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July 26, 2007


Sergio Munoz-Sarmiento

Recent emails and comments on art blogs seem to indicate a general misunderstanding regarding the MASS MoCA v. Büchel lawsuit. A short clarification is in order.

The main misdiagnosis that must be addressed is the continued misunderstanding which looks at this debate in terms of who was at fault or the claim that the museum "owns what it buys." These flawed arguments miss the point not by inches, but by miles. Artists, art critics, and art bloggers must understand that the social and professional discourses which dictate and mitigate artistic production and artworld interactions do not necessarily apply within the larger judicial and legal frameworks. In this case omnipresent legal protections for an artist--which are automatically available and triggered--trump affective and social interrelations.

In order to address the blind argument relying on “fault,” the first fact that must be understood is that there was no written agreement between the museum and Büchel, which clearly indicates the availability of a legal structure in which this fiasco could have been avoided. Simply put, what MASS MoCA and Mr. Thompson should have done to protect their monetary investment is what any first year law student learns during the first week of law school. That is, draft an agreement. This is especially true when one of the parties (in this case the museum) is in a higher position of power and in a position to know better. The fact that they didn’t do so, and knew, or should have known, will most likely favor Büchel. (Incidentally, other options available to MASS MoCA are those also known to any first year law student under contract law, such as the doctrines of implied in-fact or implied in-law contract, unjust enrichment, and unconscionability.)

Secondly, Martin of the Anaba blog and JL of Modern Kicks blog follow Skadden Arps’ wounded lead and argue that the objects that MASS MoCA bought for Büchel are simply the materials for making art, and thus their property. However, the issue isn’t whether or not the parties are calling these "objects" or "materials" art, but rather what legal protections are already and immediately available to an artist under U.S. law when s/he materializes her/his idea. A simply analogy to statutory rape laws is in order, where the intent of either party is irrelevant. It is clear that when an adult has sex with a minor, even if consensual, the law has defined this act as unlawful and thus punishable under criminal law. Similarly, Copyright and VARA laws apply to creative and materialized actions whether or not the parties intended as such, and so long as this protections were not waived.

What these two blogs do not address is the fact that the objects were bought and installed in the museum based on the drawings, plans, and physical model executed by Büchel. What is of major import here is that MASS MoCA would not have bought, much less installed and materialized the art objects had it not been for their commissioning of Büchel as an artist and Büchel ’s plans and model.

In fact, the minute the objects were individually described, listed, and drawn on a piece of paper and physically executed as a model by Büchel, they were at this point transformed from mere objects to art objects. The fact that the museum executed his commands to obtain and purchase the objects based on his drawings and model solidify the fact that the objects at this point were no longer materials but evidently art objects. To argue otherwise would be to deny Jeff Koons, Gerhard Richter, Richard Prince, Louis Bourgeois, and artists ad infinitum any and all artistic authorship over their conceptual and creative creations (otherwise known in law as personal assets).

The facts indicate that the museum did not purchase the plans, model, installation, or half-finished installation, which if true would grant them the right to publicly display the art objects as artistic installation. Under U.S. Copyright Law and the VARA of 1990, the fact that Büchel materialized his ideas into "fine art" automatically grants Büchel a bundle of rights, among which are the right to protect his reputation, the right to protect his work from publicly display, and the right to make “derivative” works based on his drawings and physical models.

To continue to argue that Büchel was not physically present when the art objects were obtained and installed is to continue the romanticized and worn our argument of authenticity, aura, and the hand-made art object—a theory eviscerated by Duchamp and which any first-year art student from any two-year institution quickly learns. As Emma Bloomfield rightly points out, “I have never heard of a ready-made be called ‘a material.’”

Lastly, it would be erroneous, if not ignorant, to think that lawsuits are not fought on two battlefronts: a court of law and the media. Both parties know and understand quite well the power of digital ink. Let’s not pretend that it is only Büchel’s attorney who takes advantage of this space.


Dear Mr. Munoz-Sarmiento,

Thank you for your comment. There's a lot to take in, and I only have a limited time to respond at this moment (I'll try to do so more fully later), but first let me say that your point regarding the "larger judicial and legal frameworks" is well-taken; I'm not a lawyer, and don't approach the controversy from the perspective of one, but since the parties have moved into the legal arena, those frameworks are what really matter. As for the rest of your comment, I don't really disagree; when the dispute first attracted public comment, for instance, my first thought (scroll down to the comments) was that MASS MoCA should have had a contract that governed potential difficulties of this kind (that they didn't have a contract was not at that time known to me.)

The point about Duchamp is the one that interests me for further discussion, the merits of this particular case aside, but that will have to wait. Until then, may I suggest you read my posts on the affair more carefully? You seem to think that because I find the museum's arguments intriguing that I accept them, which I don't think my post indicates (for instance, "Büchel wasn't there for the view," etc.) Indeed, I've been fairly consistently arguing that the artist did not (as some have speculated) deliberately sabotage the exhibit, that however difficult he may be, he still has rights, and that the museum, however painful the situation might be for them, is taking the wrong approach. I may be missing "the point not by inches, but by miles" when I do so, but I don't believe the artist's defenders have any real cause for complaint.

Lastly, I have never said anything untoward or uncomplimentary about Donn Zaretsky, whose writings online I enjoy and respect. Aside from visits from Skadden Arps' ISP to this webpage surfacing in my referral logs, I have never knowingly had any contact with anyone from that firm. While I have criticized MASS MoCA in the past, and by implication its representatives, for not being more forthright regarding the situation, I fail to see how that means I am pretending anything, and I don't feel your final comment was justified. If you feel the arguments put forth by Skadden Arps are so ill-founded, you might want to take your own advice and not publicize them; I doubt I would have heard of them otherwise.

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