19 March 2019 - Article
On 21 September 2007, an unprecedented trial took place at the Massachusetts Federal District Court between the Massachusetts Museum of Contemporary Art (“Mass MoCA”) and the Swiss contemporary artist, Christoph Büchel. Pitting artist against art institution, this widely publicized trial has important ramifications for the contemporary art world.
The issue in the hearing was whether Mass MoCA was legally entitled to present Büchel's unfinished installation, “Training Ground for Democracy”, which it had commissioned from Büchel inside its own museum space. Büchel's lawyers claimed that if Mass MoCA were permitted to do so, it would infringe Büchel's moral rights as set forth in the Visual Artists Rights Act 1990 (incorporated into the US Copyright Act of 1976) and that Mass MoCA should therefore be prevented from doing so.
“Training Ground for Democracy” was a mammoth production modeled on the mock-up villages used by the US army in simulated warfare and incorporating elements such as a two-storey house sliced in half and smashed cars. The artist's intention was to convey the experience of living under warfare and to promote the message of democracy. Büchel began his vast, complex installation at Mass MoCA in the autumn of 2006. However, following an acrimonious dispute with Mass MoCA over spiraling budget costs (production costs more than doubled beyond their initial estimate to over $300,000) and Mass MoCA's inability to realize the installation as he intended, Büchel abandoned it in late 2006.
In May 2007, against Büchel's clear wishes, Mass MoCA announced that it was to include Büchel's unfinished installation in an exhibition “Made at Mass MoCA” focusing on the history of collaborations between artists and curators at this renowned institution – Mass MoCA has worked with many leading international contemporary artists, including Anselm Kiefer and Cai Guo-Qiang. Soon afterwards, Mass MoCA took the highly unusual step of applying to the court for a declaration that Büchel would not be able to prevent it from displaying his disclaimed exhibit (then placed under tarpulin wrapping in Mass MoCA). Outraged, Büchel counter-claimed, applying to the court to prevent the exhibit from being shown at Mass MoCA. Remarkably, no written contract existed between Büchel and Mass MoCA which might have prevented this dispute from escalating to trial.
The issues in the trial concerned whether in displaying Büchel's unfinished and disclaimed exhibit, Mass MoCA would:
- infringe the artist's right to prevent the work from being shown in a distorted or modified form prejudicial to his honour and reputation (known as the integrity right);
- infringe the artist's right to prevent a work (not made or authorized by the artist) from being falsely attributed to him (the right of attribution).
Büchel's lawyers argued that showing Büchel's unfinished and disclaimed installation was synonymous with displaying a distorted and modified version of an existing artwork by the artist hence infringing his integrity right. They also argued that because of the publicity attached to the dispute and trial, the public would inevitably, falsely associate Büchel and the installation. Against this, Mass MoCA's lawyers argued that Mass MoCA would avoid liability by presenting the unfinished exhibit in its abandoned form with a prominent public disclaimer that it was not by Büchel.
Perhaps surprisingly, Judge Ponsor ruled in Mass MoCA's favour. He decided that Mass MoCA would be entitled to present the exhibit untouched with a sufficiently prominent public disclaimer. Judge Ponsor was not unsympathetic to Büchel's installation and confessed to having been extremely moved by it. He concluded however, that the artwork had not been solely created by Büchel, nor had it been modified or distorted by Mass MoCA to amount to an infringement of his integrity right: “it is not a distortion to exhibit something by saying exactly what it is.” In the judge's opinion a suitable public disclaimer by Mass MoCA in the exhibition would be sufficient to avoid false attribution. Judge Ponsor's decision was clearly influenced by his finding that Mass MoCA had played an important collaborative role in assembling the materials and in helping to set up Büchel's installation and that practically speaking it owned Büchel's exhibit.
Mass MoCA's victory however, proved to be a pyrrhic one. Shortly after the trial, Mass MoCA's trustees, probably afraid of further litigation, announced that Büchel's installation would be dismantled. Aside from the waste of public funds involved, the trial must be viewed as creating an unfortunate precedent, not least for striking a blow to artists' moral rights in the United States. Furthermore, in the view of many prominent curators, artists and dealers in the contemporary art world, Mass MoCA scored a spectacular own-goal (however, aggrieved its staff may have been by Büchel's conduct). The reason for this is clear: it is a norm of the art world that it is up to artists to decide (however, collaborative an artistic project maybe) when an art work is complete and when it is to be released to the public. If there is a lesson to be learned from this trial it is perhaps this: artists and art institutions must in enter into clear written contracts to stop such disputes arising in the future.