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Legal protection for creative professionals, cultural institutions, and non-profits
Legal and ethical considerations
What do you get when you combine a Swiss artist, a football field-sized museum gallery, and $300,000 worth of materials, including a two-story Cape Cod-style house, a movie theater, cinderblock walls, sea containers, a mobile home, multiple vehicles, and thousands of found objects? An opportunity to discuss the legal and ethical implications of exhibiting unfinished commissioned works.
In Massachusetts Museum of Contemporary Art Foundation, Inc. v. Christoph Büchel1, Judge Michael A. Posnor ruled that the Massachusetts Museum of Contemporary Art (Mass MoCA) had the right to display an immense unfinished installation by Christoph Büchel. 2 Concluding that the Visual Artists Rights Act (VARA) does not prohibit showing an unfinished work of art simply because it is unfinished, the Judge determined that as long as the museum made clear that the work was not completely realized and was not authorized by the artist, there was no reason the installation could not be shown.3 Despite legal authority to exhibit the unfinished work, Mass MoCA chose instead to dismantle the installation without putting it on public display.4
The ruling is the latest in a line of cases delineating the degree to which the “moral rights” of artists are protected under American law. It also raises questions about the interplay between legal constraints and ethical responsibilities regarding museum commissioned works. Legal critiques have expressed skepticism that VARA has provided any protections to artists that are not already available under other laws 5 and concluded that the law has not had a significant impact on the way artists conduct their work.6 Other commentators believe that VARA has had a significant impact on artists’ rights.7
Whatever the verdict on VARA, the notoriety of the “Mess at Mass MoCA” should serve as a reminder to museums that not only must they conduct their installation commissioning practices with due care and an eye to the law, but also with an expansive view of the applicable legal and ethical principles involved. Insisting on written commission agreements, and establishing clear museum policies on commissioned works which incorporate these legal and ethical principles, can help to manage expectations and minimize disputes. However, important as these practices are, the relationship between artist and museum involves more than a simple commercial business transaction. Ultimately the relationship between artist and museum depends on creating and maintaining an atmosphere of mutual trust and a willingness on the part of both to work out their differences when they arise.
American intellectual property law has traditionally focused exclusively on protecting economic rights in creative works. 8 With one important exception,9 United States copyright laws provide artists with exclusive rights to control the exploitation of their work, including the rights of reproduction, adaptation, distribution, and, for certain works, the rights of performance and display.10 These rights can be alienated or transferred by the artist under certain circumstances.11 Importantly, these copyrights are separate and distinct from ownership of the physical object created by the artist12 and do not preclude the owner of the work itself from displaying it publicly.13
In addition to protecting the economic interests of artists, most Western European countries have long incorporated the concept of “moral rights” in their intellectual property laws. 14 Viewing the work of an artist as an extension of the artist’s self, moral rights seek to preserve the reputation of the artist by protecting the integrity of their work.15 Moral rights primarily consist of the right of attribution and the right of integrity.16 Some moral rights schemes also protect an artist’s right to determine when and how a work may be distributed to the public.17 French law, for example, recognizes the right of “divulgence” (droit de divulgation) under which an artist has the exclusive right to “divulge” the work, that is, to determine when it is finished. As early as 1845, French courts held that only the artist knows when his work is finished and that "unauthorized exposure of unfinished paintings is an infringement of the right of divulgence."18
Although Western European copyright traditions provide an interesting contrast to the American approach, it is important to keep in mind Stephen Weil’s admonition that “copyright law is essentially territorial”:
Regardless of an artist’s birthplace, citizenship, domicile, or habitual residence, and regardless as well of where the artist’s work was created, the only copyright provisions that the courts of the United States will apply to the artist’s work are those to be found in the United States’ own Copyright Act. 19
It is perhaps equally important to observe that museums do not operate exclusively in courts of law. They also operate in the court of public opinion. Increasingly, the court of public opinion is international in scope. As a result, foreign legal concepts such as “moral rights,” which may not be recognized by American courts and thus do not impose any direct legal obligation on American museums, may nevertheless have an impact on how museums choose to conduct themselves.
