Comments on: Mass MoCA Mess http://madisonian.net/2007/05/24/mass-moca-mess/ a blog about law, tech, culture, and related things Sat, 11 Feb 2012 02:59:42 -0600 http://wordpress.org/?v=2.8.4 hourly 1 By: Mike Madison http://madisonian.net/2007/05/24/mass-moca-mess/comment-page-1/#comment-212088 Mike Madison Fri, 25 May 2007 02:55:07 +0000 http://madisonian.net/archives/2007/05/24/mass-moca-mess/#comment-212088 The VARA is copyright-related -- an artist can't have VARA rights unless there is a "work of visual art," as defined in section 101. So the question is "what is the work," and that's where the argument about the visitor's experience makes things murky. Buchel clearly (and understandably) believes that the "experience" is integral to the "work," but that belief just doesn't fit into the conventional copyright understanding of a "work." And I think that the analogy to the unfinished canvas doesn't quite fly, for similar reasons. If the painting is really unfinished, then there is no "work" for copyright or VARA rights to attach to. If the museum finishes and displays it and represents it as the artist's work, there are legal claims to pursue -- unjust enrichment; unfair competition; misappropriation; breach of an implied contract, perhaps; even trademark infringement -- but not copyright claims. As I noted in the post I have a fair amount of sympathy for Buchel, notwithstanding what seems to be a pretty intransigent attitude on his part as well as what seems to be quite the beating that he's taken both in the Times and in the Boston press. Respecting the artist's intention when presenting art, and especially sculpture, is a central value in the art world, and usually in the museum/curator world as well. I just think that the copyright/VARA claims here are square pegs in round holes. Maybe the "performance" angle that I blogged about above isn't quite right, either; maybe (Dastar notwithstanding) this is more of a trademark problem. I also am a big fan of Christo, who I understand incorporates opposition to his installations into an "it's all part of the artistic process" attitude. Maybe, as in Christo's case, it's really a question of institutional norms clashing with legitimate artistic expectations in a way that the legal system mediates out of necessity (there being no other good forum) but inevitably, mediates badly. The VARA is copyright-related — an artist can’t have VARA rights unless there is a “work of visual art,” as defined in section 101. So the question is “what is the work,” and that’s where the argument about the visitor’s experience makes things murky. Buchel clearly (and understandably) believes that the “experience” is integral to the “work,” but that belief just doesn’t fit into the conventional copyright understanding of a “work.” And I think that the analogy to the unfinished canvas doesn’t quite fly, for similar reasons. If the painting is really unfinished, then there is no “work” for copyright or VARA rights to attach to. If the museum finishes and displays it and represents it as the artist’s work, there are legal claims to pursue — unjust enrichment; unfair competition; misappropriation; breach of an implied contract, perhaps; even trademark infringement — but not copyright claims.

As I noted in the post I have a fair amount of sympathy for Buchel, notwithstanding what seems to be a pretty intransigent attitude on his part as well as what seems to be quite the beating that he’s taken both in the Times and in the Boston press. Respecting the artist’s intention when presenting art, and especially sculpture, is a central value in the art world, and usually in the museum/curator world as well. I just think that the copyright/VARA claims here are square pegs in round holes. Maybe the “performance” angle that I blogged about above isn’t quite right, either; maybe (Dastar notwithstanding) this is more of a trademark problem. I also am a big fan of Christo, who I understand incorporates opposition to his installations into an “it’s all part of the artistic process” attitude. Maybe, as in Christo’s case, it’s really a question of institutional norms clashing with legitimate artistic expectations in a way that the legal system mediates out of necessity (there being no other good forum) but inevitably, mediates badly.

]]> By: Donn Zaretsky http://madisonian.net/2007/05/24/mass-moca-mess/comment-page-1/#comment-212082 Donn Zaretsky Fri, 25 May 2007 01:29:46 +0000 http://madisonian.net/archives/2007/05/24/mass-moca-mess/#comment-212082 I think you're overcomplicating things here. It's not so much a copyright issue as it is a Visual Artists Rights Act issue. VARA does give artists the right to prevent the distortion of modification of their work, and that's exactly what's happening here. By (partially) "shielding" some of the objects from view, the museum is presenting visitors with a distorted version of the overall work -- exactly what VARA prohibits. What's more, much of what visitors will see was assembled by the museum staff to approximate what they think the artist intended -- as I said in the post you quote, it's as if a painter left a canvas unfinished and the museum picked up the brush and completed the painting, declared it to be the artist's work, and showed it to the world. What could be a clearer case of "distortion or modification"? I think you’re overcomplicating things here. It’s not so much a copyright issue as it is a Visual Artists Rights Act issue. VARA does give artists the right to prevent the distortion of modification of their work, and that’s exactly what’s happening here. By (partially) “shielding” some of the objects from view, the museum is presenting visitors with a distorted version of the overall work — exactly what VARA prohibits. What’s more, much of what visitors will see was assembled by the museum staff to approximate what they think the artist intended — as I said in the post you quote, it’s as if a painter left a canvas unfinished and the museum picked up the brush and completed the painting, declared it to be the artist’s work, and showed it to the world. What could be a clearer case of “distortion or modification”?

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