Christoph Büchel v Mass MoCA

In September 2007 a US court gave judgement in an unprecedented case that focused on the meaning of authorship. It concerned an installation, Training Ground For Democracy, commissioned by the Massachusetts Museum of Contemporary Art (Mass MoCA) from Swiss artist Christoph Büchel.

This case raised issues rarely litigated in the common law jurisdictions of the Anglosphere: the artist’s moral rights to claim or deny true authorship. A Massachusetts federal court denied Büchel’s application for an injunction aimed at preventing Mass MoCA’s public showing of his uncompleted installation because, he had argued, his statutory moral rights would thereby be breached.

The installation was a collaboration between the artist and the museum, whereby its vast main exhibition space, Building 5, which is the size of several city blocks, was to become a village – reminiscent of the US Army’s mock villages used to train soldiers for combat – assembled from found objects and ephemera that the judge, who visited the installation, described as ‘an old movie theatre, a Saddam area with a replica of a spider hole, a propaganda van, a jail, a sniper atop a gas station, a looted convenience store, a police car, and a hippie van, all creating an atmosphere of torture and despair and an overwhelming sense of portentousness’. Under Büchel’s directions the museum had ‘gathered and assembled many of the disputed components for Büchel at its own expense, and the artist and museum had worked together in an organic collaboration on the installation’.

Following disputes between the artist and museum about funding (the initial budget of $160,000 had been progressively increased to over $300,000) and the range of the assembled material, Büchel abandoned the project in December 2006. The museum asked Büchel to remove the materials and reimburse the museum its expenditure on the project, to which request he did not accede. According to the museum’s director, ‘With several hundred tons of materials and thousands of objects and partial constructions sitting abandoned in our galleries, we carefully considered what we could do. We obviously cared a great deal for the work and had expended extraordinary effort and energies to try to bring it into existence; we did not want to act precipitously in either dismantling or displaying it. With no other options, and wanting to move forward as the situation continued to draw resources away from other artists and public programming, we sought a declaration of our respective rights by an impartial party – a federal judge.’ In particular, the museum asked the court to rule that they would be able to expose to the public the work done to date – in the curatorial context of exploring the nature of collaborations with artists. Büchel countersued to prevent this happening. Public viewing of the work was not allowed until the litigation had been decided which meant that the museum’s main exhibition space was out of commission for most of the past year.

Under the international Berne Convention for the Protection of Literary and Artistic Works, most countries in the developed world have agreed to enact into their national laws statutory moral rights: to claim or deny authorship, and to prevent their work being distorted – whenever their works are exhibited in public. Unlike copyright, which is an author’s economic right, the overarching aim of statutory moral rights is to enable authors of original works to protect their ‘honour, integrity and reputation’- in effect a special law of ‘artistic’ defamation. Such rights usually last for the same length as copyright – the artist’s lifetime plus 70 years after death, in most countries, with notable exceptions being the US where moral rights last only during the artist’s lifetime, and France where they last indefinitely.

It is not clear whether the commission contract between Büchel and Mass MoCA specified whether US or Swiss law would govern any intellectual property disputes between them, but the federal judge appears to have used US law to decide the matter (the US enacted moral rights into federal law in 1989). The judge ruled that ‘a display of the unfinished work was not a distortion’ but that ‘the museum would have to inform viewers by a disclaimer that the work is an unfinished project that does not carry out the artist’s original intent’. In arriving at this decision the judge rejected strong arguments by Büchel’s lawyers that ‘if an artist says a work is not finished, and not in a state to be publicly displayed, then to show it to the public, against the artist’s wishes, is a distortion’, preferring to rely on his own view that something could not be distorted that was not yet created, and that US moral rights legislation was not intended to cover disputes between artists and their assistants (presumably meaning that the museum’s staff acted as the artist’s assistants).

This judgement does not represent a precedent that must be followed by other US courts, but is likely to be cited as a persuasive authority by lawyers arguing similar cases that might arise anywhere in the US in future – with artists’ lawyers seeking to argue against the reapplication of this judgement on the grounds that it was based upon its own particular facts. Perhaps the most valuable aspect of the judgement is that all the lawyers involved in this case appear to have accepted that statutory moral rights lay at the heart of the matter; they might have argued, for example, that it was a contractual, not moral rights, dispute over the artist’s failure to complete his commission.

It is also important to consider whether European courts, including those in the UK, would have applied the same judicial rationale as the Massachusetts federal judge. Statutory moral rights have been operating in many EU states since the first half of the 20th century, and there is a long line of authoritative court decisions indicating European judges’ willingness strongly to support artists and their works whenever artistic integrity is an issue. In some EU states, notably France, statutory moral rights have been extended beyond the minimum requirements of the Berne Convention, to include the right of publication (the droit de divulgation), whereby the author of a work is given the absolute legal right to be the sole judge of when the work may be first made available to the public: the heart of the matter, in Büchel’s case.

Having succeeded in its legal action, the museum recently chose not to show the uncompleted work accompanied by an appropriate explanatory public notice, preferring to de-install it. According to its recent press release, ‘We are deeply appreciative of the Court’s thoughtful scrutiny of this matter. After giving careful deliberation to the interests of many constituents, including the artist’s own views, and factoring in the limited time window available given our normal exhibition cycle – together with other considerations both logistical and philosophical – we have decided to begin removing the materials immediately without placing them on public display. We are eager to return to our core mission to serve as a experimental platform for art-making, and we look forward to commencing work immediately on the previously announced installation by Jenny Holzer, Projections, which will open November 17, 2007.’

Büchel is currently considering taking the case to a higher, federal appeal court. One of the grounds for appeal will perhaps be that the case should have been dealt with not under US federal intellectual property law, but under Swiss law. Unlike US (or UK) law, Swiss statutory moral rights include the droit de divulgation (the absolute right to decide on publication) which could prove more persuasive on appeal.

© Henry Lydiate 2007

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.