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Legal protection for creative professionals, cultural institutions, and non-profits

Exhibiting unfinished commissioned work

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.

Relationship between artist and museum

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.

How moral rights apply

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.

Artist's rights under the Visual Artists Rights Act

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 mess at Mass MoCA

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

The moral of the story

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.

Postscript

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?


  1. Massachusetts Museum of Contemporary Art Foundation, Inc. v. Christoph Büchel, No. 3:07-cv-30089-MAP (D. Mass. filed July 12, 2007).
  2. Randy Kennedy, Museum Can Show Disputed Artwork, Judge Rules, N.Y. Times, Sept. 22, 2007.
  3. Id.
  4. Martha Lufkin, Mass MoCA dismantles artist’s unfinished installation, The Art News pAp e r, Sept. 27, 2007.
  5. William M. Landes, What has the Visual Artists Rights Act of 1990 Accomplished? The Law school of The University of chicago, John m. olin Law & economics working paper No. 123 (2d Series).
  6. Ray Ming Chang, Revisiting the Visual Artists Rights Act of 1990: A Follow-up Survey About Awareness and Waiver, Texas intellecual property Law Journal, Vol. 13:129 (2005). Chang notes that the vast majority of artists still do not use written commissioning agreements.
  7. “Only a few VARA cases have been fully litigated. Nonetheless there is strong anecdotal evidence that the existence of VARA has had significant effects in negotiating rights between an artist and patron and in settling disputes outside of court.” Jeffrey P. Cunard, Moral Rights for Artists: the Visual Artists Rights Act (CAA 2002) (retrieved from www.darkwing.uoregon.edu/~csundt/ copyweb/CunardCAA2002.htm).
  8. The United States Constitution authorizes Congress to enact legislation “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” U.s. coNsT. art. I, § 8, cl. 8.
  9. The fair use doctrine. 17 U.S.C. § 107.
  10. Marie C. Malaro, A Legal Primer On Managing Museum Collections (2nd ed. 1995) at 151.
  11. For example, as a “work-for-hire” pursuant to 17 U.S.C. § 201(b), or through assignment or license under 17 U.S.C. § 203.
  12. 17 U.S.C. § 202.
  13. 17 U.S.C. § 109(b). For a discussion of the right of display, see Malaro at 168, fn 284.
  14. Moral rights originated with the French legal concept of “le droit moral.” Economic rights are protected through the legal concept of “droit de suite” which allows artists to profit from the resale of their work. For a discussion of moral rights, see Malaro at 184.
  15. Moral rights are based on “a belief that an artist in the process of creation injects his spirit into the work and that the artist’s personality as well as the integrity of the work, should therefore be protected and preserved.” Carter v. Helmsley-Spear, Inc., 71 F.3d 77, 81 (2 nd Cir. 1996).
  16. Chang, supra at 133.
  17. Id. at 133, fn 18 citing Am. JUr. proof of facts, 3D, Proof of Infringement of the Visual Artists Rights Act of 1990, § 2 (2003) (this concept is sometimes referred to as the “right of exposure”).
  18. Caslon Analytics note moral rights cases (retrieved from www.caslon.com/au/mrcasenote1.htm).
  19. Stephen E. Weil, Copyrights and Wrongs, museum News, July-Aug. 1993, at 40.
  20. In 1958, an Alexander Calder black and white mobile which was donated to the Pittsburgh Airport was repainted green and gold, locked into place, and motorized contrary to the artist’s intentions. David M. Spatt, Moral Rights Survive the Sale and the Southern District (retrieved from www.artslaw.org/MORAL.HTM).
  21. Id. In 1980 the Bank of Tokyo commissioned and then removed an Isamu Noguchi sculpture from its Manhattan lobby. In 1981, the General Services Administration removed Richard Serra’s “Tilted Arch” from the Federal Plaza in New York City.
  22. In 1966 Maryland commissioned William Smith to create nine murals highlighting the state’s history, installed but altered the central panel and then refused to remove his name from the piece. Cynthia Esworthy, A Guide to the Visual Artists Rights Act (retrieved from www.harvard.edu/faculty/martin/art_law/esworthy.ht...). For other pre-VARA cases, see generally U.S. Copyright Office, Wiaver of Moral Rights In Visual Artworks, Executive Summary (October 24, 1996) (retrieved from www.copyright.gov/reports/exsum.html).
  23. Id.
  24. The states were California, Connecticut, Louisiana, Maine, Massachusetts, Pennsylvania, New Jersey, New Mexico, New York, and Rhode Island. See Chang, supra at 137.
  25. Id. at 131.
