Saturday, September 22, 2007


Ever since Roberta Smith's piece in last Sunday's New York Times, I've been saying that, if you can't read VARA to prevent the outrage she described, you're not trying hard enough. So needless to say, we were very disappointed by the result of Friday's hearing in Springfield. There wasn't enough time between the end of the hearing and the beginning of the holiday for me to put up a post, but, fortunately, Ed Winkleman pretty much summed up my feelings in the meantime:

"There are two very disappointing decisions behind the ruling by Judge Michael A. Ponsor, who in Federal District Court in Springfield, Mass., concluded that Mass MoCA can exhibit the unfinished work by Christoph Büchel.

"The first was the decision by Mass MoCA to take the issue to court. Fighting for the right to exhibit an unfinished work strikes me as more about the institution or its leadership's bruised egos than any higher ideal, like, say, Mass MoCA's mission. Seriously, what's the core message here? Money invested trumps artistic vision?

"As I've noted before, I'm not without sympathy for any institution that an artist targets as a patsy in a stunt or fails to live up to his/her side of an agreement with (and I'm not saying that's what Büchel did here...I'm just saying there are instances where an institution is right to fight back against an artist), but such fighting has to stop short of saying it's the institution's decision whether or not an unfinished work should bear that artist's name in the public's eye. If Mass MoCA wants to exhibit the work as a creation of their own but 'after Büchel' that's another matter (über-lame, but another matter), but to open the doors to a public, many of whom might not have followed the controversy or understand even the most prominent of wall texts explaining the context, is to willingly misrepresent the work of the artist. And yet, that's exactly what Mass MoCA went to court to claim was their right to do.

"The other disappointing decision, of course, was the legal one. I am not a lawyer, and the decision as reported seemed to be limited to the judge's interpretation of the Visual Artists Rights Act of 1990 and nothing more, but it's a hair-splitting technocratic decision that ignores the spirit of the law, in my opinion. ... How Ponsor failed to interpret the finalization of the piece before the doors can open ... as a 'modification' of the work is beyond me, quite frankly.

"Mass MoCA seems to be trying to move on now that they've won this decision ... but I'm afraid that long-lasting damage has already been done here."

Sergio Muñoz Sarmiento adds:

"This is a death-blow to contemporary artists, national and international alike. On its face, it gives a granting and/or commissioning institution the power to exhibit an artist’s art work without her/his permission unless there is a written agreement to the contrary. Theoretically, the judge’s decision eviscerates an artist’s power to dictate when the artist’s project is in a state where the artist feels comfortable and willing to put it out for public exposure. ... What MASS MoCA and its director, Joe Thompson, should realize, is that although they have been granted the legal right to show Büchel's artwork, this doesn't necessarily mean that they should. Even if they come to their senses and not continue to exhibit Büchel's work, the damage has been done. Unless appealed, the ruling now gives visual artists much less protection under the Visual Artists Rights Act, making this federal law much more useless than before."

And this from the Intellectual Property & Technology Forum & Journal at Boston College Law School: "Although they can now display Büchel’s work, with a notice that it is unfinished, Mass MoCA gains little from the win beyond a reputation for not respecting the artists it chooses to display."

We're still considering our options for appeal, so I'll leave off for now with the Roberta Smith piece I mentioned at the top. She was right that the dispute, for all its sound and fury, really came down to a simple principle:

"If an artist who conceived a work says that it is unfinished and should not be exhibited, it isn’t — and shouldn’t be. End of story."

It's a shame -- for all artists -- that the Court did not agree.