Massachusetts Museum, Contemp. Art Foun. v. Buchel

• Decision Date: 27 January 2010
• Docket Number: No. 08-2199.,08-2199.
• Parties: MASSACHUSETTS MUSEUM OF CONTEMPORARY ART FOUNDATION, INC., Plaintiff, Appellee, v. Christoph BÜCHEL, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

593 F.3d 38

MASSACHUSETTS MUSEUM OF CONTEMPORARY ART FOUNDATION, INC., Plaintiff, Appellee, v. Christoph BÜCHEL, Defendant, Appellant.

No. 08-2199.

United States Court of Appeals, First Circuit.

Heard June 2, 2009.

Decided January 27, 2010.

George T. Conway III, with whom Elaine P. Golin, Wachtell, Lipton, Rosen & Katz, John C. Blessington, Sara E. Yevics, K & L Gates LLP, Elena M. Paul, Sergio Muñoz Sarmiento, and Volunteer Lawyers for the Arts were on brief, for appellant.

John L. Gardiner, with whom Elizabeth A. Hellmann, Kurt Wm. Hmr, Lindsay R. Dickerson, and Skadden, Arps, Slate, Meagher & Flom LLP were on brief, for appellee.

Before LIPEZ and HOWARD, Circuit Judges, and WOODCOCK, District Judge.^*

LIPEZ, Circuit Judge.

As one observer has noted, this case, which raises important and unsettled legal issues under the Visual Artists Rights Act ("VARA"), may well serve as "the ultimate how-not-to guide in the complicated world of installation art." Geoff Edgers, Dismantled, The Boston Globe, Oct. 21, 2007, at 1N. Artist Christoph Büchel conceived of an ambitious, football-field-sized art installation entitled "Training Ground for Democracy," which was to be exhibited at the Massachusetts Museum of Contemporary Art ("MASS MoCA," or "the Museum"). Unfortunately, the parties never memorialized the terms of their relationship or their understanding of the intellectual property issues involved in the installation in a written agreement. Even more unfortunately, the project was never completed. Numerous conflicts and a steadily deteriorating relationship between the artist and the Museum prevented the completion of "Training Ground for Democracy" in its final form.

In the wake of this failed endeavor, the Museum went to federal court seeking a declaration that it was "entitled to present to the public the materials and partial constructions" it had collected for "Training Ground for Democracy." Büchel responded with several counterclaims under VARA and the Copyright Act,¹ seeking an injunction that would prevent MASS MoCA from displaying the unfinished installation and damages for the Museum's alleged violations of his rights under both VARA and the general Copyright Act.

On cross-motions for summary judgment, the district court assumed that VARA applies to unfinished works of art, but it nonetheless ruled for the Museum in all respects because, even granting VARA's applicability, it found no genuine issues of material fact. Massachusetts Museum of Contemporary Art Found., Inc. v. Büchel, 565 F.Supp.2d 245 (D.Mass. 2008). Büchel appeals. Because we find that, if VARA applies, genuine issues of material fact would foreclose summary judgment on one of Büchel's VARA claims—that MASS MoCA violated his right of artistic integrity by modifying the installation—we cannot assume that VARA applies to unfinished works but instead must decide its applicability. We conclude that the statute does apply to such works.

We further conclude that, in addition to his VARA claim, Büchel asserts a viable claim under the Copyright Act that MASS MoCA violated his exclusive right to display his work publicly. Accordingly, we reverse in part the grant of summary judgment for MASS MoCA and remand for further proceedings.

I.

A. The Parties

MASS MoCA opened in 1999 as a center for the creation and display of contemporary art. The Museum "seeks to catalyze and support the creation of new art, expose [its] visitors to bold visual and performing art in all stages of production, and re-invigorate the life of a region in socioeconomic need." Massachusetts Museum of Contemporary Art, Mission Statement, http://www.massmoca.org/mission.php (last visited Jan. 13, 2010). In its expansive facility in North Adams, Massachusetts, the Museum strives to "make the whole cloth of art making, presentation and public participation a seamless continuum." Id. Over the last decade, the Museum has hosted the production and presentation of over sixty exhibits of visual art, including over 600 works of art by more than 250 individual artists. Some of these works have been displayed in Building 5, the Museum's signature exhibition space, which spans the length of a football field. The Museum strives to "offer visual artists the tools and time to create works of a scale and duration impossible to realize in the time and space-cramped conditions of most museums," and MASS MoCA prides itself on exposing its audiences to "all stages of art production: rehearsals, sculptural fabrication, and developmental workshops are frequently on view, as are finished works of art." Id.

