Artist and Museum Spar Over Display of Exhibit

of these rights, we consider whether, as a threshold matter, the "space constraints imposed by the materials assembled for training parts of the "saddam compound" and the cinema, and büchel and his installation. they don't cover much. you can easily crouch of specific conditions. aside from certain budgetary concerns -10- at 356 ("the standard set of moral rights recognized in the rather, the court held that, if the statute applied, "display of widely recognized are attribution and integrity. id. at 81 (citing international copyright treaty providing that works created by construing the extent of vara protection by finding that works do it with tarpaulins, and we reject as outside the scope of the unauthorized derivative work. id. 1. continuing work on "training ground" vara provides that, in addition to the exclusive rights detailed instructions and making artistic decisions in his stead, right of disclosure (also known as the right of divulgation) assum[ing]" that vara applied to "training ground for democracy" in order to finish the work in time for a march 3 opening. when he present to the public the materials and partial constructions" it chain as demonstrating the museum's disregard of his creative through the slits between the vinyl sheets. from his galleries. angry and frustrated, the artist wrote that he director joseph thompson indicated in a letter to büchel's gallery carousel, the saddam spiderhole, the police car and the mobile again, he noted several elements of the work that had been facility in october 2005 to begin preliminary discussions regarding no explicit reason for its dismissal of this claim, remarking only proves that the infringement was committed willfully, the court "in divulgation, giving the artist the right to decide when (and "rock solid integrity," had taken "extreme, mortal[] offense" to the parties differ on whether the "reasonable steps . . . taken to within vara's scope, observing at one point in its opinion that are conceived by vara, is implicated, let -20- evidence to support a right-of-integrity claim, we reject the -47- obliquely. prepare derivative works based on "training ground," and that claim more specifically, by guaranteeing the moral rights of substance or interest." crap under wrap, supra. see 71 f.3d at 86-88. -40- may 22, 2007, mass moca announced the cancellation of "training id. we agree with nimmer's surmise that vara does not provide a in general, he felt that the museum was trying to scale back his constantly my art with you or nato . . . ." accusing the museum -55- home. indeed, even the museum, in its august 31, 2007 memorandum prejudicial mutilation is an integrity violation, remediable conclude that the museum's alterations had a detrimental impact on were protected under vara, notwithstanding its unfinished state. integrity in these circumstances would make it impossible for -12- installation to the public as long as it posted a disclaimer that the court also remarked, however, that since büchel the parties never memorialized the terms of their relationship or laura flahive wu, massachusetts museum of contemporary art v. his claim under section 106(5) because the unfinished work was violation of any of the foregoing three attribution rights."). the disagreed with the museum's handling of its dispute with büchel, constitutes a distortion. we reject this claim. a separate moral advertising, promotional, or packaging materials. id. resulted in the creation of a derivative work. inc. v. büchel, 565 f. supp. 2d 245 (d. mass. 2008). büchel the meaning of the copyright act to qualify as a derivative work. both in his deposition and in his affidavit, büchel is it art yet?, supra. a critic for the boston globe similarly exclusive rights to the work, which are enumerated in 17 u.s.c. conditions of suspended law, and training described in clause (i) or (ii); we must determine whether the "positive" aspect of the definition any work of visual art which he or she did not create"; and (3) "to th[e] unfinished installation would have violated neither büchel's vara's right of attribution grants the author of a work protects an author's authority to "prevent third parties from beyond sensible boundaries. revisions, annotations, elaborations, or other modifications which, that his vision for "training ground" be fully realized. but as before the district court. by dismantling "training ground," the representative in the united states a letter on september 14, 2006 had collected for "training ground for democracy." büchel in büchel's 52-page opening brief, there is one paragraph adequate direction and understanding that we could vara. the record permits the inference that, even during his time could opt for the statutory damages remedy upon showing prejudice. although the commentary generated by these visits is not exhibited to numerous individuals.23 büchel's remaining right-of-integrity claim under vara and his at least some museum staff members recognized that insistence that there be "no transport street through the presence in building 5. büchel thus had rights in the work that we agree with nimmer's view of the provision, including shows that a number of people were able to form an impression of had agreed that büchel alone would hold the copyright in the 1. the right of integrity installation. the museum did not respond to this proposal. authorship requires proof that the parties "entertain in their section 106a(a)(3) states that the author of a work of16 prejudice inquiry "focus on the artistic or professional honor or to unfinished creations that are "works of art" within the meaning derivative work. he states that the degree of creativity needed intentional or grossly negligent assistants had begun detailing several of the containers intended or of the author as provided in section 106a(a) [vara] . . . is an let you show any work in progress, as you (2009) (noting that most european countries "recognize a right of name as the author of any work of burden of proof in a case such as this because the second part of magazine, newspaper, periodical, data base, were merely executing instructions left by the artist or whether brought two claims based on this provision, asserting that mass installation and to create derivative works based on it. "contrary to the rule that provisions of a single act should be return to finish the exhibit. plan b, which involved publicly -57- -33- legislative history states that "[t]he term 'sculpture' includes, wu, supra, at 164 (observing that vara has "acquired the attributes 5. the record reveals a genuine issue of material fact part by carter, 71 f.3d at 77. at least one commentator likewise highlight, rather than hide, the failed collaboration. the right22 büchel's honor or reputation. an article in the boston globe (iii) any portion or part of any item were vague, and his financial and logistical demands were united states court of appeals artworks of mine and as well done to the beyond the passageway formed by the tarps, the definition section, which defines "work of visual art," specifies "there is no genuine issue as to any material fact" and "the movant in the past three years." instructions left by the artist. in one email, for example, report at 15, as reprinted in 1990 u.s.c.c.a.n. at 6925-26 procuring the items necessary for the installation. büchel himself carter, 71 f.3d at 83 (quoting house report at 6, as reprinted in the installation "[m]aterials as they now stand reflect significant undisputed that, at the outset of their relationship, the parties based on revisions to the statutory language made during the15 course, that it was büchel's underlying concept (notwithstanding christoph, if we could get the input from him, we would motion for summary judgment and denied büchel's, entering judgment partially completed project and büchel's corresponding counterclaim promotional, descriptive, covering, or considered as a whole, the work is a sculpture and exists only in exposing its audiences to "all stages of art production: case, which raises important and unsettled legal issues under the integrity. surreal borough of hell, george orwell by way his or her name as the author of the work of mutilation, or modification of that work is a violation of that its unfinished state) rather than mass moca's actions that elicited although the tarpaulins did prevent visitors to the on the decision of an exhibitor such as discussing a possible difference in the showing required for mere display of "training ground" lack merit; inconsistent with the ordinary usage of those terms." id. having -42- -24- excludes a number of works that are otherwise copyrightable, part-way through the project and abandons it, a violation of that right"); id. at § 106(a)(3)(b) ("any project. in an attempt to secure further funding, it disregarded -36- "sculpture[] existing in a single copy." 17 u.s.c. § 101. the letter also identified several points of disagreement with the lipez, circuit judge. as one observer has noted, this "training ground" despite the partial covering. for example, http://www.brooklynrail.org/2007/09/artseen/buchel. another critic supporting citation, that "[i]t was understood informally" that the vara claims ­ that mass moca violated his right of artistic art in its unfinished state, without the artist's consent, although a jury might agree with the court's assessment, § 8d.06[b][1] ("the statute does not make any provision to redress installation constituted an intentional act of distortion or moca and the artist involved büchel's dissatisfaction with the way "i wrote very clearly immediately to [dante birch, the17 demands: a single copy."). but the art will be shielded, n.y. times, may 22, 2007, at e1 ("the massachusetts museum of contemporary art, mission statement, vara's two explicitly recognized rights must be demonstrated with asserted that he would not "accept an opening of a work in progress büchel, we cannot say that a reasonable jury could not conclude reputation of the individual as embodied in the work that is its part in this process." 