, just as it could have without suing, just as it would have if everything had gone successfully and as planned.  What they won was the ability to display the unfinished work without the artist's consent.

So what, in the end, was gained, and what lost?  Mass MoCA did get the judgment it wanted and can display the work for some length of time at the cost of the elevated expense of the exhibition, legal fees, and bad publicity.  Will these hurt the institution?  One hopes that their financial situation works out, but I don't know enough to comment on that.  I do wonder about the negative publicity.  It's not something most institutions look for, but it's hard to see what the practical impact of it will be.  Artists aren't generally in the habit of turning down opportunities to have their work in museums, and if bad publicity kept tourists away the Guggenheim would have closed years ago.  In those terms it may prove a wash.

What about for the rest of the art world?  Mass MoCA insists that it sought a narrow decision that didn't have an impact on artist's rights.  Again, their Q and A states "we have carefully framed and limited our case to avoid any negative consequences to VARA."  That's all well and good, but if the case didn't have a negative impact on VARA its only because the museum successfully argued that the law didn't apply to unfinished works, which to the best of my knowledge is not something that was explicitly held before (I'd be happy to learn if I was wrong, not being a lawyer.)  So now we have a category of artistic production, unfinished works, that have been held to be exempt from the legal protections of VARA.  It doesn't sound to me like a situation artists should be thrilled with.

The museum's brief in opposition to Büchel makes light of this situation, asking "Should artists everywhere fear for the privacy of their studios if the court rules in Mass MoCA's favor?" before answering in the negative.  And it's true that this is a pretty unusual situation--but then, most lawsuits involve unusual situations.  But if no one really expects unfinished paintings or what-have-you to start appearing in galleries over the protests of artists, that's not to say that there haven't been some costs or some unwelcome developments.  Most troubling is the argument in footnote 4 of the museum's brief, which reads in part

to establish a right to relief on any of his Counterclaims, 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 co-owner with Mass MoCA.  Whether Büchel is the "sole author" of the Materials is not a matter of undisputed fact.  Accordingly, he is entitled to no relief on his motion.

There's a bit of a tricky two-step here, in redefining the unfinished installation as mere Materials and therefore a different matter in terms of copyright from the installation itself.  But this is a polite fiction: none these materials would have ever been assembled except as part of Büchel's installation, which no one disputes he designed.  Here we have a museum edging right up to claiming co-ownership of an artist's copyright, whatever fine distinctions they claim to the contrary.  Clement Greenberg, history's greatest monster, used to get a lot of criticism for his studio visits: his admirers saw themselves as listening to a man with a strong eye whose insights could be valuable in developing their art, while detractors allegedly felt pressure to do as he told them or face possible repercussions.  Which view of Greenberg's actions was accurate I'll let you decide for yourselves: what I can say is, I don't think I ever heard of him claiming that his comments entitled him to a share of the resulting work's copyright.

So what's the practical impact?  Sergio I think overstates matters.  This is one District Court ruling, it's not exactly the last word on the topic.  But given the paucity of decisions in this area, it will likely have an outsized impact, at least for some time.  If I were an artist, especially one who did installations, and double especially one working in Massachusetts, I'd want to start looking at any contracts that came my way to make sure the language involved protected me and my work.  If I was working with an informal contract, I'd want to formalize it with my rights clearly expressed.  And I'd expect museums and galleries to be doing the same.  A lot of grief could have been spared if Mass MoCA had taken a little more care upfront itself.  In the end I find it hard to understand how an artwork could have such aesthetic interest and power that a museum would fight to display it and a viewer (the judge) could say it woke him up at night--and yet the creator can be held to not have the rights given to artists under VARA.  Anyway, I've spent more time on this than I ever planned; I'm going back to other topics, though I will post links to other developments and commentary as I see them.