The dispute between the Massachusetts Museum of Contemporary Act (Mass MoCA) and Swiss artist Christoph Büchel sounds like an “only in the art world” tale of artistic presumption, temperament, and public funding. But there’s more (after the jump).
Called “Training Ground for Democracy,†the installation is intended to draw a viewer into a Grand Guignol maze in which artifacts of everyday Western culture — a movie theater, a home, a voting booth — are jammed together with scenes that seem to have been airlifted from a land of perpetual war and paranoia. In a recent walk through the space, the big elements, like the houses and the tanker truck, were striking.
Mr. Büchel was also concerned with the appearance of even the smallest detail, like a soiled rag hanging near a jail-cell sink or a dusty bag of sunflower seeds atop a television set. As the project grew, the museum says, this kind of obsessiveness began to have its costs. Even by the time the show should have opened, it had run well over budget, including $100,000 alone for the installation of the two-story house, which had to be cut into pieces and reassembled.
The museum bought a second mobile home for the space after Mr. Büchel disapproved of the first one; it reassembled the complete interior of a defunct movie theater, including the wallpaper and carefully numbered ceiling tiles; and it decontaminated the oil tanker, which had once been filled with No. 6 fuel oil.
Now the parties are in court, the museum seeking legal confirmation of its desire to show the installation, unfinished and partly shielded from public view; the artist seeking to enjoin just that. Büchel’s lawyer has a blog, and the scope of the artist’s legal claim is, in a word, extraordinary:
[T]he work is not merely a visual but also a physical experience; the design of the space itself, and the ways that the visitor is moved through it, are as much a part of the meaning of the artwork as the objects within it. To take just one example, to enter the gallery one must pass through the cinema that is an essential part of the work. There is no way to “cover” that up; the visitor experiences the work by moving through it, and being “inside” of it. Accordingly, the museum’s plan to allow visitor access to the work while “shielding the huge objects from view” will result in nothing other than the exhibition of a drastically distorted and modified version of the work, in willful violation of VARA as well as the parties’ clear understanding.
Does “the work” include the visitor’s physical experience? That’s plausible, maybe, in artistic terms, and maybe there’s a kernel of an agreement on which the artist might hang a contractual claim. But a copyright claim to anything other than the presentation of the materials themselves? That sounds farfetched. I doubt that “the meaning of the artwork” counts as a “work of a visual art” under the statute.
I’m not unsympathetic to the artist’s desire to have the work presented to the public in the manner that he chooses, and much modern art doesn’t fit easily into the forms of copyright law. Assuming that the argument is made in good faith (the Times story suggests other motivations), then the claim against the museum is being made using the tools available. But it’s weak.
The problem here is that the law draws a fairly clear division between rights to control access to the work, based on ordinary property principles, and rights to enjoy the intangible contained in the work, based on copyright. Büchel deliberately blends the two; the “intangible” that he’s created seems to be the access itself. This isn’t a sculpture, in a sense, but a piece of performance art — choreography, let’s say — in which the visitors are the performers. The legal question, then, is this: By proceeding with the installation without Büchel’s consent, is Mass MoCA inducing or contributing to an unauthorized public performance of (a derivative version) of the work? That sounds like a strange way to frame the question, but under current law, I think that it makes at least as much sense as the VARA argument. As framed by Büchel’s lawyer, the claim seems to go too far. If it’s a stretch to argue that the museum has some legal standing to control the visitor’s intangible “experience” of the work, and I think that it is, it’s likely a stretch too far to argue that the artist himself has that right.Â
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”?
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.
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