565 f. supp. 2d at 261. it further complained to thompson that in "many cases people just do stuff public display claim under section 106 of the copyright act. count." 565 f. supp. 2d at 261. 6. büchel fails to adequately develop his claim that alteration would cause injury or damage to plaintiffs' good name, display of his artwork must be found outside vara. we consider deconstructing moral rights, 47 harv. int'l l.j. 353, 373, 405 prejudicial to the artist's honor or reputation. given the stated14 ignored his express wishes. our holding that the summary judgment on the project. instead, he conducted much of his work on the citations omitted); see also littlefield v. acadia ins. co., 392 hugo and first adopted in berne, switzerland in 1886, is "'an museum personnel internally recognized büchel as the artist, at house report at 5-6, as reprinted in 1990 u.s.c.c.a.n. at 6915-16. judgment for mass moca on his copyright act claims. was not present in north adams for the first several months of work and negotiations over the project's eventual completion became foreclose summary judgment for either büchel or mass moca on that elements." the second sought damages for mass moca's alleged his reply brief adds another paragraph, citing cases, but he again thompson told an outside consultant for the museum in march21 ownership on büchel. it stated that, "[u]pon termination of the expression"). taken to control and restrict the view of these materials, pending details of fabrication ­ with no enforceable material fact. massachusetts museum of contemporary art found., with büchel by juxtaposing his unfinished work with the successful integrity in three distinct ways: first, by continuing to work on which in turn describes the right of integrity as applicable to the district court correctly noted, "[t]he dispute about these signatory nations, without the need for local formalities.'" relationship ­ and that artist becomes unhappy see 5 patry, supra, § 16:22 (noting the ambiguity). because those court's grant of summary judgment for the museum on büchel's right- -29- materials, someone else's money, someone "consists of a contribution of original material to a pre-existing installed in the lobby of a building).11 copyright holder has the exclusive right to publicly display the to "see and pass through" the unfinished work, both with and damages remedy for an attribution violation. where the statutory declined to interpret vara in a way that was neither supported by moca has mishandled disputed art installation, boston globe, july www.boston.com/ae/theater_arts/articles/2007/03/28/behind_doors_a right of attribution, congress may have concluded that artists 17 u.s.c. § 101. here, multiple facts indicate that the parties' understanding from stating that the museum "seem[ed] to be getting closer and closer exhibiting the unfinished installation without the artist's on july 11, 2008, the district court issued its written criminal penalties provided under section 506, "any reference to -25- the court ruled in favor of the museum, noting that nothing in vara intended the prejudice requirement to apply to the right of we find the answer in the difference between the statutory language rights" of its creators. these are "rights of a spiritual, non- and modif[ying] the work of art" and allowing members of the public argues that it owned the physical copy of "training ground," and the text of vara itself does not state when an artistic others for potential use in the installation as soon as büchel left 6915). although an artist may not transfer his vara rights (as after that, direct communication between büchel and the included joseph thompson and dante birch, in which thompson, f.3d 1, 6 (1st cir. 2004) ("cross motions simply require us to stature." the installation without his authorization, particularly in early the focus is on the artist's reputation in relation to the altered prejudice, honor and reputation, the district court in carter passed in 1990, the visual artists rights act, 17 u.s.c. büchel conceived of the exhibit as "essentially a artist the right to dictate what that "someone the letter, signed by museum director joseph thompson, was4 "would have suffered a violation of no right recognized by this addressing the remaining claims. throughout the fall. one of the museum's curators described the as we have noted, a jury may well accept the museum's installation."). moreover, the court qualified the statute's (a) to prevent any intentional -59- project regarding its scope and it's [sic] methods that needs [sic] c. does vara apply to unfinished works of art? christoph bÜchel, to bear its own costs. however, vara is part of the copyright act, and that act's of the copyright act states that a work is "created" when it "is disregarded his specific instructions. for example, mass moca's exhibit entitled "made at mass moca," which was to be "a conduct from happening. see 17 u.s.c. § 106a(a)(3)(a) ("any particularly when, as thompson explained in an internal museum b. derivative works museum became sparse. it was during this time, büchel alleges, plaintiff mass moca to allow patrons to walk display of contemporary art. the museum "seeks to catalyze and work of art; the artist need not have public stature beyond the reputation was harmed." id. to the extent patry's conclusion is shown for both injunctive relief and damages; as we shall explain, we conclude that summary judgment my crew is being sure that they [are] getting paid." by mid- -51- -14- right-of-integrity claims based on the yellow tarpaulins and the or other compromise." during the first week of the month, mass [the tarps] don't reach the floor, and they mechanism for relief, legal or equitable, to id. at 250, and we therefore need not focus on its messy details. decade, the museum has hosted the production and presentation of büchel also claims that mass moca improperly modified and implement büchel's long-distance instructions." 565 f. supp. 2d at allow a finding that at least some of the museum's actions violated . . . in original works of authorship fixed in any tangible medium contention, rejected by the district court and halfheartedly main issues." installation in a way the museum knew might differ from büchel's from the economic rights guaranteed by section 106. 17 u.s.c. § their relationship and obtain vara waivers where necessary ­ but it fact exist concerning the first of büchel's integrity claims ­ try to sabotage the project . . . ." of the copyright act. as we have explained, the moral rights although far from complete, the work by the end of 2006 included responsible for this major delay." by early december 2006, büchel monumental elements of the installation rise and instead focuses on the rights of attribution and integrity "crap under wrap" ­ concluded that it would be a "huge mistake" to monetary recovery, failure to attribute is is entitled to judgment as a matter of law." fed. r. civ. p. büchel maintains that, even aside from the alleged behind doors, a world unseen, supra. [was] a lot of stuff not being done according to my instructions." citizens of one signatory nation will be fully protected in other posters, periodicals, works made for hire, and merchandising, renewed on appeal, that the unfinished installation might modification of büchel's artistic creation would stretch vara visual art unless that specific task has been authorized by the construction cases, we begin with the language of the statute,'" was improperly granted to mass moca because material disputes of provide information regarding "potential sponsors like foundations" legislative history. under the heading "purpose of the museum personnel were attempting to carry out büchel's vision based signify the inadequacy of more traditional copyright claims. see büchel asserts that these actions caused prejudice to his honor or integrity whether the remedy sought is injunctive relief or -9- to see it in that condition; and third, merely by showing büchel's 2. the right of attribution "many works are considered 'art' even though they capture creative not carry out the installation's original intent." the court that the museum developed a "plan b" to be implemented in the18 büchel's estimation, "training ground" was then only about 40% 106a(a)(3)); carter v. helmsley-spear,inc., 861 f. supp. 303, 329- copyright act even if those works are not yet complete.12 unfinished installation, the museum created a separate, been distorted or modified (and, unlike the integrity right, the or reputation" ­ is susceptible of a reading id. (quoting barnhart v. sigmon coal co., 534 u.s. 438, 450 modification of the work which would be prejudicial to his or her visual art in the event of a distortion, mutilation, or other damages. see, e.g., hanrahan v. ramirez, no. 2:97-cv-7470, 1998 massachusetts museum of contemporary art, press release, owner, and the owner has the right to sue for infringement." ground" until december 17, 2006, when he left for the holidays. in other device or process." 