This article was originally published in the 2.11.10 issue of Metroland
Remember a year or two ago when MassMoca got into a huge brouhaha with Swiss installation artist Christoph Buchel? Sure you do. Buchel was putting a massive art thing in MassMoca’s football-field-sized Building 5 gallery, a post-apocalyptic fake town that was supposed to include a house, a theater, a prison, a burnt-out 747 fuselage, concrete walls, and 150 tons of stuff. When the $300,000-or-so budget ran out (surprise!), Buchel refused to scale down the project, and allegations started to fly, and all hell broke loose.
The art world went generally berserk, with commentators outside of Berkshire County uniformly slamming MassMoca as somehow being profoundly insensitive to the rights of artists, and commentators within Berkshire County (myself included) coming down on the side of the home team, arguing essentially that MassMoca had been blindsided by a grandstanding petulant dickhead.
The whole thing wound up in federal court in Springfield, where after an accelerated mini-case the judge sided with MassMoca, stating that an unfinished work (which this unquestionably was) didn’t qualify for the moral-rights artist-integrity provisions of the Visual Artists Rights Act (known to art-law geeks as VARA), and that MassMoca didn’t violate Buchel’s copyrights by throwing a tarp over the whole she-bang and letting a few people walk through the building to gaze at the hulking mountains of tarp-covered junk.
It was all a satisfying result for those of us MassMoca fans up here in the cheap seats, but was it a correct interpretation of the law? Even the judge in Springfield stated in his lengthy, thoughtful decision that he wasn’t sure. He knew he was walking through a whole lot of uncharted legal territory with a set of facts that were as surreal as Buchel’s artistic vision.
So it wasn’t exactly a surprise when the federal appeals court in Boston reversed the decision, ruling that unfinished works indeed could be subject to the protections of VARA, and that MassMoca might well have infringed Buchel’s copyrights by allowing a few people to view the installation covered with tarps. It’s important to note that the appeals court did not say Buchel won; it only said that he hasn’t lost. So the case returns to Springfield, and, if the parties don’t settle this thing, it will go to trial.
And what a bizarre trial this would be. My understanding of the law here is that even if Buchel proves that MassMoca technically violated his rights under both VARA and the Copyright Act, he’s going to need to prove damages; under VARA, the damages would have to be somehow connected to harm to his reputation and integrity as an artist, and under the Copyright Act, the actual pecuniary loss he suffered as a result of a few people looking at some tarp-covered junk.
Damage to his reputation and integrity? Outside of Berkshire County, where Buchel is uniformly regarded as a jerk, a very good argument could be made that this whole mess has enhanced his reputation, and to an extraordinary degree. As my pal arts-writer John Seven in North Adams points out, Buchel’s sure been busy with high-profile installations in Europe and Asia lately. And in the twisted, often nihilistic and cynical eye of avant-garde art high society, the MassMoca affair has elevated Buchel to the status of A-list cause-celebre bad artsy-boy. Indeed, when the whole controversy was unraveling two years ago, there was speculation that it was all being staged by Buchel and MassMoca as a performance art piece to garner headlines and publicity.
And actual damages suffered by Buchel as a result of MassMoca covering the thing with tarps, and telling people what had happened, and letting them look? Umm, let me get my calculator. OK. Zero!
But maybe that’s the right result, a finding of liability but no damages. As they say in the legal biz, “hard cases make bad law”, meaning, where you’ve got a particularly strange set of facts, and try to bend the law to come up with what you believe is a just result, you often create a precedent that that will have very bad negative consequences for somebody else down the road. And this case is a perfect setting for that to happen.
Let’s face it, MassMoca is not blameless in this. This was in an extremely difficult situation but it was partially of MassMoca’s own making, and some decisions were made that in hindsight were rather stupid. To absolve MassMoca of all legal blame by a cribbed reading of the law would potentially create a legal framework by which institutions could screw artists in all kinds of situations where the equities were reversed, and the institution wasn’t a victim.
So stay tuned. Chapter three in the Christoph Buchel - MassMoca saga coming up.