BY Daniel McClean in Frieze | 15 OCT 07

The Art Institution on Trial

Mass MoCA v. Christoph Büchel: a recent court ruling raises troubling questions about the limits of artistic control

BY Daniel McClean in Frieze | 15 OCT 07

The recent trial between the Massachusetts Museum of Contemporary Art (Mass MoCA) and Swiss artist Christoph Büchel, heard on 21 September 2007 at the Springfield District Court, Massachusetts, raises troubling questions about the rights of artists to control the display of their work and the responsibilities of curators to protect artistic vision. Though this high profile dispute has been played out within the inappropriate context of litigation, the questions raised are as much ethical as they are legal and go to the core of future collaborations between artists and curators.

The issue in the summary trial was whether Mass MoCA was legally entitled to present Büchel’s unfinished installation, Training Ground For Democracy (2007), when it has been abandoned and publicly disclaimed by Büchel as a work of authorship. Büchel’s commissioned project (begun in the autumn of 2006) was a vast, complex installation modeled on the mock villages used by the US military in warfare simulation, but ironically transformed in this context to convey the experience of living under warfare and to promote democratic values. The installation (incorporating amongst other objects, a sliced house and smashed cars) became the focal point of Büchel’s acrimonious dispute with Mass MoCA in the wake of spiraling production costs and the institution’s failure in Büchel’s view to realize the project as he had intended.

In May 2007, Mass MoCA took the unprecedented step of applying to the court for a declaration that Büchel would not be able to injunct the display of his disclaimed exhibit (placed under tarpulin wrapping in Mass MoCA) which Büchel counter-claimed against. Remarkably, there was no written contract between Büchel and Mass MoCA, so the trial centered exclusively on whether, in displaying Training Ground For Democracy, Mass MoCA would infringe Büchel’s artists’ moral rights as protected under The Visual Artists Rights Act, 1990 (US). The two rights invoked in the trial were the artist’s right to prevent the work from being shown in a distorted or modified form prejudicial to his honour and reputation, and the artist’s right to prevent a work (not made or authorised by the artist) from being falsely attributed to him.

In ruling for Mass MoCA, Judge Posnor held that Mass MoCA would be entitled to present the exhibit, providing it was accompanied by a sufficient public disclaimer (as Mass MOCA had argued for), stating that the work was not authorised by the artist. This would avoid harming Büchel’s reputation and avoid any suggestion of false attribution. Judge Posnor was not unsympathetic to Büchel’s installation and confessed to having been very moved by the work when seeing it. He was, however, persuaded by the finding that Mass MoCA had played an important collaborative role in assembling the materials in Büchel’s installation (spending more than 300,000 dollars in the process). The judge also maintained that an artwork logically needed to be ‘created’ by the artist before it could be modified or distorted.

Yet Mass MoCA’s victory proved to be a pyrrhic one. Shortly after the trial, Mass MoCA’s trustees, most likely afraid of further litigation, announced that Büchel’s installation was to be dismantled. What are we to make of this fiasco? Aside from the colossal waste of museum funds, the Mass MOCA v. Büchel trial has established a very ugly precedent within the art world: pitting artist against institution as litigants, and potentially allowing institutions to trump the rights of artists.

Few would dispute that the purpose of the gallery or museum is to preserve artistic intentionality and authorship, however collaborative the relationship between artist and curator may be. It is clear that curators must be faithful to artistic intentions and directions in order to communicate and preserve artistic speech, and it surely up to the artist to decide when an artwork is or is not finished prior to the artwork’s release into the public domain. Whatever we might think of the formal legal merits of Judge Posnor’s decision, in essence exhibiting a disclaimed and unfinished work is surely, substantially similar to exhibiting an existing work that has been distorted or modified. Morally speaking, for a museum to present a ‘disclaimed’ artwork is tantamount to the institution scoring an own goal, undermining its very purpose or raison d’être. For this reason, Mass MoCA should not have pursued legal action and should have acceded to Büchel’s demands (which it belatedly did), however unreasonable they may or may not have been.

Yet it is also true that artists, when producing publicly funded projects, enter into a kind of moral ‘contract’ with the institution, the artistic community and with the public at large. Receiving (often generous) funds from institutions and philanthropic organisations to produce art projects should not be treated lightly (as is sometimes the case amongst high-profile artists) and carries with it responsibilities – not least because the use of these resources represents an opportunity lost for other artists to expand their own practice. For an artist to abandon a commissioned project or work (unless circumstances are absolutely dire) signifies another kind of failure.

The incorporation of moral rights’ legislation in many jurisdictions (particularly in the West) presents artists with the possibility of seeking to protect the public mistreatment of their works through legal means. This legislation has to be welcomed, though institutions do and (increasingly) will seek to limit the scope of this legislation through specifically negotiated contracts with artists. However, artists, like institutions, should be wary of resolving aesthetic and ethical disputes through the law, save in the last resort.

Daniel McClean is head of art and cultural property law at Howard Kennedy LLP, in London, UK. He is also a writer and curator.