Several notable examples of the limitations of the traditional American approach to copyright protection include mutilation of important sculptures by Alexander Calder, 20 Isamu Noguchi, and Richard Serra,21 and misattribution of a mural by William Smith22 among others. None of these artists had recourse under then-existing copyright laws.23 In response, beginning with California in 1979, ten states enacted laws to protect the attribution and integrity rights of artists.24 When the United States became a member of the Berne Convention for the Protection of Literary and Artistic Works in 1989, U.S. copyright law nominally included moral rights by virtue of that treaty.25 The following year Congress specifically incorporated limited moral rights into American copyright law through enactment of the Visual Artists Rights Act of 1990 (“VARA”).
VARA provides specific attribution and integrity rights for creators of works of visual art, including the right to prevent the destruction of works of “recognized stature.” 26 The Act applies only to certain types of visual art including paintings, drawings, prints, sculptures, and still photographs produced in limited editions of 200 or fewer copies.27 Other common forms of “visual art” including posters, books, and videos are specifically excluded from the definition of “work of visual art,” as are advertisements28 and works made for hire.29 Whether a work falls within the definition is based not on the media or materials used, but on the “generally accepted standards of the artistic community.”30 A work does not need to be “final” to be covered by VARA.31
Under VARA, artists have the right to claim authorship in a work of visual art and to prevent the use of the artist’s name in connection with any work of visual art that the artist did not create 32 or which has been altered in a way that “would be prejudicial to his or her honor or reputation.”33 Artists also have the right to prevent the intentional alteration of a work which would be harmful to the artist’s “honor or reputation”34 and to prevent the intentional or grossly negligent destruction of a “work of recognized stature.”35
VARA contains a number of exceptions which are of particular importance to museums. Alterations to a work which are caused by negligence 36, the passage of time or the nature of the materials37, conservation or public presentation38, are not actionable under VARA. In addition, the attribution provisions of VARA do not apply to reproductions or other uses of the work.39 For works created after June 1, 1991, rights under VARA are limited to the life of the artist, and for jointly created works, the life of the last surviving artist.40
For works created prior to June 1, 1991, to which title has not been transferred by the artist, rights under VARA run for the same period as copyright protection, currently life of the author plus 70 years. 41 Only the artist has the attribution and integrity rights conferred by VARA. These rights cannot be transferred but they can be waived in writing by the artist or, in the case of joint works, by one of the co-creators.42 Remedies under VARA are the same as those for copyright infringement, including the right to enjoin a prospective violation and to collect statutory damages for a violation which has already occurred.43 VARA preempts state law to the extent that those statutes provide equivalent rights.44 VARA also contains special provisions for works of visual art installed in buildings.45
The Massachusetts Museum of Contemporary Art (Mass MoCA), housed in a former mill factory complex in North Adams, is home to one of the largest exhibition galleries in America — known as Gallery 5. Mass MoCA is dedicated to the creation and exhibition of cutting-edge contemporary art. 46 In the fall of 2006, Mass MoCA commissioned an installation by Swiss artist Christoph Büchel, known for creating large, politically charged “hyper-realistic” built environments. Entitled “Training Ground for Democracy,” the work was intended to be an experiential statement about life in the post-911 world — the “Guernica of our times” according to Mass MoCA’s Director.47
A dispute soon developed, with Mass MoCA expressing concern over the growing cost and scope of the project, and Büchel objecting to the museum’s handling of the installation. 48 A stalemate ensued during which the objects in Gallery 5 sat covered with tarps. Finally in March 2007, Mass MoCA’s Director sent Büchel an ultimatum — finish the installation, remove it, and reimburse the museum for its costs (estimated at over $300,000), or agree to allow the museum to either remove the materials or exhibit the unfinished installation. When Büchel’s attorney responded that allowing public access to the unfinished work would violate his client’s rights under VARA, Mass MoCA filed suit in federal court for a declaratory judgment on the museum’s right to exhibit the unfinished work.49
Büchel then filed a counterclaim alleging violation of his rights of attribution and integrity under VARA and asked for an injunction against the museum’s threatened public exhibition of the work. Büchel argued that “to display a work of art that the artist does not endorse as finished and that is different from that he intended to display….is a misleading account of his work” and therefore actionable under VARA. 50
That is, the act of displaying an unfinished work without the artist’s permission constitutes an intentional “distortion” of the work which would damage the artist’s honor and reputation, and as such violates the artist’s right of integrity under Section 106A(a)(3) of VARA.51 Büchel’s argument is best understood as an attempt to import the moral rights concept of “droit de divulgence” into VARA.52