  26. The Visual Artists Rights Act (VARA), Pub. L. 101-650, 104 Stat. 5132, Dec. 1, 1990, codified in part at 17 U.S.C. §§ 106A et. seq.
  27. 17 U.S.C. § 101: definition of “work of visual art.”
  28. Id. In Pollara v. Seymour the court held that a banner commissioned by a legal group was an advertisement because the content was determined by the group, the banner promoted a lobbying message, and was displayed next to the group’s information table. Pollara v. Seymour, 344 F.3d 265 (2d Cir. 2003).
  29. The Copyright Act defines “work for hire” as “a work prepared by any employee within the scope of his or her employment.” or as a commissioned work provided that a written “work for hire” agreement has been signed by the artist. 17 U.S.C. § 101(1). In Carter v. Helmsley-Spear, Inc. the Court of Appeals overturned the trial court ruling, holding that the work in question was actually a work for hire which was not covered by VARA because, among other things, the artists were paid a weekly salary and received employment benefits. 71 F.3d 77 (2 nd Cir. 1996). For a detailed discussion of this case, see Landes, supra at 12.
  30. Chang, supra at 135 citing h.r. re p. No. 101-514, at 11 (1990). Whether works of mixed media or recorded performance art constitute works of visual art has been left up to the courts under the Act, which potentially puts the courts in a problematic position of having to make aesthetic judgments.
  31. Id. citing Flack v. Friends of Queen Catherine Inc., 139 F. Supp. 2d 526, 534 (S.D.N.Y. 2001).
  32. 17 U.S.C. § 106A(a)(1).
  33. 17 U.S.C. § 106A(a)(2).
  34. 17 U.S.C. § 106A(a)(3)(A). For a discussion of the meaning of the terms “honor” and “reputation” which are derived from European concepts of moral rights, see Landes, supra at 5.
  35. 17 U.S.C. § 106A(a)(3)(B). “Recognized stature” refers to society’s interest in protecting important works of art. See Landes at 5. In Martin v. City of Indianapolis., the city demolished a sculpture without giving prior notice to the artist. The court allowed the use of newspaper articles and letters about the sculpture to conclude that the work was one of “recognized stature”. 4 F. Supp. 808 (S.D. Ind. 1998) affirmed 192 F. 3d 608 (7 th Cir. 1999).
  36. 17 U.S.C. § 106A(a)(3) applies only to intentional or grossly negligent actions.
  37. 17 U.S.C. § 106A(c)(1).
  38. 17 U.S.C § 106A(c)(2). For a discussion of negligence, see Landes, supra at 3. See also Martin, 4 F. Supp. 808 (S.D. Ind. 1998). In Pavia v. 1120 Avenue of the Americas, the court denied a claim under VARA because the alleged alteration had occurred prior to the effective date of the Act. The court denied a claim under VARA based on the on-going display of the altered work, saying that VARA does not cover display rights. However, the court allowed a claim based on New York’s Artists Rights Act which does cover display rights and is not preempted by VARA. 901 F.Supp. 620 (SDNY 1995). In Pfaff v. Denver Art Museum, an artist claimed that the Denver Art Museum damaged her work when it improperly dismantled it after an exhibit. 94 Civ. 9271. See Malaro at 187, fn 351.
  39. 17 U.S.C. § 106A(c)(3). For example, an artist cannot base a VARA claim on damage to reputation as the result of a dimly lit gallery, or a poor quality photo of the work in a pamphlet or website. See Landes at 3. In Peker v. Masters Collection, an artist who objected to the way that his work was being reproduced by a licensee brought claims under both VARA and the Copyright Act. The court dismissed the VARA on the grounds that the modification was to the reproductions and not to the artist’s original work. The court did find for the artist based on the copyright claim of unauthorized reproduction. 96 F. Supp.2d 216 (E.D.N.Y. 2000). In Berrios Nogueras v. Home Depot the court denied a claim under VARA for reproduction of an artist’s work in brochures and advertisements, stating that the rights of attribution and integrity do not apply to reproductions of an otherwise protected work when used in connection with works specifically excluded from the definition of “works of visual art.” 330 F. Supp. 2d 48 (D.P.R. 2004).
  40. 17 U.S.C. § 106A(d).
  41. Id.
  42. 17 U.S.C. § 106A(e). For sample VARA waiver forms, see Malaro at 196-7.
  43. 17 U.S.C. § 501(a) includes VARA violations among the actions that infringe a copyright. The Copyright Act allows for enhanced damages for willful or intentional violations. In Martin v. City of Indianapolis, the court held that although the destruction of the artist’s sculpture had been intentional, the defendant’s actions were careless rather than willful. 4 F. Supp. 808 (S.D. Ind. 1998).
  44. 17 U.S.C. § 301(f). See Chang, supra at 137. In Pavia v. 1120 Avenue of the America’s, the court addressed the question of preemption with respect to a provision of the New York Artist’s Rights Act. 901 F. Supp. 620 (SDNY 1995).