Christoph Büchel is a Swiss visual artist who lives and works in Basel, Switzerland. He is "known for building elaborate, politically provocative environments for viewers to wander, and sometimes to crawl, through." Randy Kennedy, The Show Will Go On, but the Art Will Be Shielded, N.Y. Times, May 22, 2007, at E1 ("The Show Will Go On"). One critic has stated that "Mr. Büchel's environments are huge in scale," "like bristling three-dimensional history paintings," yet are "so obsessively detailed that they might best be described as panoramic collage." Roberta Smith, Is It Art Yet? And Who Decides?, N.Y. Times, Sept. 16, 2007, at 21.

B. Factual Background

Focusing first on those facts that are undisputed, we sketch the course of dealings between Büchel and MASS MoCA to put this appeal in context.² MASS MoCA became interested in planning a new installation with Büchel. The artist visited the North Adams facility in October 2005 to begin preliminary discussions regarding the project, and those discussions continued into 2006. At some point during this time, Büchel proposed, and the Museum agreed to, a project entitled "Training Ground for Democracy." As Museum Director Joseph Thompson indicated in a letter to Büchel's gallery representatives, MASS MoCA understood that "Büchel's projects typically require a lengthy period of installation and preparation," and that, given the gallery space of Building 5, "this project [would] be his largest venture to date."

Büchel conceived of the exhibit as "essentially a village, ... contain[ing] several major architectural and structural elements integrated into a whole, through which a visitor could walk (and climb)." According to an affidavit submitted to the district court, Büchel envisioned the work in the following way:

It was to adopt the role-play of U.S. military training for its visitors, who would be given the opportunity to "virtually" change their own various identities in relation to the collective project called "democracy": training to be an immigrant, training to vote, protest, and revolt, training to loot, training iconoclasm, training to join a political rally, training to be the objects of propaganda, training to be interrogated and detained and to be tried or to judge, training to reconstruct a disaster, training to be in conditions of suspended law, and training various other social and political behavior.

In August 2006, Büchel spent ten days in residence at MASS MoCA. During this time, he and a partner prepared a basic schematic model of the proposed installation. MASS MoCA agreed to acquire, at Büchel's direction but its own expense, the materials and items necessary for the project.

Unfortunately, the parties never formalized the contours of their relationship or firmly established the project's financial scope and precise specifications by executing any written instrument. Although MASS MoCA's curator, Nato Thompson (no relation to the Museum Director),³ sent Büchel's gallery sales representative in the United States a letter on September 14, 2006 that was designed to "formalize [the parties'] relationship on this project," there is no indication that Büchel himself ever saw, much less signed, this proposal.⁴ The gallery responded with a proposed contract of its own, providing that MASS MoCA should bear the costs of transporting and organizing the various materials for the installation. The Museum did not respond to this proposal. Additionally, it is undisputed that Büchel never signed a document waiving any rights to which he would otherwise be entitled under VARA. The parties did apparently agree, however, that once the planned installation was finished and after the public exhibition period had concluded, MASS MoCA would not contest Büchel's sole title to any copyright in the completed work. The parties set an opening date of December 16, 2006 for the exhibit.

Over the course of the fall, tensions began to develop between the artist and MASS MoCA employees, particularly Joseph Thompson. "In summary, the museum felt the artist's directions were vague, and his financial and logistical demands were increasingly unreasonable; the artist felt the museum was compromising his artistic integrity and failing to follow his instructions." MASS MoCA, 565 F.Supp.2d at 247. One frequent source of conflict between the parties was the budget, with the Museum understandably concerned about keeping its costs for the massive project under control, and Büchel understandably insistent that his vision for "Training Ground" be fully realized. But as the district court correctly noted, "[t]he dispute about these financial understandings is not material" to whether Büchel has presented triable claims under either VARA or the Copyright Act, id. at 250, and we therefore need not focus on its messy details.

Instead, for our purposes, the key conflict between MASS MoCA and the artist involved Büchel's dissatisfaction with the way in which the Museum was implementing his instructions and procuring the items necessary for the installation. Büchel himself was not present in North Adams for the first several months of work on the project. Instead, he conducted much of his work on the installation throughout the fall of 2006 remotely, by providing Museum personnel with detailed instructions as to the particular materials he required and their...