17 u.s.c. § 101. a "copy" includes the under the copyright act, a plaintiff may elect to recover6 citations omitted). complete "training ground for democracy," and three of his infringer of the copyright or right of the author, as the case may gates llp, elena m. paul, sergio muñoz sarmiento, and volunteer in the wake of this failed endeavor, the museum went to instead, for our purposes, the key conflict between mass whereby the requisite prejudice applies only that the right of attribution protects the author's right to be building 5, "housing the materials and unfinished fabrications that id. at 142 (quoting united states v. texas, 507 u.s. 529, 534 the parties do not dispute that, if completed, "training7 (ii) any merchandising item or advertising, installation, the exhibition's official opening date . . . will be tandem with vara claims"). untarped) work. see the show will go on, supra. 2007 email from thompson to other museum staff. legislative process, patry concludes that "where an intentional liability, namely, by modifying "training ground" over his ends there as well," united states v. godin, 534 f.3d 51, 56 (1st the other integrity claims, however, are unavailing. -2- may serve as a cautionary tale to museums contemplating similar which spans the length of a football field. the museum strives to definitions, courts have held that the copyright act's protections sublime 'unfinished' works of art, such as leonardo da vinci's favor, mass moca changed course. the museum posted an announcement a. the scope of vara's integrity and attribution rights though the parties have different views on whether the museum's is therefore waived. that the record shows beyond dispute that visitors looked behind artistic vision without consulting him. remedy for the destruction of a work of recognized stature that is 4. büchel's right-of-attribution claim is moot, as vara on cross-motions for summary judgment, the district court as the artist's work. no right of artistic visual art which he or she did not modification of that work which that gave mass moca patrons a distorted view of it. the record thus shows that some viewers of the scavenger hunt." however, problems soon arose, especially between -5- modifications to "training ground," merely exhibiting the work of distortion, mutilation, or other modification has already occurred, actions ultimately tarnished the artist's reputation. moreover, absence, and that the museum therefore was merely executing -46- announcement described the work as "christoph büchel's vast after careful review of the record, we are persuaded that mass moca also asserts an affirmative defense under has a right to prevent also triggers a damages remedy, and the the statutory language ­ "distortion, protections to authors of works of visual art. see carter, 71 f.3d as the vitriolic exchanges between the parties continued, -50- copyright act based on alleged violations of büchel's right to down to slip your head underneath or peek that the museum violated his exclusive right to publicly display however, result in the creation of a derivative work. entirety, does not add up to a triable issue with respect to a modification of "training ground" that subjected mass moca to vara's right of integrity, codified at 17 u.s.c. landslide 22, 24 (jan./feb. 2009) ("[t]he history of art is full of installed against his wishes. thompson and büchel traded emails17 vara does not give the artist "a right to prohibit display of over the course of the fall, tensions began to develop project," there is no indication that büchel himself ever saw, much i.e., that mass moca modified "training ground" over his granting vara's applicability, it found no genuine issues of section 106a(a)." 195, 201 (2d cir. 1998) (quotation marks and citation omitted). assert violations of his rights to control the display of the indeed, the boston globe's art critic, ken johnson,22 in direct contravention of büchel's express wishes. the parties unfinished works. see carter, 71 f.3d at 83-88 (discussing vara nothing in the language of vara or the definitions provision10 with the work, eliminating any basis for injunctive relief, and we museum's production manager] not to use the method we talked about it was to adopt the role-play of u.s. military warns that, under büchel's interpretation, "no one other than the past covered components of an unfinished mutilation, or modification of that non-existent work is simply assembled in building 5 constitute an unfinished project that [did] in addition to the journalists and museum personnel noted23 (3) subject to the limitations set forth in argumentation, are deemed waived"). http://www.commentarymagazine.com/blogs/index.php/lewis/499 (june the right of attribution under vara thus gives an artist rather than injunctive relief, would be the appropriate remedy. i will not accept without consequences our decision in phillips is not inconsistent with this12 space. installations in the future ­ guiding them to document the terms of disposes as well of büchel's contention that covering the does not prevent museums or other collaborators from working informed the museum that he would not return to continue work on resorting to the copyright act and other traditional claims. we now assess büchel's challenge to the grant of summary "distortion" or "mutilation." though not of art was created by mass moca's attempt (however flawed) to play with the available legislative history, as discussed above. it may showing of prejudice. see melville b. nimmer, 3-8d nimmer on purpose of the legislation and the similar depiction of the of the district of maine, sitting by designation.* -31- covers did not obscure the general path and layout of the perhaps the implication is that whereas an violates any of the exclusive rights of the copyright owner . . . proposed already earlier. use of his name in connection with works created by others. id. sketch the course of dealings between büchel and mass moca to put original distortion or modification need not be intentional), artistic, were met. conduct occurs. the question is whether "doing" the act the artist on appeal, büchel summarily argues that what the museum copyright § 16:1 (2009), they are part of the same statutory expression short of an artist's ultimate realization of that search for these items (at büchel's direction) as "the ultimate stature" from destruction. 17 u.s.c. § 106a(a)(3)(b). that right i. the negative reactions. however, a jury could also reasonably copyright act. see infra section iv. it had partially covered the work before its formal opening to that the museum forged ahead with the installation in the first undeveloped argument is so perfunctory that we deem the claim behind doors, a world unseen: dispute cloaks massive installation from the bench. that decision addressed only the museum's original rise only about two feet above eye level, so museum's "only remaining available gallery space"; therefore, in accepts, without discussion, that the damages remedy requires a of their relationship or firmly established the project's financial u.s.c.c.a.n. at 6921 (emphasis added). the second circuit in control and restrict the view of the[] materials" ­ the placement and citation omitted). summary judgment is appropriate where 565 f. supp. 2d at 248-29. the court therefore granted mass moca's it art yet? and who decides?, n.y. times, sept. 16, 2007, at 21. the museum promoted - and even showed - the unfinished work to in some jurisdictions, the right of integrity also generally13 be." the provision further states that, with the exception of the infer that the negative impressions resulted from the museum's -8- -19- paragraph itself is largely descriptive rather than analytical. our conclusion that the statute's plain language extends warned that, based on the information he had been provided, "there profits). we review the district court's grant of summary judgment de novo. an artist such as defendant büchel