Wednesday, January 27, 2010


At the close of his September 2007 oral ruling granting Mass MoCA summary judgment in its lawsuit against artist Christoph Büchel, District Court Judge Michael Ponsor said: "I would just say, as an admonition, not to be overly comforted by my [decision], because I would imagine if this matter goes before the First Circuit, it will be scrutinized afresh, and only a reckless person would predict what the Court of Appeals is likely to do with the very complicated issues that this cases raises."

Well, he was right about that. Today the First Circuit reversed his decision, holding that "the record permits the inference that … Museum staff members were disregarding [Büchel's] instructions and intentionally modifying 'Training Ground' in a manner that he did not approve." (Longtime readers will recall that I was one of Büchel's lawyers at the District Court level. Volunteer Lawyers for the Arts kindly stepped in to handle the appeal, along with George Conway and his team at Wachtell, Rosen, Lipton & Katz, on a pro bono basis. As is obvious from the result, they did a terrific job on the appeal.) The Court forcefully held that VARA applies to unfinished works, and clearly rejected Mass MoCA's "contention … that the unfinished installation might constitute a joint work of Büchel and the Museum." A good day for artists' rights.