Know What you Want Before you Lawyer Up


I’m just catching up with this story, but I think its a fascinating dispute. The Massachusetts Museum of Contemporary Art (MASS MoCA) has won its suit against artist Christoph Buchel, and is free to display a massive unfinished work “Training Ground for Democracy”. Federal District court judge Ponser ruled Friday the Visual Artists Rights Act (VARA) does not prevent the display of the unfinished work. The Boston Globe has a good overview of the case.

VARA gives artists the right, in some circumstances, to prevent unauthorized distortion or mutilation of the work. The judge ruled the work hasn’t been distorted, because it’s not finished. It seems there was some kind of falling out between Mass MoCA and Buchel. The museum then brought suit to gain the right to display the unfinished work.

What strikes me about this case, is the tendency to see litigation as a cure-all. You can win a lawsuit and still come out a loser. A good lawyer encourages a client to think about what the end result will be, even if they earn a court victory. I don’t know what the museum sought to gain by initiating a suit against Buchel, but they have certainly damaged their reputation among artists. What are they gaining by displaying a work the artist himself wants nothing to do with?

There is a lot of great commentary which tries to answer that question.

  • Donn Zaretsky, Buchel’s counsel, has been posting his thoughts at the excellent Art Law blog. He expresses disappointment at the result, as “if you can’t read VARA to prevent [what NY Times reporter Roberta Smith calls an opening which has ‘broken faith with the artist, the public and art itself’], you’re not trying hard enough. So needless to say, we were very disappointed by the result of Friday’s hearing in Springfield.”
  • Mike Madison argues the judge probably made the right decision, as a “work of visual art” only exists when a work is fully realized and finished. In essence it can’t be distorted because it’s not a work yet. He also points out the claim may have more to do with trademark, and that’s essentially the remedy the judge provided: the work can be displayed but only with a disclaimer.
  • Lee Rosenbaum notes Judge Ponser was “extremely moved” by the installation, and found it “very powerful”. She argues MASS MoCA should show the installation for a week, recoup the $300,000 it invested and move on.
  • Ed Winkelman argues the result was the product of two unfortunate decisions. First was the decision by the museum to take the issue to court, “what’s the core message here? Money invested trumps artistic vision?” And second, the legal decision was “a hair-splitting technocratic decision that ignores the spirit of the law”.
Questions or Comments? Email me at derek.fincham@gmail.com

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