Monday, March 03, 2008

"A spectacular own-goal"

Randy Kennedy had a story in yesterday's New York Times on a series of work my client Christoph Büchel has been making regarding the lawsuit Mass MoCA brought against him last spring, and the museum's continuing efforts to keep from public view documents relating to the dispute. For the moment, a couple things to note about the article.

First, Mass MoCA's Joe Thompson is quoted as saying the documents are being kept hidden because they "include the names of donors and others who he feels should have the right to privacy." But we have repeatedly invited the museum to redact out any donor or bank-account information they think appropriate. (In my last letter to the museum's lawyers, I wrote: "As I have said before, we are willing to accommodate any legitimate confidentiality concerns the Museum may have through the redaction of bank account details and the like. But the Museum has no right to restrict Christoph's ability to speak about what happened in North Adams simply by applying a 'Confidential' stamp to documents it wishes did not exist. As a nonprofit, Mass MoCA has a duty to the public to be completely open about its finances, operations, and activities.")

Second, and Kennedy mentions this but I think it bears further emphasis: if the museum had had its way, all of the documents it produced would still be confidential. In August, the museum made a motion to have all documents and other discovery kept from public view. The court, quite properly, rejected the request. Sergio Muñoz Sarmiento covered this in depth last summer. As he said then, "it boggles the mind that an art institution--traditionally against censorship and creative restrictions--would try to enforce the silencing of artistic voices through force of law."

One last point. Near the beginning of the piece, Kennedy notes that Mass MoCA "sue[d] Mr. Büchel in federal court, asking for the right to open to the public an immense installation that Mr. Büchel had been assembling for months." I was glad to see that because from time to time I hear it said that what the museum sued for was a mere "declaration of its rights," that it was afraid that, if it canceled the show and took the work down, it would be sued for that and so it had no choice but to go to court to find out what it was permitted to do. Not so. From the beginning, we asked the museum to dismantle the work, and they refused. As we said in one of our briefs to the court, "Büchel has no [objection to taking down the work and putting its components in a landfill] and, in fact, believes that the foregoing is part of the appropriate remedies to which he is entitled. Simply put, MASS MoCA can -- and should -- remove the unfinished 'Training Ground for Democracy' from Building 5 and dispose of it." The museum continued the lawsuit not because it wanted to know "what its rights were," but because it wanted a particular outcome, and that outcome was to show the unfinished work to the public over the artist's objections.

Lawyer Virginia Rutledge also gets this right in her piece on the case in the new Artforum. She notes that "Mass MoCA asked the District Court of Massachusetts to declare that the museum was legally entitled to display Büchel’s unfinished work" (and also points out that this was "the first time a US art institution has ever sought legal sanction to present work against an artist’s will"). She also does a good job highlighting "Mass MoCA’s astonishing and troubling arguments regarding the status of Büchel’s work as art," including its argument that "because of the collaborative nature of the project, Mass MoCA was a 'joint owner of any copyright'" (an "insult," she adds, that "cannot easily be taken back").

Withers Bergman's Daniel McClean also gets it, in his piece on the case here (it starts on p. 7): "Mass MoCA took the highly unusual step of applying to the court for a declaration that Büchel would not be able to prevent it from displaying his disclaimed exhibit." McClean's conclusion is that "Mass MoCA scored a spectacular own-goal": "Aside from the waste of public funds involved, the [case] must be viewed as creating an unfortunate precedent, not least for striking a blow to artists' moral rights in the United States."