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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) didnít 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 didnít violate Buchelís 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 wasnít sure. He knew he was walking through a whole lot of uncharted legal territory with a set of facts that were as surreal as Buchelís artistic vision.

So it wasnít 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 Buchelís copyrights by allowing a few people to view the installation covered with tarps. Itís important to note that the appeals court did not say Buchel won; it only said that he hasnít lost. So the case returns to Springfield, and, if the parties donít 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, heís 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, Buchelís 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 thatís the right result, a finding of liability but no damages. As they say in the legal biz, ďhard cases make bad law,Ē meaning where youíve 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.

Letís face it, MASS MoCA is not blameless in this. This was an extremely difficult situation but it was partially of the museumís 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 wasnít a victim.

So stay tuned. Chapter Three in the Christoph Buchel-MASS MoCA saga is coming up.

óPaul Rapp


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