here, based inherently a distortion, we decline to interpret vara to include complaint seeking declaratory relief to allow public display of the which would be prejudicial to his or her honor assess the district court's ruling that büchel failed to raise a to plan b," gave specific instructions on various elements of the as to whether mass moca violated büchel's exclusive right under c. procedural background political rally, training to be the objects of focusing first on those facts that are undisputed, we b. vara this appeal in context. mass moca became interested in planning2 provided by section 106 of the copyright act, but subject to re-invigorate the life of a region in socioeconomic need." said: "i assume you've already laid out the general idea [to half of 2007 knowing that the continuing construction in büchel's unfinished and abandoned work somehow constitutes a distortion, mutilation or other modification of, or other derogatory violations of büchel's vara rights by "intentionally distort[ing] agree with the district court that the mere covering of the artwork (b) to prevent the use of his or her museum concerning the content of the project, including büchel's integrity violation could give rise to a selection and procurement of pre-existing buildings and vehicles the court summarized its holding this way: " w e ' l l r e m o v e t r a i n i n g g r o u n d , " museum prevented the further use of büchel's name in connection of expression." 17 u.s.c. § 102(a). a copyright owner has certain ii (begun 1505), or el greco's the vision of st. john (1608-14)."); (2006) "([t]he vara ignores the rights of disclosure and withdrawal vara was enacted as an amendment to the copyright act. see1 art they create, and that they are not identified with works büchel. the evidence we have described would permit a jury to find be required to prove the actual amount of damage to reputation, but art ever existed on these facts for the museum to distort, mutilate fuselage section fits in the show or not. i don't negotiate 1990) (stating that, on appeal, "issues adverted to in a "unfinished art may not be covered by vara at all." id. at 258; -37- to "modification," not to the antecedents of (1st cir. 2009). "a dispute is 'genuine' if the evidence about the mass moca argues that the evidence, taken in its we further conclude that, in addition to his vara claim, conditions of most museums," and mass moca prides itself on creation long-distance via e-mail, using lemons: recent developments in the visual artists rights act, 3 i will not give you any permission to u.s.c. § 106(2). a derivative work is defined as one "based upon would "inform anyone viewing the exhibit that the materials within the meaning of the copyright act ­ i.e., materials had been reprinted in 1990 u.s.c.c.a.n. at 6925 ("[a]n author need not prove alterations that would be prejudicial to honor or reputation, and responded with several counterclaims under vara and the copyright michael j. lewis, the cost of transgression, north adams at the end of august 2006, and continued to do so economic rights, vara provides additional and independent and items necessary for the project. 1, 2007, at 1n. one viewer, writing in commentary magazine, as noted above, the district court concluded that impact of such works on real property interests, id. at 142, and we that implicitly conveys criticism of büchel for the failure of the violation of his rights under the statute. artistic concept. büchel cites an email chain on february 14 that without ambiguity, the better view under the against the museum. the first sought a declaratory judgment and an unauthorized modifications to "training ground," diminishing the extend to unfinished works. see, e.g., dumas v. gommerman, 865 "to prevent" certain conduct, they both also contain an additional -53- is not implicated in this case. 17 u.s.c. § 106a(a). things have to be done, neither from you or their understanding of the intellectual property issues involved in (sept. 28, 2007) (last visited jan. 13, 2010). work (right of integrity), the right to decide when and how the "instances where economic rights, including traditional rights of -18- that purports to analyze the derivative work claim, and that remedies provided by the copyright act include injunctive relief lipez and howard, circuit judges, including all copyrights and related preparatory materials." integrity right in the berne convention, we conclude that congress statue of a horse (begun 1488), michelangelo's tomb of pope julius . . . ."). right of integrity ­ does not explicitly require a showing of fixed in a copy . . . for the first time." further, "where a work the term "plan b" appears in the record in a february 14,18 there is "no requirement that a work be complete before it is barring public display of the unfinished installation, ruling that to be büchel's work, and that his honor and reputation were harmed his attribution and integrity rights under vara and then address a. the copyright act that vara guarantees. see wu, supra, at 159 ("[c]ourts avoid right "(b) to prevent any destruction of a work of recognized the plaintiff need not prove harm to his or her honor or that section 109(c) therefore permitted it to display the iii. there is arguably some uncertainty about the plaintiff's of the installation had to be reworked to büchel's specifications. house report at 6, as reprinted in 1990 u.s.c.c.a.n. at 6915. the while an artist may "prevent any destruction of a work of explicitly agree to or reject the $160,000 figure, but suggested geoff edgers, dismantled, the boston globe, oct. 21, 2007, at 1n. 61. intentional distortion, mutilation, arrangement, fictionalization, "or any other form in which a work statutory damages instead of actual damages for each work infringed issues of fact with respect to whether the museum's copy was creator. consistent with article 6bis of the berne convention. phillips v. to those protected by article 6bis of the berne convention," id., action in relation to, the said work, which would be frequently on view, as are finished works of art." id. financial understandings is not material" to whether büchel has "this project [would] be his largest venture to date." we consider the parties' conflicting accounts of the key2 the museum doing its best to carry out büchel's concept for the art permission, called for completing various elements of the (b) confers the right to protect a work of "recognized stature" else dante and nato feel is known with 80% certainty." failures by the museum had endangered the timely opening of the picture or other audiovisual work, book, scope. the court stated that "[t]o suggest that the display of an work in question will be published (right of disclosure), and the attribution. subsection (a)(3) of section 106a, which codifies the berne convention for the protection of literary and artistic works learning curve int'l, inc., 586 f.3d 513, 520-21 (7th cir. 2009); statute büchel's claim that the museum violated vara by displaying how-not-to guide in the complicated world of installation art." environments are huge in scale," "like bristling three-dimensional a "sufficiently permanent or stable" manner to allow the work to be inaccurate sense of his art, and this is indeed a form of damage." and faulted it for underestimating the scope of his project. he id. the museum had begun seeking out some of these materials and looked different with the tarpaulins partially covering it, we appeals. because we find that, if vara applies, genuine issues of prevent any intentional distortion, mutilation, or other earlier, a newspaper reported that the mayor of north adams had and mass moca wisely does not attempt to argue otherwise. instead, john l. gardiner, with whom elizabeth a. hellmann, kurt wm. potential of determining the outcome of the litigation." presentation of training ground for democracy cancelled; new in the development of the installation, büchel proposed several project becomes a work of visual art subject to its protections. defendant, appellant. literature consists of the author's right to claim authorship the project, and those discussions continued into 2006. at some all around you, plain as day -- the cinderblock section 501(a) states, in relevant part, that "[a]nyone who8 considers just." 17 u.s.c. § 504(c)(1). if the copyright owner -35- -32- during 2006 produced an original work of art subject to copyright massive project under control, and büchel understandably insistent had generated even more work for his crew, as numerous components described the exhibit as a "self-serving photo and text display" artistic investment in a partially completed artwork, we must now all five of büchel's counterclaims. büchel appeals. the evidence viewed in the light most favorable to büchel would there is some chance we'll see him here again." other work, and -41- else" does with what he has left behind, so confers the right to protect the work against intentional visitor could walk (and climb)." according to an affidavit "training ground" was sufficiently original and distinctive within applicability. we conclude that the statute does apply to such http://www.massmoca.org/mission.php (last visited jan. 13, 2010). elephant behind a napkin," effectively inviting individuals to peek destruction of that work is a violation of that right." 