MA Museum of Contemporary Art v. Buchel

Filing 920100127

Opinion

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var WPFootnote1 = 'Of the District of Maine, sitting by designation.\
'

var WPFootnote2 = ' VARA was enacted as an amendment to the Copyright Act. See\
infra Section II. \
'

var WPFootnote3 = ' We consider the parties\' conflicting accounts of the key\
evidence in our summary judgment analysis, infra. \
\
'

var WPFootnote4 = ' Throughout the opinion, any reference to "Thompson" without\
a first name will refer to Museum Director Joseph Thompson. Nato\
Thompson will be identified by his full name.\
'

var WPFootnote5 = ' The letter, signed by Museum Director Joseph Thompson, was\
attached to an email sent by Nato Thompson. The proposal did not\
lay out a definitive budget for the project, although in a separate\
letter to Büchel the following day, Joseph Thompson stated "we\
think we\'ve got a $160,000 project on our hands in direct costs." \
In a reply email dated September 24, 2006, Büchel did not\
explicitly agree to or reject the $160,000 figure, but suggested\
that MASS MoCA get in touch with his two galleries, which might\
provide information regarding "potential sponsors like foundations"\
for the installation.              \
'

var WPFootnote6 = ' The Berne convention, developed at the instigation of Victor\
Hugo and first adopted in Berne, Switzerland in 1886, is "\'an\
international copyright treaty providing that works created by\
citizens of one signatory nation will be fully protected in other\
signatory nations, without the need for local formalities.\'" \
Phillips, 459 F.3d at 133 n.3 (quoting Black\'s Law Dictionary, 8th\
ed. (1999)). \
'

var WPFootnote7 = ' Under the Copyright Act, a plaintiff may elect to recover\
statutory damages instead of actual damages for each work infringed\
"in a sum of not less than $750 or more than $30,000 as the court\
considers just." 17 U.S.C. § 504(c)(1). If the copyright owner\
proves that the infringement was committed willfully, the court "in\
its discretion" may increase the award of statutory damages to "a\
sum of not more than $150,000." Id. at 504(c)(2). The award may\
also be reduced to $200 if the infringer proves that he or she was\
not aware "and had no reason to believe that his or her acts\
constituted an infringement of copyright." Id.\
'

var WPFootnote8 = ' The parties do not dispute that, if completed, "Training\
Ground for Democracy" would have been a sculpture and therefore a\
qualified "work of visual art" under VARA. Furthermore, VARA\'s\
legislative history states that "[t]he term \'sculpture\' includes,\
but is not limited to, castings, carvings, modelings, and\
constructions." House Report at 11 (1990), as reprinted in 1990\
U.S.C.C.A.N. at 6921 (emphasis added). The Second Circuit in\
Carter similarly considered VARA\'s application to a "very large\
\'walk-through sculpture\' occupying most, but not all, of [a]\
building\'s lobby." 71 F.3d at 80; see also id. at 84 ("Concededly,\
considered as a whole, the work is a sculpture and exists only in\
a single copy.").\
'

var WPFootnote9 = ' Section 501(a) states, in relevant part, that "[a]nyone who\
violates any of the exclusive rights of the copyright owner . . .\
or of the author as provided in section 106A(a) [VARA] . . . is an\
infringer of the copyright or right of the author, as the case may\
be." The provision further states that, with the exception of the\
criminal penalties provided under section 506, "any reference to\
copyright shall be deemed to include the rights conferred by\
section 106A(a)." \
'

var WPFootnote10 = ' As provided in 17 U.S.C. § 106A(c)(3), VARA specifically\
excludes certain categories of artwork listed in section 101 of the\
Copyright Act:\
\
              (A) (i) any poster, map, globe, chart, technical\
drawing, diagram, model, applied art, motion\
picture or other audiovisual work, book,\
magazine, newspaper, periodical, data base,\
electronic information service, electronic\
publication, or similar publication; \
                   (ii) any merchandising item or advertising,\
promotional, descriptive, covering, or\
packaging material or container; \
                   (iii) any portion or part of any item\
described in clause (i) or (ii); \
\
              (B) any work made for hire \
\
17 U.S.C. § 101.\
'

var WPFootnote11 = ' Nothing in the language of VARA or the definitions provision\
of the Copyright Act permits distinct treatment for the rights of\
copyright owners whose works are complete and those whose works are\
still in progress. We therefore reject the "special clarity"\
standard articulated by the district court for proving a violation\
of an artist\'s VARA rights in an unfinished work of art.\
'

var WPFootnote12 = ' The Second Circuit ultimately found that the sculpture was\
exempted from VARA protections because it was a "work for hire."\
See 71 F.3d at 86-88.\
'

var WPFootnote13 = ' Our decision in Phillips is not inconsistent with this\
holding. In Phillips, we held that VARA did not apply to site-specific works of art, in which the particular location of the\
artwork is one of its physical elements and removal of the artwork\
destroys it. 459 F.3d at 140. We observed that VARA does not\
explicitly address protection for site-specific works despite the\
impact of such works on real property interests, id. at 142, and we\
declined to interpret VARA in a way that was neither supported by\
the statutory language nor sensible as policy. See id. at 142-43. \
Here, the plain language controls, and there is no conflict with\
"\'long-established and familiar principles\'" of the common law. \
Id. at 142 (quoting United States v. Texas, 507 U.S. 529, 534\
(1993)).\
'

var WPFootnote14 = ' In some jurisdictions, the right of integrity also generally\
protects artwork from destruction. See Carter, 71 F.3d at 81. In\
the United States, however, VARA protects only works of "recognized\
stature" from destruction. 17 U.S.C. § 106A(a)(3)(B). That right\
is not implicated in this case. \
'