  45. If the work cannot be removed from a building without damage, the building owner must obtain a written waiver from the artist. If the work can be removed without damage, the building owner must notify the artist and provide an opportunity for the artist to remove the work at her own expense. No waiver is required for works installed prior to June 1, 1991 with the artist’s consent. 17 U.S.C. § 113(d)(1) and (2). The Act also required the Copyright Office to establish a Visual Arts Registry that allows for the submission of statements regarding works installed in buildings. 17 U.S.C. § 113(d)(3). See 37 CFR 201 for procedures. As of October 31, 2007, only three such statements have been recorded.
  46. See “About” at www.massmoca.org. Mass MoCA’s mission statement: “MASS MoCA seeks to catalyze and support the creation of new art, expose our visitors to bold visual and performing art in all stages of production, and re-invigorate the life of a region in socioeconomic need.”
  47. Solenne Schmit, “Lots of money spent but no show” circA ArT mAgAz iNe, Oct. 31, 2007 (retrieved from www.recirca.com/ artnes/573.shtml). The work involved rebuilding a local movie theater within the museum, and filling the museum’s largest exhibit hall — football stadium-sized Building 5 — with massive found objects including an oil tanker, a smashed police car, a used mobile home, deactivated bomb shells, nine shipping containers, and a two-story house. The fuselage of 727 was also part of the planned installation. Geoff Edgers, “Behind doors, a world unseen – Dispute cloaks massive installation at MASS MoCA” N.Y. Ti m e s, Mar. 28, 2007.
  48. For a detailed description of the dispute, see Schmit, supra. Museum staff actively participated in locating and purchasing the materials and constructing the elements of the work.
  49. Framing the issue as whether the Museum had the right to exhibit the work (rather than whether the Museum had the right to destroy the work) allowed Mass MoCA to avoid what could otherwise have been considered a direct violation of VARA.
  50. Büchel Memorandum of Law at 11.
  51. Büchel Memorandum of Law at 18. Büchel also argued that mishandling of the installation by the Museum’s staff would expose them to liability under VARA and made arguments based on other provisions of the Copyright, including the right to display an original work under Section 109 of the Act.
  52. For a discussion of “droit de divulgence” see text at page 3.
  53. Martha Lufkin, Mass MoCA dismantles artist’s unfinished installation, The Art Newspaper, Sept. 27, 2007. See also Randy Kennedy, Museum can show disputed artwork, Judge rules, N.Y. Ti m e s, Sept. 22, 2007. As of this writing, no written opinion has been reported so this analysis is based on news reports of the oral argument and the Judge’s ruling from the bench.
  54. 17 U.S.C. 106A(c)(2). This exception is qualified in the case of “gross negligence.” The Act is silent on whether an intentional act of display would be actionable. However, a common-sense reading of this provision would suggest that it is meant only be applied to negligent, not intentional, acts.
  55. Geoff Edgers, “ Mass MoCA to dismantle unseen exhibit – Huge display still unfinished” The Boston Globe, Sept. 26, 2007. According to the Director, “what we have left is a huge recycling effort.”
  56. As some critics have pointed out, high-profile artists like Büchel must also respect the views of museums and the public which fund their work. Schmit, supra. Some commentators have suggested that the entire dispute could have been avoided if a written agreement had been in place. See Sergio, Understanding MASS MoCA’s Actions, cL A Nc o July 28, 2007 (retrieved from www.clanco.com/ summary_judgment/understanding_mass_mocas_action_irrefle).The dispute clearly arose from a misunderstanding about the cost and scope of the project. See Christopher Benfey, “Mess MoCA” Slate, Sept. 25, 2007 (retrieved from www.slate.com/toolbar. aspx?action+print&id=2174656).
  57. For a discussion about the importance of contracts for museum installations, and a sample contract, see mA L Ar o at 277-80.
  58. Telephone interview with Kate Myers, Public Relations Mass MoCA, December 2007.
  59. While VARA expressly allows artists to waive their VARA rights, museums should be cautious about taking this approach. Under European laws, artists cannot waive their moral rights.
  60. Randy Kennedy, “Accusations, Depositions: Just More Fodder for Art”, New York Times, March 2, 2008 (retrieved from http:// www.nytimes.com/2008/03/02/arts/design/02kenn.html?pagewanted=3&_r=3&ref=arts )
  61. “Creative Commons’ Virginia Rutledge on Buchel/Mass MoCA” News Grist, March 4, 2008 (retrived from http://newsgrist. typepad.com/underbelly/2008/03/creative-common.html )