17 u.s.c. t-peg, inc., 459 f.3d at 108 (citing 17 u.s.c. § 501). the distortion, modification, or mutilation of the art." id. at 260- communications in the record also could be interpreted as showing it cannot be disputed that, at least by the time büchel moca created unauthorized derivative works based on the uncover the installation, which offered "virtually nothing of evidence in our summary judgment analysis, infra. http://www.berkshirefinearts.com/show_article.php?article_id=368& (1st cir. 2009). "the presence of cross-motions neither dilutes "certain modifications and other derogatory actions" that would be context of the creation at issue. see house report at 15, as f.2d 1093, 1097 (9th cir. 1989), rejected on other grounds by museum from seeing the entire unfinished installation, the record "training ground," or whether the tarpaulins simply "hid[] an violation of that right"). the museum would have been subject to a right-of-integrity claim if by more than 250 individual artists. some of these works have been curator susan cross, who cautioned thompson in a january 31 email copyright act: not aware "and had no reason to believe that his or her acts alleged violations of his rights under both vara and the general permission and to his detriment gives rise to a right-of-integrity in early 2007, when he was no longer on-site, büchel spaces cb indicated . . . . that's not 'doing a buechel [sic]' a reasonable jury could find that büchel is entitled to relief the installation in 2007. commissions, 32 colum. j.l. & arts 151, 163 (2008) (noting that on a piece of art and handles the process of explicitly address protection for site-specific works despite the no such "violation" clause is included in the sections favorable to büchel in determining whether there are genuine issues speculates as follows: or reputation; and drawing, diagram, model, applied art, motion the tarps, that the tarp-adorned installation was "judged by others objections, to his detriment. we further conclude that the record büchel's express wishes and, in late december 2006, asked for money counterclaims sought damages and injunctive relief under the ed. (1999)). threshold questions such as whether the artist's work is a work of (emphasis added.)19 complex collaborative projects between artists and institutions." of the copyright act permits distinct treatment for the rights of hmr, lindsay r. dickerson, and skadden, arps, slate, meagher & flom re-scheduled." therefore, mass moca was "entitled to present" the unfinished such a claim where a separate moral right of disclosure is widely wl 34369997, at *3 (c.d. cal. june 3, 1998) (citing 17 u.s.c. § see 17 u.s.c. §§ 501(a), 504(c) (stating that a vara plaintiff may "training ground for democracy." see mass moca has mishandled major components," some but not all of which later became part of given büchel's right to protection under vara for his liability under vara. various sea containers, a bomb carousel, and an aircraft fuselage. to get very detailed and would require input from that "we tend to forget that whether we're doing the welding or beyond the copyright act's protections of certain -52- 3. büchel has adduced sufficient evidence to raise a federal court seeking a declaration that it was "entitled to to "prepare derivative works based upon the copyrighted work." 17 a first name will refer to museum director joseph thompson. nato statute, this messy situation simply fell outside the boundary of components of the installation, including the cinema, the bomb gathered for training ground for democracy and [would] not permit work of recognized stature, and any 26, courts have had little occasion to give content to the rights to display that copy publicly." 17 u.s.c. § 109(c). the museum under the copyright act, "[c]opyright protection subsists legislative history sheds no light on this difference, but nimmer visual art within the scope of the act," pa & robinson, supra, at purposes is stated "in terms both positive (what it is) and in his deposition, thompson testified as follows:20 from distortions, mutilations or modifications of their works that show will go on"). one critic has stated that "mr. büchel's standard articulated by the district court for proving a violation of david lynch. 2007, the court held oral argument on the cross-motions and ruled following way: for violation of the right of attribution is a separate question. reported that, in february, museum officials had shown the noted that he was "interested in protecting the museum from interestingly, nimmer raises, and dismisses, a different ralph e. lerner & judith bresler, art law 417, 420 (1989)). we (footnotes omitted). relying on dictionary definitions of that principle does not prevent collaboration at the implementation copyright act." id. at 260. this statement reflects a misreading -48- rehearsals, sculptural fabrication, and developmental workshops are would be prejudicial to his or her honor or reputation" and the claims stemming from an unfinished, walk-through sculpture being granted to specific artists under vara are separate and independent second, by using tarpaulins to "partially cover[]" ­ and thus present to the public the materials and partial constructions (1) shall have the right -- meanwhile, the museum was running out of money for the -4- ii. reading vara in accordance with the definitions in protection, which is highly doubtful, clearly no 'derivative' work christoph büchel is a swiss visual artist who lives and if it's reviewed as a buchel we're in deep shit." thompson's plans artist's copyright in his or her work" and "spring from a belief in august 2006, büchel spent ten days in residence at right of integrity, is further divided into two subsections: (a) "honor," or "reputation," the house report recommended that the ground" in a manner that he did not approve. for example, on -22- clause stating that the occurrence of that conduct is, at least in propaganda, training to be interrogated and available under copyright law, other than criminal remedies, are absence would frustrate ­ and likely contradict ­ büchel's artistic in büchel's absence, mass moca staff continued to work on installation throughout the fall of 2006 remotely, by providing demands, büchel wrote to thompson again on january 27, 2007. he and the installation no longer exists; acquire, at büchel's direction but its own expense, the materials fact is such that a reasonable jury could resolve the point in preserved." carter, 71 f.3d at 81. the recognition of moral progress of "training ground." he called the museum disorganized of the project. the prejudice showing is necessary for both injunctive relief and a project entitled "training ground for democracy." as museum numerous visitors without büchel's consent, in one form or another. the installation. the parties disagree as to whether the employees "offer visual artists the tools and time to create works of a scale article 6bis of the berne convention, which is titled "moral14 object to certain modifications and other derogatory actions." the vara. the museum sought a declaration that it was "entitled to for the first circuit section 106(5) of the copyright act to display his work publicly; level so long as the artist's vision guides that implementation. for the attribution right differently from the integrity right. or reputation as a visual artist. to address the vara and copyright act claims remaining in the case. a derivative work within the meaning of the copyright act with thought-provoking insights into the complexities of the art- "moral rights" of certain visual artists in the works they create, the installation "and said it was one of the best works he's seen 71 f.3d at 83 (citing 17 u.s.c. § 506); see also 17 u.s.c. § 831 f. supp. 295, 314 (s.d.n.y. 1993) ("[t]he [copyright] act artist himself . . . may ever perform any work in fabricating period had concluded, mass moca would not contest büchel's sole that's prepping for buechel [sic] assuming, as we still are, that material fact would foreclose summary judgment on one of büchel's without checking back if its ok to do s[omething], when they think r e l e a s e " ) , a v a i l a b l e a t specific works of art, in which the particular location of the observed that "i am not sure that it suffers from being enveiled." opening date of december 16, 2006 for the exhibit. conclusion were intended, congress certainly letter to büchel the following day, joseph thompson stated "we sometimes to crawl, through." randy kennedy, the show will go on, exhibition" and that he did not "need to be told if an airplane work in its unfinished state, which he claims was a distortion. which was to be exhibited at the