The Joe Thompson Rules

Sergio Muñoz-Sarmiento has some thoughts on the summary judgment briefs we filed at the end of last week in the lawsuit MASS MoCA brought against Christoph Büchel. He says "this type of gross deviance from an artist’s instructions or wishes should shock the conscience of any contemporary artist."

I’ll have more to say about the filings over the next few days, but one thing I want to call attention to at the outset. MASS MoCA’s brief includes the following section headings, among others:

• "VARA Does Not Bar Display of Unfinished Work"
• "Work by MASS MoCA Personnel to Carry Out Büchel's Plans ... Does Not Constitute 'Distortion, Mutilation, or Modification' Under VARA"

They also continue to push the completely offensive argument that the logistical support they provided somehow made them Büchel’s "co-author" on the project (see pp. 5-6 of the museum’s brief).

The point I want to emphasize for now is that, if the museum succeeds in its lawsuit, the loser will not be Christoph Büchel but all artists.

If they win the case, it will not be because of something specific to the relationship between this artist and this museum. It will be because they have convinced the Court that "VARA does not bar the display of unfinished work." Not Christoph Büchel’s unfinished work, but every artist’s unfinished work. It will be because they have established that, as long as you can claim you were "carrying out the artist’s plans" (even if, as a matter of objective fact, you carried them out incorrectly), you are immunized from VARA liability.

If MASS MOCA wins its lawsuit, artists in this country will wake up the next morning with far fewer rights than they had the day before.

I’m not sure if people appreciate that the legal case does not turn on who was at fault as between Büchel and the museum. Instead, it turns on how VARA is properly interpreted. So that it can win its case – so that it can win the right to show what it insists on calling mere "materials"–MASS MoCA is pushing for an extremely narrow reading of the statute (it doesn’t prevent the display of unfinished work, etc.). If the museum does get the right to show those mere "materials," then, it will have done so at great cost to artists’ rights generally.

So what Joe Thompson did on his summer vacation – in addition to being "sad, dumb, and shameful," in addition to wasting his premier gallery space during the museum’s peak visiting season – was to work towards a general narrowing of artists’ rights in this country.

If he succeeds, we can call the new legal principles that result "The Joe Thompson Rules."