var WPFootnote15 = ' Article 6bis of the Berne Convention, which is titled "Moral\
Rights," includes a heading that lists among those rights "to\
object to certain modifications and other derogatory actions." The\
provision itself states, in relevant part:\
\
              (1) Independently of the author\'s economic rights, and\
even after the transfer of the said rights, the author\
shall have the right . . .to object to any distortion,\
mutilation or other modification of, or other derogatory\
action in relation to, the said work, which would be\
prejudicial to his honor or reputation.\
\
Berne Convention for the Protection of Literary and Artistic Works\
art. 6bis, Sept. 9, 1986, S. Treaty Doc. No. 99-27, 1161 U.N.T.S.\
30.\
'

var WPFootnote16 = ' Based on revisions to the statutory language made during the\
legislative process, Patry concludes that "where an intentional\
distortion, mutilation, or other modification has already occurred,\
the plaintiff need not prove harm to his or her honor or\
reputation." 5 Patry, supra, § 16:22. He further states, without\
supporting citation, that "[i]t was understood informally" that the\
final version of the provision was designed "to permit a cause of\
action . . . without the need for proof that the artist\'s honor or\
reputation was harmed." Id. To the extent Patry\'s conclusion is\
that no evidence of harm is necessary, we reject it as inconsistent\
with the available legislative history, as discussed above. It may\
be, however, that Congress\'s concern was only that a plaintiff not\
be required to prove the actual amount of damage to reputation, but\
could opt for the statutory damages remedy upon showing prejudice. \
See 17 U.S.C. §§ 501(a), 504(c) (stating that a VARA plaintiff may\
elect to recover statutory damages instead of actual damages and\
profits).\
'

var WPFootnote17 = ' Section 106A(a)(3) states that the author of a work of\
visual art shall have the right "(A) to prevent any intentional\
distortion, mutilation, or other modification of that work which\
would be prejudicial to his or her honor or reputation" and the\
right "(B) to prevent any destruction of a work of recognized\
stature."\
'

var WPFootnote18 = ' "I wrote very clearly immediately to [Dante Birch, the\
Museum\'s production manager] not to use the method we talked about\
and stop it . . . , as well cinder block walls have to be partly\
redone that have been built without my instruction . . . ."\
'

var WPFootnote19 = '   The term "Plan B" appears in the record in a February 14,\
2007 email from Thompson to other Museum staff. \
'

var WPFootnote20 = ' This assertion by MASS MoCA was made to support its\
contention, rejected by the district court and halfheartedly\
renewed on appeal, that the unfinished installation might\
constitute a joint work of Büchel and the Museum. A claim of joint\
authorship requires proof that the parties "entertain in their\
minds the concept of joint ownership." Thomson v. Larson, 147 F.3d\
195, 201 (2d Cir. 1998) (quotation marks and citation omitted). \
Here, multiple facts indicate that the parties\' understanding from\
the outset was that "Training Ground" was solely a Christoph Büchel\
work of art. The Museum\'s December 6, 2006 postponement\
announcement described the work as "Christoph Büchel\'s vast\
installation" and, as reflected in the emails described above,\
Museum personnel internally recognized Büchel as the artist, at\
least as "Training Ground" was originally conceived. It is also\
undisputed that, at the outset of their relationship, the parties\
had agreed that Büchel alone would hold the copyright in the\
finished work. These facts negate any claim of joint authorship.\
'

var WPFootnote21 = ' In his deposition, Thompson testified as follows:\
\
              [T]here was a whole long list of things for which we had\
adequate direction and understanding that we could\
continue forward to a certain point. When the work began\
to get very detailed and would require input from\
Christoph, if we could get the input from him, we would\
continue, and if we didn\'t, we would stop.\
'

var WPFootnote22 = ' Thompson told an outside consultant for the Museum in March\
2007 that a curator at the New Museum in New York had just viewed\
the installation "and said it was one of the best works he\'s seen\
in the past three years." \
'

var WPFootnote23 = ' Indeed, the Boston Globe\'s art critic, Ken Johnson,\
described the exhibit as a "self-serving photo and text display"\
that implicitly conveys criticism of Büchel for the failure of\
"Training Ground for Democracy." See MASS MoCA has Mishandled\
Disputed Art Installation, supra. The juxtaposition left Johnson\
with the impression that MASS MoCA was "exacting revenge" against\
the artist "by turning his project into a show that misrepresents,\
dishonors, vilifies, and even ridicules him." Id.\
'

var WPFootnote24 = ' In addition to the journalists and Museum personnel noted\
earlier, a newspaper reported that the mayor of North Adams had\
seen the exhibit twice, once with Governor Deval Patrick. See \
Behind doors, a world unseen, supra.\
'

var WPFootnote25 = ' For example, in an email sent on September 11, 2006 to\
curator Nato Thompson, the Museum\'s director (Joseph Thompson)\
said: "I assume you\'ve already laid out the general idea [to\
Büchel] (we build it, and it belongs to you)," and also noted that\
Büchel had the right to "sell all or part of it." The Museum\'s\
proposed contract, which was never signed, would have conferred\
ownership on Büchel. It stated that, "[u]pon termination of the\
exhibition, the fabricated work shall be owned outright by you,\
including all copyrights and related preparatory materials." \
'

var WPFootnote26 = ' Our analysis of the right-of-integrity tarpaulin claim\
disposes as well of Büchel\'s contention that covering the\
installation constituted a modification of the original work that\
resulted in the creation of a derivative work.\
'

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