After my post this morning about the Christoph Buchel imbroglio, Joe Thompson, the director of Mass MoCA, sent me an e-mail with a defense of his museum’s actions. Thompson also wants to make clear that he does not agree with claims made by Buchel’s lawyer Donn Zaretsky that the judge’s ruling in the case amounts to a finding that the Visual Artists Rights Act does not protect unfinished works. Mass MoCA has taken something of a beating in recent weeks, so the e-mail is worth reproducing in full:
You should know that many of the characterizations of Judge Ponsor’s rulings – especially those being bandied about on attorney Zaretsky’s blog – are, in our view, just plain wrong. Like Zaretsky, I was in the court, but I took notes. The court most certainly did not rule that VARA (the Visual Artists Rights Act) does not apply to unfinished work. Nor, I hasten to add, did we ever argue that VARA does not apply to unfinished work. (Indeed, our counsel expressly pointed out to the court at the hearing that VARA does indeed apply to unfinished work, and that we had never disputed that.) To say the least, it’s frustrating to us to see it suggested otherwise.
What we did argue is that VARA does not prohibit all display of unfinished works of visual art, simply because they are unfinished. This makes common sense: unfinished art is frequently displayed.
The judge ruled that the Copyright Act and VARA did not bar the museum from displaying the materials in our gallery in the manner we proposed, i.e., with a notice making clear that the viewer was not seeing a finished work. The judge went further and suggested that there was almost no value to this case in determining precedent in future VARA cases because the ruling depended on facts that were in the record before him regarding the specific working arrangements between MASS MoCA and the artist. (I don’t want to put words in the judge’s mouth here — he indicated that he intends to issue a written opinion in the next couple weeks, and you should look to that when it comes out.)
In my view, about the only lesson one could draw from the judge’s narrow and carefully articulated ruling was that if you are an artist who agrees to undertake a complex project like this, and you take advantage of considerable human and financial resources from an institution helping you realize your intentions, and then you up and abandon that project mid-stream, leaving behind materials in a public institution, then there are consequences of that act.
In other words artists do have rights, but so to do the people and institutions who support them in their work. And if both artists and museums have rights, then they also have shared responsibilities. It’s actually quite simple. We were pleased that the judge declared that decisions regarding the ultimate fate of materials abandoned in our midst were up to the curatorial discretion of the museum. Having been granted that right, we tried to exercise it with the same standard of care evidenced when we preserved those materials in our gallery pending the court’s ruling (rather than taking some sort of unilateral action to display or dispose of them), and when we shielded them from public access and view during that same period.
Back to me:
Two points — First, Thompson is right that the question of just how Judge Ponsor applied VARA can only be answered when we see the judge’s ruling, not just the reports about it. (Which is why I hedged my words in my post this morning. “It appears…” and “If so….” etc.) We’ll be keeping an eye out for it.
For the second point, let’s revisit a line in Thompson’s final paragraph.
“We were pleased that the judge declared that decisions regarding the ultimate fate of materials abandoned in our midst were up to the curatorial discretion of the museum.”
Where Mass MoCA went wrong is precisely in the matter of curatorial discretion. However you judge the question of whether VARA covers unfinished work, Mass MoCA would have better served the art community — and its own interests and reputation — if it had simply and unambiguously dismantled Buchel’s uncompleted installation. Regardless of whether it had the right under law to display it in an unfinished state, the museum should have resisted the temptation.