A federal district judge ruled on Friday that the Visual Artists Rights Act does not prevent the Massachusetts Museum of Contemporary Art (Mass MoCA) from exhibiting an unfinished installation by the Swiss artist Christoph Büchel. I blogged about the claim earlier, and it’s interesting to compare my preliminary thoughts with what has happened in the case. More below the jump.
The VARA gives certain artists the right to prevent unauthorized distortion or mutilation of their work. As I read the report of the case — and for the moment, all I have to go on is the New York Times’ story — Büchel’s reliance on the VARA left him in a box that the judge wouldn’t let him escape.
Büchel’s core argument is that the norms of the art world require deference to the artist’s conception of whether or not a work of art is complete. Because the VARA is intended to protect artists’ rights, it likewise should be interpreted to require that distortion or mutilation be measured from the perspective of the artist. In Büchel’s artistic judgment, the Mass MoCA installation is not complete. In his judgment, exhibiting an incomplete work of art is tantamount to mutilation or distortion. [Here’s a link to Büchel’s brief.]
The VARA, however, refers to the “work of visual art” as the predicate for liability. In the text of the statute, this likely means that a “work of visual art” is a species of a “work of authorship,” largely because it’s difficult to conceive of the term meaning anything else. But much as the phrase “work of authorship” is central to copyright law generally, it is an empty vessel. There is no free-standing definition of “the work.” There is a definition that specifies what to do with works “prepared over a period of time,” but the reasonable interpretation of that piece of the statute is that it protects chapters of books and movements of symphonies — not strokes of a pen or chips from a chisel. In a case such as this one, that omission creates a problem. What does the law make of unauthorized re-use of unfinished works?
One way to proceed would be to conclude that a finished work is retrospectively decomposable into all of its prior drafts and models and elements. Any unauthorized reproduction or distribution or modification of what the artist did along the way is fair game for liability, in the same way that unauthorized use of the final product is fair game.
The judge in the Mass MoCA litigation, however, apparently tried to give the term “work of visual art” some real meaning, and the judge plausibly construed the phrase to mean final or fully-realized work. Only complete works get VARA protection. Given Büchel’s contention that his work was unfinished, the judge’s construction left him without a VARA leg to stand on.
In the comments on my earlier post, I pointed out this gap between Büchel’s conception of a “work of visual art” and the text of the statute. The merits of this particular claim aside, I think that the judge is onto something. Copyright’s post-1976 reluctance to give content to the idea of a “work” is catching up to the law. I’ve alluded to that problem in the context of law and contemporary culture generally [link here] , and Justin Hughes has made a similar case in the context of copyright [link here].
Donn Zaretsky, Büchel’s lawyer, is an experienced specialist in art law and blogs thoughtfully at The Art Law Blog. In the run-up to Friday’s decision, there was a lot of media coverage of the dispute, much of which is collected there, and I expect that in the wake of the decision he will post more details. Or, as least I hope that he does.
Meanwhile, in my original post on this case I tossed out the possibility that the claim really sounds in trademark policy rather than in copyright or the VARA. Apparently, the judge yesterday gave the Mass MoCA permission to go forward with the exhibition — so long the museum adequately informs visitors that the work is unfinished. As I read the statute, this is neither a VARA remedy nor a copyright remedy. But — Dastar notwithstanding — it is a trademark remedy, and perhaps a right one.