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Post-Apocalyptic
Precedent
Remember
a few years ago when MASS MoCA got into a huge brouhaha with
Swiss installation artist Christoph Buchel? Sure you do. Buchel
was putting a massive art thing in their football field-sized
Building 5 gallery, a whole post-apocalyptic town that was
supposed to include a house, a theater, a prison, a burnt-out
747 fuselage, concrete walls, and 150 tons of stuff. When
the $300,000-or-so budget ran out (surprise!), Buchel refused
to scale down the project, allegations started to fly, and
all hell broke loose.
The art world went generally berserk, with commentators outside
of Berkshire County uniformly slamming MASS MoCA as somehow
being profoundly insensitive to the rights of artists, and
commentators within Berkshire County (myself included) coming
down on the side of the home team, arguing essentially that
MASS MoCA had been blindsided by a grandstanding petulant
dickhead.
The whole thing wound up in federal court in Springfield,
Mass., where after an accelerated mini-case the judge sided
with the museum, stating that an unfinished work (which this
unquestionably was) didn’t qualify for the moral-rights artist-integrity
provisions of the Visual Artists Rights Act (known to art-law
geeks as VARA), and that MASS MoCA didn’t violate Buchel’s
copyrights by throwing a tarp over the whole shebang and letting
a few people walk through the building to gaze at the hulking
mountains of tarp-covered junk.
It was all a satisfying result for those of us MASS MoCA fans
up here in the cheap seats, but was it a correct interpretation
of the law? Even the judge in Springfield stated in his lengthy,
thoughtful decision that he wasn’t sure. He knew he was walking
through a whole lot of uncharted legal territory with a set
of facts that were as surreal as Buchel’s artistic vision.
So it wasn’t exactly a surprise when the federal appeals court
in Boston reversed the decision, ruling that unfinished works
indeed could be subject to the protections of VARA, and that
MASS MoCA might well have infringed Buchel’s copyrights by
allowing a few people to view the installation covered with
tarps. It’s important to note that the appeals court did not
say Buchel won; it only said that he hasn’t lost. So the case
returns to Springfield, and, if the parties don’t settle this
thing, it will go to trial.
And what a bizarre trial this would be. First, my understanding
of the law here is that even if Buchel proves that MASS MoCA
technically violated his rights under both VARA and the Copyright
Act, he’s going to need to prove damages; under VARA, the
damages would have to be somehow connected to damage to his
reputation and integrity as an artist, and under the Copyright
Act, the actual pecuniary loss he suffered as a result of
a few people looking at some tarp-covered junk.
Damage to his reputation and integrity? Outside of Berkshire
County, where Buchel is uniformly regarded as a jerk, a very
good argument could be made that this whole mess has enhanced
his reputation, and to an extraordinary degree. As my pal,
arts writer John Seven in North Adams, points out, Buchel’s
sure been busy with high-profile installations in Europe and
Asia lately. And in the twisted, often nihilistic and cynical
eye of avant-garde art high society, the MASS MoCA affair
has elevated Buchel to the status of A-list, cause-celebre,
bad artsy boy. Indeed, when the whole controversy was unraveling
two years ago, there was speculation that it was all being
staged by Buchel and MASS MoCA as a performance art piece
to garner headlines and publicity.
And actual damages suffered by Buchel as a result of covering
the thing with tarps, and telling people what had happened,
and letting them look: Um, let me get my calculator. OK. Zero!
But maybe that’s the right result, a finding of liability
but no damages. As they say in the legal biz, “hard cases
make bad law,” meaning where you’ve got a particularly strange
set of facts, and you try to bend the law to come up with
what you believe is a just result, you often create a precedent
that will have very bad negative consequences for somebody
else down the road. This case is a perfect setting for that
to happen.
Let’s face it, MASS MoCA is not blameless in this. This was
an extremely difficult situation but it was partially of the
museum’s own making, and some decisions were made that in
hindsight were rather stupid. To absolve MASS MoCA of all
legal blame by a cribbed reading of the law would potentially
create a legal framework by which institutions could screw
artists in all kinds of situations where the equities were
reversed and the institution wasn’t a victim.
So stay tuned. Chapter Three in the Christoph Buchel-MASS
MoCA saga is coming up.
—Paul
Rapp
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