massachusetts museum of reputation. owner, is entitled, without the authority of the copyright owner, displaying a work is defined as "show[ing] a copy of it, either held, büchel's contention that his work was modified without his pembroke real estate, inc., 459 f.3d 128, 133 (1st cir. 2006); displaying the unfinished installation and damages for the museum's when an artist makes a decision to begin work of material fact regarding the alleged violations of his right of copyright shall be deemed to include the rights conferred by letter, issued an ultimatum: he would return to north adams to consent," and is not covered by vara. see cyrill p. rigamonti, indisputably unfinished "training ground for democracy" was a "work the derivative work distinguishable from its prior work in any "ensures that artists are correctly identified with the works of then nothing in the visual artists rights act of visual art the right, in part, (1) "to claim authorship of that cooperatively with artists on such non-traditional artworks. artist." we disagree. although the artist's vision must govern, vara."). unsurprisingly, therefore, we have found no case law yellow tarpaulins and displayed it in that condition. he asserts visitors to "made at mass moca" could not avoid seeing the -6- democracy" constituted a public display of his work in violation of quality of the work and thereby harming büchel's professional honor with this legal framework in mind, we turn to the record typically require a lengthy period of installation and that have been modified and incorporated into the [m]aterials." advertised as a büchel in the museum's schedule, he stated that documentary project exploring the issues raised in the course of vara claim. the court stated that it would "in the coming weeks" artwork is one of its physical elements and removal of the artwork as an artist-in-residence at mass moca, museum staff members were when reviewers came, "the question will be 'what is it?' . . . and own various identities in relation to the installation" and, as reflected in the emails described above, büchel, and his assistants and the museum workers had put numerous publicly display and create derivative works from his work. framework. -7- 30. that "[f]or the reasons already stated," presumably in its works. title to any copyright in the completed work. the parties set an objections in a manner that harmed his honor or reputation. his nonetheless, although the installation unquestionably see also id. at 259 ("[i]t is doubtful that vara even covered the section 113(d), shall have the right -- throughout the opinion, any reference to "thompson" without3 (shs), 1997 wl 685336, at *4 (s.d.n.y. nov. 4, 1997) (noting that artist contributes to his or her work. that convergence between certain circumstances, "a violation of th[e] right" to prevent the -27- the project was never completed. numerous conflicts and a steadily building's lobby." 71 f.3d at 80; see also id. at 84 ("concededly, 30 (s.d.n.y. 1994), aff'd in part, vacated in part, and rev'd in and woodcock, district judge.* inference that the museum was deliberately communicating its anger or her honor or reputation, and [that] any intentional distortion, along" by "making a few decisions in [büchel's] stead." thompson contains sufficient evidence to allow a jury to find that mass (citing h.r. rep. no. 101-514, at 5 (1990) ("house report"), as excludes certain categories of artwork listed in section 101 of the "lawfully made," as it may have been created in violation of the work so as to recast, transform or adapt the pre-existing work," protected by the copyright act"); playboy enters. inc. v. dumas, the right of integrity "allows the author to prevent any deforming could obtain adequate relief for the harms of false attribution by observed that "many people are going to judge [büchel] and his work museum in preparing galleries for christoph büchel's vast history paintings," yet are "so obsessively detailed that they vara's legislative history. we nonetheless note that we have vara applies to unfinished works but instead must decide its copyright § 8d.06[c][1] (noting that "an intentional and and actual or statutory damages. see 17 u.s.c. §§ 502, 504.6 (b) to prevent any destruction of a massachusetts museum of contemporary art foundation, inc., id. further concerns in an email to thompson later that month: "i don't we summarize our holdings: that no evidence of harm is necessary, we reject it as inconsistent -26- claim under vara. every modification of a work of art does not, drawn, is that prejudice applies in all three infra section ii. v. maravilla, 907 f.2d 216, 231 (1st cir. 1990) (citation omitted). contemporary art ("mass moca," or "the museum"). unfortunately, moral rights protect the personality and creative energy that an this is not to say that mass moca was necessarily acting close of discovery, both sides filed cross-motions seeking summary protection and preservation serve an important public interest." authors' and artists' moral rights: a comparative legal and büchel's right of integrity was not implicated by mass moca's -54- of an artist's vara rights in an unfinished work of art. artist and artwork does not await the final brush stroke or the and any more pressure or compromises how museum personnel with detailed instructions as to the particular derivative work claims, particularly as it intersects with vara's finally, büchel presented evidence that the museum understood that under vara based on the museum's continuing work on "training materials he required and their placement within the exhibition thompson's efforts. sum of not more than $150,000." id. at 504(c)(2). the award may instances. of certain visual artists and the works of art they create.'" genuine issue of material fact with respect to any of his claims. 4, 2007). a review published in berkshire fine arts ­ subtitled all negative, there was sufficient evidence for a jury to find21 final form. fixed at any particular time constitutes the work as of that time." sized art installation entitled "training ground for democracy," 2. the right of integrity under vara protects artists in which the museum was implementing his instructions and which would be prejudicial to his or her honor complete. at the time, he planned to return on january 8, 2007, in section 109(c), which provides that "the owner of a particular copy one or more preexisting works," such as a translation, musical less signed, this proposal. the gallery responded with a proposed4 artists who have "created" works of art within the meaning of the to see most of the work . . . . mass moca is hiding an elephant electronic information service, electronic compromising his artistic integrity and failing to follow his its discretion" may increase the award of statutory damages to "a 501(a).8 director of showing "little respect towards [his] plans," he told seeking to prevent the museum from showing the then-existing work. also raised concern among other mass moca employees, including lawyers for the arts were on brief, for appellant. scope and precise specifications by executing any written someone else's property, someone else's construed in as harmonious a fashion as possible." united states of yellow tarpaulins over the unfinished work ­ actually concealed cir. 2008). "if the statute's language is plain, the sole function 549 (2d cir. 1995). the statute's coverage to the rights of attribution and integrity. asserts in summary fashion that the modifications resulted in a here, the plain language controls, and there is no conflict with packaging material or container; distortion, mutilation, or other modification of that work which its staff members in fact reflects a conscious effort to determine vara and, a fortiori, outside the more general provisions of the lay out a definitive budget for the project, although in a separate all authors under the copyright act, 5 william f. patry, patry on training iconoclasm, training to join a the installation "as its elements evolved through discussions with public participation a seamless continuum." id. over the last http://www.massmoca.org/event_details.php?id=144 (may 22, 2007). drawing, print, or sculpture, existing in a single copy" or in a7 create; although büchel proffered an expert who opined that that is "sufficiently permanent or stable to permit it to be büchel asserts a viable claim under the copyright act that mass its coverage to unfinished works makes it unnecessary to delve into works in basel, switzerland. he is "known for building elaborate, honor or reputation." 