UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS ) MASSACHUSETTS MUSEUM OF } CONTEMPORARY ART FOUNDATION, INC, Plaintiff/Defendant-in- } Counterclaim, } CIVIL ACTION vy } NO. 3:07-30089-MAP ) CHRISTOPH BUCHEL, ) ) DefendanvPlaintiff-in- Counterclaim, 5 SSS MEMORANDUM OF SUPPORT OF DEFENDANT a OR Y JUDGMENT Jonathan M. Albano, BBO #013850 Carol E. Head, BBO #652170 BINGHAM MCCUTCHEN LLP Of Counsel: 150 Federal Street Donn Zaretsky, Esq. Boston, MA 02110-1726 John Silberman Associates P.C. 617.951.8000 145 East 57" Street, 9" Floor New York, NY 10022 Mark M, Elliott* 212.319.3737 BINGHAM MCCUTCHEN LLP 399 Park Avenue Dated: August 31,2007 AVPaIBHHS 278a96636.0000526582 ‘New York, NY 10022-4689 212.705.7000 *Admitted pro hac vice Attorneys for Defendant Christoph BachetDefendanvPlaintif{-in-Counterelaim Christoph Biichel (“Buchel”) respectfully submits this memorandum of law in support of defendant's motion for summary judgment, pursuant to Fed. R. Civ. P. $6, PRELMINARY STATEMENT. “The best unfinished work of art ofthe century.” Jae Thompscn, March 7, 2007. This case presents questions of considerable significance in the art world: Does someone other than the visual artist have the fight to decide when that artist's work is finished or otherwise in a state suitable to be shown to the public? Can an institution modify a visual artist's unfinished work without that artist's consent? Massachusetts Museum of Contemporary Art Foundation, Ine. (“MASS MoCA”) would answer both of these questions in the affirmative. The plain language of the Visual Artists Rights Act, 17 U.S.C. § 106A (“VARA”) provides otherwise. IfMASS MoCA wants to secure these unprecedented rights from an artist whose works it secks to display, it must obtain a signed agreement to that effect from the artist. 17 U.S.C. § 106A(e). Absent this, the artist's rights remain inviolate. It is undisputed that there is no such signed waiver from Christoph Biiche! -- his VARA rights are inviolate. VARA affords the visual artist “moral rights” that: protec[t] both the reputations of certain visual artists and the works of art they create. It provides these artists with the rights of “attribution” and “integrity.” ‘The former ensures that artists are correctly identified with the works of art they create, and that they are not identified with works created by others. ‘The latter allows artists to protect their works against modifications and destructions that are prejudicial to their honor ar reputations. HR. Rep, No. 101-514, at 5, reprinted in 1990 U.S.C.C.A.N. 6915. An artist retains these “moral rights,” as long as he lives, regardless of the ownership or possession of the works of art that he creates. Section 101 of the Copyright Act is clear: works in progress are protected, and courts have repeatedly affirmed this plain reading, ‘Thus, the statute’s definition of “created” explicitly Ar7R194483 218066536-DOONRRASD. iprotects unfinished works: “where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time... ..” 17U.8.C. § 101. No fucther statutory interpretation is necessary. “Training Ground for Democracy” is ambitious, complicated and remains unfinished. There is no doubt that it is an unfinished work of visual art — and one of significance: Joe ‘Thompson, MASS MoCA’s director, describes it as “the best unfinished work of art of the century,” “deeply moving,” “a phenomenon,” and “the Guemica of our time.” This is @ far ery from the position MASS MoCA has taken before this Court that itis mere “Materials.” MASS MoCA filed this lawsuit precisely so that it could display “the Biichel,” and attract, visitors (and admission fees) to its museum and gamer accolades from the art world. The display of an unfinished work of art, against the artist's wishes, is an inherent distortion of an artist's work directly prejudicial to his artistic reputation. ‘This is supported by common sense, analogy with Copyright Law, and by expert testimony, ‘And MASS MoCA has already violated VARA. In its zeal to show “Training Ground for Democracy,” MASS MoCA intentionally and willfully modified and distorted Biichel’s work of art. A public showing of their modifications would compound these violations. ‘After communications between Biichel and MASS MoCA broke down in January 2007, MASS MoCA continued to “work” on “Training Ground for Democracy” for four months without Bilchel’s supervision -- offen contrary to his instructions, and without his approval. “Thompson testified that in adding to BUchel’s work, they took their “best reasonable guess” as to what Buchel would have wanted and they knew there would be “some holes there.” MASS MoCA did this knowing (a) that, as its production manager noted, “[gJoing ahead with some of these requests treads on ground that Buchel asked us to stay away from”; and (b) that Bichel is a hands-on artist who needed to be present to supervise the work through a process of ‘juxtaposition and fit.” ‘There is no fact issue: MASS MoCA intentionally and willfully distorted and modified “Training Ground for Democracy.” ArTAL94883-213906636-000526582 2