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.)
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.
Posted by: Sergio Munoz-Sarmiento | July 28, 2007 at 04:37 PM
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.
Posted by: JL | July 29, 2007 at 10:38 AM