Judge Posnor denied Büchel’s injunction. According to news reports, the judge concluded that VARA did not apply because it contains no provision which would prevent the exhibition of an unfinished work of art “simply because it is unfinished.” As long as the work is clearly identified with a disclaimer that makes clear to viewers that the work is “an unfinished project that does not carry out the artist’s original intent” there is no legal basis for preventing the installation to be displayed. 53
Judge Posnor’s ruling makes sense, because even if the act of exhibiting an unfinished work could be considered a “distortion” for the purposes of VARA, this would not bar the exhibition of the work, which Mass MoCA has a right to do under Section 109 of the Copyright Act. VARA would only prevent the museum from attributing the unfinished work to the artist if the artist objects. VARA applies to the work of art itself, not to the circumstances under which it is displayed. The circumstances under which a work is displayed do not trigger the integrity provisions of VARA. The Act also expressly states that modifications which are the result of “public presentation” are not “distortions” actionable under VARA. 54
As the ruling in Mass MoCA v. Büchel and prior cases indicates, the “moral rights” protected by VARA are limited in scope and its provisions will be narrowly applied by the courts. Even so, museums must be sensitive to the legal and ethical principles expressed under the concept of “moral rights” in conducting their commissioning activities. Although Mass MoCA won the right to display “Training Ground for Democracy” as an unfinished work, the museum’s Director decided instead to dismantle the work out of respect for the artist’s view. 55
According to some commentators, the “Mess at Mass MoCA” could have been averted if the Museum had followed its standard policy of negotiating a written commission agreement. 56 It is true that commissioning museums are sometimes reluctant to enter into specifically negotiated contracts with artists for fear of turning the aesthetic process into a base contractual relationship. In the absence of clearly articulated expectations misunderstandings are bound to occur.57 However, according to a representative from Mass MoCA, the museum had negotiated a commission agreement, but Büchel had refused to sign it.58 The mistake, then, was to begin work on the commission before the agreement had been formalized. The failure to have a “meeting of the minds” should have signaled a problem with the artist-museum relationship.
In addition to individually negotiated contracts, museums should adopt clearly articulated policies setting out the rights, obligations and expectations of the museum in commissioning new works. Museum commissioning policies should be drafted to reflect the growing appreciation for the protection of the “moral rights” of artists, regardless of whether these rights are recognized under American law. 59 A clear commissioning policy will streamline the contracting process, allow the parties to enter into the commissioning relationship with a clear understanding of their respective responsibilities, and serve as a foundation for arbitrating disputes. While it is important to have such policies in place, they are not a panacea. Mass MoCA did have an extensive commissioning policy in place but it did not avert the dispute.
At its most basic, the dispute between Mass MoCA and Büchel appears to have been the result of a clash of personalities. Perhaps the true moral of the mess at Mass MoCA is that ultimately the relationship between artist and commissioning museum must be based on trust and mutual respect by both parties. Museums must appreciate and respect the sensitivities of the artist and their relationship to their work. Artists must understand and respect the needs of the museum and in particular its obligations to its funders. In the end, the importance of fair dealing by both parties is crucial.
The mess at Mass MoCA did not end with the Judge’s ruling and the dismantling of the exhibit. Far from it. Büchel has used the dispute as the basis for a new “metaproject” using thousands of pages of correspondence and museum documents made public during the discovery phase of the lawsuit. Several of these works were displayed in December 2007 at Art Basel Miami Beach. Described by Büchel as a statement about freedom of speech and expression, the works generated a second lawsuit with Mass MoCA regarding copyright ownership in the materials provided by the museum. 60 In light of this, Virginia Rutledge of Creative Commons suggested that the major lesson of Mass MoCA vs. Büchel is really not about VARA at all. As Rutledge puts it:
The truly challenging questions here are the ones about values: What power should artists have to control the presentation and disposition of their work, and what obligations are appropriate to impose? What are the responsibilities of art institutions to protect individual artistic vision while also maintaining their own cultural authority? And most importantly, who decides? Judge Posnor made his opinion on this point very clear when he observed: “This controversy doesn’t belong here. This is a passionate disagreement about aesthetic ideology and the rights of an artist and the process of creation that is extremely ill-suited to the courtroom.” In other words, the judge advises, work your issues out — at home 61
But then, what interesting topics would lawyers have to talk about?