17 u.s.c. § 106a(a)(1),(2). the right § 106. t-peg, inc. v. vermont timber works, inc., 459 f.3d 97, 108 during the first few days of february, with büchel stating that he would not move forward with the installation until "all financial making process." id. the release further explained that, due to (1) independently of the author's economic rights, and protects artwork from destruction. see carter, 71 f.3d at 81. in before mass moca violated his exclusive right under section 106(2) to no. 08-2199 be problematic. later in the february 14 email chain, dante birch distortions of his work, not from disparaging commentary about his looked closely at that history, and it fully supports our reading § 106a, was an amendment to the copyright act that protects the minds the concept of joint ownership." thomson v. larson, 147 f.3d büchel's vision rather than exercising its own artistic judgment to installation constituted a modification of the original work that displaying "the unfinished work of art or any of its component remediable solely through injunction. if that on its website stating that it had "begun removing materials thus, the inadequacy of claims under vara does not, on its own, "'long-established and familiar principles'" of the common law. unfinished work. here again, however, the record reveals disputed compromises, where you have to fight constantly against "allows artists to protect their works against modifications and also be reduced to $200 if the infringer proves that he or she was although vara does not define the terms "prejudicial," which he claims is confirmed by the legislative history and sparse partial covering of "training ground" may have been intended to show. büchel wrote in an email to thompson that he would not allow right to withdraw a work after publication (right of withdrawal)." copyright owners whose works are complete and those whose works are showing an unfinished work without the artist's permission is or elsewhere in the copyright act gives that never publicly displayed. however, as we have described in the previous day; it also highlighted the museum's desire to use its the installation in a written agreement. even more unfortunately, section (a)(3)(a) ­ stating that "any intentional distortion, assumed that vara applies to unfinished works of art, but it authorship of a work. whether vara entitles an artist to damages unfinished project to a group of museum directors and curators who -21- -28- with pure intentions when it created "made at mass moca" in close recognize that vara applies with equal force to incomplete artistic action . . . without the need for proof that the artist's honor or reputation." 5 patry, supra, § 16:22. he further states, without (a) to claim authorship of that distortion, mutilation, or other insisted that the museum postpone the opening of the show and legislation," the house report notes that the right of integrity might best be described as panoramic collage." roberta smith, is creating, or failing to create, a work of art are not equivalent to representatives, mass moca understood that "büchel's projects created by others." house report at 6, as reprinted in 1990 iv. id. the museum represented that "[r]easonable steps [had] been still in progress. we therefore reject the "special clarity" (1993)). the outset was that "training ground" was solely a christoph büchel mass moca and remand for further proceedings. we thus remand the case for further proceedings on unfortunately, the parties never formalized the contours associating the author's name with the distorted work against his however, several days after obtaining the ruling in its or reputations. house report at 6, as reprinted in 1990 left north adams, the artist was obviously disappointed with the there is no negotiation about the scope but is not limited to, castings, carvings, modelings, and that an artist in the process of creation injects his spirit into these actions effected an intentional distortion or other "attribution" or "integrity," as those terms -39- act of distortion or modification of büchel's creation. to politically provocative environments for viewers to wander, and -58- court of building 5 and the unfinished installation. after the distorted "training ground" when it partially covered it with the büchel: construing artists' rights in the context of institutional phillips, 459 f.3d at 133 n.3 (quoting black's law dictionary, 8th issue a detailed memorandum explaining its oral rulings and nor distorts this standard of review." scottsdale ins. co. v. büchel remained onsite at the museum working on "training thompson noted that "we are putting the correct objects in the damages.15 felt that museum employees, by failing to precisely carry out his vara is de novo. phillips, 459 f.3d at 139. "'as in all statutory prejudicial to his honor or reputation. artist's rights under vara. moreover, büchel introduced evidence mass moca during the construction process." id. these major someone else's suggestions regarding the in the words of the district court, "[a]t various points schematic model of the proposed installation. mass moca agreed to rights encompasses many varieties of rights," but the two most exempted from vara protections because it was a "work for hire." on the basis of this experience." ken johnson, no admittance: mass ground for democracy," the exhibition would be presented in the -30- büchel cites no cases and does not explain how the modified constitute a joint work of büchel and the museum. a claim of joint case law interpreting the statute. the museum, for its part, does all of the individual components and vital design elements of a court ruling." conduct. the court found that "nothing in mass moca's planned application to unfinished works: "to the extent that an artist integrity of the work, should therefore be protected and -17- this substantial work in place, the sculpture had an established "training ground" unless certain conditions, both financial and there are no elements to be eliminated the record also contains evidence from which a jury could not meet the threshold requirements for 'visual art' protected by narrower than the right to prevent destruction of such works. affirmed in part, vacated in part, and remanded for integrity by modifying the installation ­ we cannot assume that protect their interests" and also because courts tend to view vara right of integrity on one of his three asserted bases for thompson "please don't tell me all the time how i have to do my u.s.c. § 106(5), (2). "one infringes a copyright when he or she according to one observer, accordingly, we reverse in part the grant of summary judgment for stumbling, and eventually abandoned, process of collaboration right to owning the idea and his/her 'intellectual property?' . . . büchel alleges that mass moca violated his right to protest, and revolt, training to loot, placed in building 5 "by or under the authority of the author" in modified and distorted form. a factfinder might conclude, of evidence suggesting that the work was repeatedly and deliberately components included a movie theater, a house, a bar, a mobile home, "independent of the exclusive rights provided in section 106"). and the professional reputation of the author of the work." house together in a claustrophobic, politically that the changes to "training ground" caused prejudice to büchel. the new york times noted that the exhibition would "certainly give büchel argues that the district court erred by failing to are prejudicial to their reputation or honor, and prejudice must be recognized in other jurisdictions and congress explicitly limited genuine issue of material fact as to whether mass moca violated his final version of the provision was designed "to permit a cause of may be recast, transformed, or adapted." 17 u.s.c. § 101. a i think it is still art and still belongs to buchel." presented triable claims under either vara or the copyright act, favor of the non-moving party. a fact is 'material' if it has the provides only injunctive relief to protect the right of attribution -15- u.s.c.c.a.n. at 6915.13 the second circuit ultimately found that the sculpture was11 installation. thompson suggested that museum staff do "[a]nything on mass moca's motion, the court ordered an expedited violation of that right, and wishes would violate his right of attribution. that mass moca get in touch with his two galleries, which might necessarily follow that a plaintiff is entitled to damages once the 56(c)(2); see also sullivan v. city of springfield, 561 f.3d 7, 14 we first consider büchel's claims asserting violations of museum's actions as perhaps "occasionally misguided" attempts "to copyright act's originality requirement. the law applicable to below his claim to such a right under section 106(5) of the behavior. in our view, a finding that the museum's covering of the title 17. see 17 u.s.c. § 101. that general definitional section december 14, 2006, just before he left for the holidays, büchel -43- lawfully made under this title, or any person authorized by such collective project called "democracy": sculptural installation such as "training ground for democracy" is preparation," and that, given the gallery space of building 5, considered a "big distortion of the meaning of that element." the application of the prejudice requirement to a claim for without the yellow tarpaulins. the third, fourth and fifth section 101, it too must be read to protect unfinished, but it would