The First Circuit Court of Appeals has bolstered the protection of artists’ rights in a January 27 decision that gives valuable clarification of the Visual Artist Rights Act (“VARA”). The opinion in Massachusetts Museum of Contemporary Art Foundation, Inc. v. Büchel is of particular interest because VARA, which confers on visual artists the “moral” rights of attribution and integrity, is rarely the subject of appellate review.
Christoph Büchel’s vision for “Training Ground for Democracy,” a football field-sized work of installation art, called for bringing together a vast array of objects, many of them large. The Swiss artist’s list included a Cape Cod cottage, a carousel, a bar from a tavern, an old-time movie theater and several large vehicles. Mass MoCA is among the few museums that can exhibit works of such gargantuan scale.
The collaboration between artist and museum broke down, aggravated by the fact that Mass MoCA had spent more than double the amount budgeted for the installation. Büchel walked off, and the museum tried to assemble as much of the installation as possible according to the artist’s last instructions. The parties’ relationship then took on new life as federal court litigation, in what might perversely be considered a reformulation of the project as performance art.
The museum filed suit in May 2007, asking the federal judge in Springfield for a declaration that it was entitled to display the unfinished work. Büchel responded with several counterclaims, including the assertion that showing his unfinished installation would violate his VARA rights.
As recounted in our earlier article, the judge ruled that VARA did not protect unfinished artworks, and that the museum could show the work with an appropriate disclaimer. Even if VARA did apply, said the judge, the proposed display would not violate Büchel’s rights of attribution and integrity. The judge also ruled that the exhibition of the artist’s unfinished installation would not infringe Büchel’s exclusive right, under copyright laws, to publicly display his work or to create derivative copies.
In its January decision, the court of appeals rejected the lower court’s “skepticism” about the applicability of VARA and stated without qualification that the statute does apply to unfinished works of art. The higher court reasoned that VARA is part of the Copyright Act; while VARA itself does not specify when an artistic work becomes subject to VARA, the Copyright Act itself states that a work is created when it “is fixed” in a tangible medium of expression and that “where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time.”
Artists will be heartened by the court’s view that VARA’s protection of the “right of integrity” allows an artist to prevent distortions or modifications of their works that “cause prejudice to [his] honor or reputation.” The court said there was enough evidence of such prejudice resulting from the museum’s changes to Bϋchel’s artwork that the judge should have allowed the case to go to a jury.
Specifically, the court pointed to a factual dispute as to whether the museum had modified the work over the artist’s objections and to his detriment, which precluded summary judgment. While the museum claimed that it had tried to fulfill the difficult, and in its view often unreasonable, demands made by the artist, Büchel charged the museum with “sabotage acts” by substituting its own judgment and altering the substance and meaning of his work.
The evidence, said the First Circuit, could lead a jury to find that the museum had forged ahead with the project knowing that continuing construction in the artist’s absence “would frustrate – and likely contradict – Bϋchel’s artistic vision.” Accordingly, “a jury issue exists as to whether these actions effected an intentional distortion or other modification” of the work that would subject Mass MoCA to liability under VARA. Similarly, the Court determined that there was sufficient evidence from which a jury might “conclude that the museum’s alterations had a detrimental impact on Bϋchel’s honor or reputation.”
The appeals court resolved a question that had been under debate regarding the artist’s burden of proof when seeking a remedy for breach of his or her right of integrity. It concluded that the artist must show “prejudice” to his or her honor or reputation whether the remedy sought is injunctive relief or damages. As for the right of attribution, the court held that VARA does not provide a damages remedy.
Because the museum’s dismantling of the work at issue “prevented the further use of” the artist’s name in connection with the work, the Court of Appeals concluded that it was unnecessary to address the artist’s attribution claim.
The court likewise rejected Büchel’s allegation that the museum’s act of covering the work with tarpaulins before it was dismantled was also an act of distortion:
This is not to say that Mass MoCA was necessarily acting with pure intentions when it created “Made at Mass MoCA” [an exhibit airing issues raised in the course of complex collaborative projects between artists and institutions] in close proximity to the tarped “Training Ground.” It might be a fair inference that the Museum was deliberately communicating its anger with Bϋchel by juxtaposing his unfinished work with the successful artistic collaborations depicted in its new exhibition.
Nonetheless, the court concluded that “[t]he right of integrity under VARA, however, protects the artist from distortions of his work, not from disparaging commentary about his behavior.”
Bϋchel also failed to gain traction with his argument that the museum had violated his exclusive right to make derivative works based upon his underlying work, stating that Bϋchel “does not explain how the modified ‘Training Ground’ was sufficiently original and distinctive within the meaning of the Copyright Act to qualify as a derivative work.” This portion of the opinion is dissatisfying in its vague and cursory treatment, leaving room for problematic interpretation in the future. The court likely took this approach, however, because “Bϋchel’s undeveloped argument” on this point was “so perfunctory” that the court deemed the claim waived.
Addressing the potential import of its decision on future collaboration projects, the Court observed that:
Although the artist’s vision must govern, that principle does not prevent collaboration at the implementation level so long as the artist’s vision guides that implementation. Here, Bϋchel alleges a campaign of intentional distortion and modification of his work in which Museum personnel repeatedly ignored his express wishes. Our holding that the summary judgment record precludes an affirmance of the district court on this claim may serve as a cautionary tale to museums contemplating similar installations in the future – guiding them to document the terms of their relationship and obtain VARA waivers where necessary – but it does not prevent museums or other collaborators from working cooperatively with artists on such non-traditional artworks.
While perhaps neither the artist nor the museum emerged a clear “winner,” the opinion at least offers guidance for future collaborative art efforts. Every museum and gallery owner will scrutinize the First Circuit’s decision, and will no doubt endeavor to press artists to sign away their rights under VARA as a condition of exhibiting their work. Whether such rights survive in a particular situation may turn on which side has the greater bargaining power.