assume that vara applied to unfinished works, its analysis the trailers, the carnival ride, all compacted appears to be influenced by a more limited view of the statute's continuing to work on the installation without büchel's input might ground," and contemporaneously publicized the opening of a new for the district of massachusetts identified as the author of his work and also protects against the his exclusive right under section 106(5). the district court gave "training ground for democracy." museum understandably concerned about keeping its costs for the vision. we thus conclude that a jury issue exists as to whether of transporting and organizing the various materials for the available in an action for infringement of moral rights." carter, as you propose and i don't accept any orders argues that büchel has failed to present a triable issue of fact on claim. we find no merit, however, in büchel's claim that mass moca instead, it interprets the district court's opinion as "expressly contract of its own, providing that mass moca should bear the costs vara cases that make it to court are "generally . . . decided on 2007 that a curator at the new museum in new york had just viewed violation of that right. perfunctory manner, unaccompanied by some effort at developed to encourage the creation of such art, vara protects the "moral continue forward to a certain point. when the work began behind a napkin," and called it a "wink, wink, wrap show." crap to "display the copyrighted work publicly." 17 u.s.c. § 106(5). accordingly, viewing the evidence in the light most favorable to under wrap (july 31, 2007) ("crap under wrap"), available at modify and distort ­ the installation, and allowing museum visitors -3- elect to recover statutory damages instead of actual damages and that in some instances were directly contrary to his instructions. on appeal from the united states district court -38- the statutory language nor sensible as policy. see id. at 142-43. a. public display seeks protection for an uncompleted work, a violation of one of rejected büchel's argument that, by placing tarpaulins over the of integrity under vara, however, protects the artist from disclosing [his or her] work to the public without the author's provision itself states, in relevant part: the physical copy of the installation belonged to him.24 moca agreed to delay the opening, posting the following message on limited edition. 17 u.s.c. § 101. the definition specifically thus creating derivative works under the copyright act. in25 it is also noteworthy that congress crafted a damages for a derivative work is minimal, but does not explain how the and duration impossible to realize in the time and space-cramped destructions that are prejudicial to their honor or reputations." departure from north adams in december 2006, the museum encroached respect to the layout of the [m]aterials, and with respect to the covered by the act "meet[s] a special societal need, and [its] community for creative non-violence v. reid, 490 u.s. 730, 739, modification of [his or her] work which would be prejudicial to his its website: "due to logistical complexities encountered by the noted that the installation "under all the tarps is really kind of the construction await his return, resulted in what büchel from destruction. although both subsections are framed as rights16 more than transitory duration." id. on his instructions. indeed, the museum notes that the work slowed prevented the completion of "training ground for democracy" in its complete "training ground" only if the museum assented to a number injunction under vara prohibiting the museum from publicly redone that have been built without my instruction . . . ." for the museum on its claim for declaratory relief as well as on violates one of the exclusive rights to a work held by a copyright components" all belonged to, or were purchased by, mass moca. instructions." mass moca, 565 f. supp. 2d at 247. one frequent waived. see united states v. zannino, 895 f.2d 1, 17 (1st cir. concluded that vara applies with full force to unfinished works, between the artist and mass moca employees, particularly joseph v. artist büchel." büchel responded by asserting five counterclaims including motion pictures and other audiovisual works, books, 4. summary of vara claims the brooklyn rail (september 2007), available at submitted to the district court, büchel envisioned the work in the perceived, reproduced, or otherwise communicated for a period of training to be an immigrant, training to vote, when "made at mass moca" opened, many in the art world -16- alone violated in these circumstances. the press release noted that this lawsuit had been filed the destroys it. 459 f.3d at 140. we observed that vara does not art. 6bis, sept. 9, 1986, s. treaty doc. no. 99-27, 1161 u.n.t.s. the work and that the artist's personality, as well as the economic and personal nature" that exist "independently of an -45- -34- berne convention, from which this language is concluded that it should "consider whether [the proposed] that was designed to "formalize [the parties'] relationship on this protects works in progress."), modified on other grounds by 840 f. writing that he believed the museum had "responded to [büchel's] http://blog.massmoca.org/2007/09/28/well-remove-training-ground/ with some of the work that had been done by the museum in his people that think they know my art better than i do as well [as] therefore do not address the attribution claim in our vara plaintiff, appellee, museum's assertion that to find a violation of büchel's right of "fixed," works of art that, if completed, would qualify for museum's repeated public exhibitions of "training ground for woods v. bourne co., 60 f.3d 978, 990 (2d cir. 1995). as we have of law in support of its motion for summary judgment, admitted that the public to enter the planned installation." mass moca blog, create a new, derivative artwork. order to enter the exhibit, visitors would have to pass through tarpaulins, "recast" or "transformed" the work that he had hopeless, "training ground" languished in its unfinished state. it display of the unfinished installation would have violated büchel's lipton, rosen & katz, john c. blessington, sara e. yevics, k&l intentional distortion, mutilation, or modification of that work is even after the transfer of the said rights, the author installation itself and on the work's models and plans. planned installation was finished, and after the public exhibition as a whole, represent an original work of authorship." id. büchel work"; (2) "to prevent the use of his or her name as the author of analysis. we thus consider the evidence in the light most the museum sued büchel on may 21, 2007, in the united the united states, however, vara protects only works of "recognized proximity to the tarped "training ground." it might be a fair in rejecting büchel's vara claims, the district court described the invitation to do a show, where you have to make constantly tons of "in a sum of not less than $750 or more than $30,000 as the court copyright act. 742 n.8 (1989); zyware, inc. v. middlegate, inc., no. 96 civ. 2348 absence, büchel felt that certain logistical and organizational his claims under other provisions of the copyright act, which were to have comprised elements of training ground for democracy." states district court for the district of massachusetts. the v. injunctive relief and damages for right-of-integrity claims. endeavors that would otherwise be subject to vara protection. he artistic collaborations depicted in its new exhibition. the protected," and "examine the way in which a work has been modified derivative work includes any work "consisting of editorial behind the cloth coverings and view the unfinished work. see installation ­ rather than an aesthetic modification of the artwork show an unfinished project nor will i show nor (b) any work made for hire waiving any rights to which he would otherwise be entitled under january 2007, tensions had escalated to the point where büchel intentional modifications that would be prejudicial to their honor prevent visitors from seeing it prematurely. training for its visitors, who would be given constructions." house report at 11 (1990), as reprinted in 1990 as provided in 17 u.s.c. § 106a(c)(3), vara specifically9 discussion of vara, mass moca was "entitled to judgment on this report also notes that the rights provided by vara are "analogous asserts that the act's plain language compels such a conclusion, however, we cannot accept the district court's reliance on the components of the project in place under his direct supervision. to house elements such as a jail, museum and voting booths. with similarly, the copyright act provides no thompson and büchel, as to the progress of the project, at 259. nonetheless, the court repeatedly expressed skepticism büchel's instructions when working on "training ground" in his however, the record must be viewed in the light most favorable to § 106a(a)(3)(a), provides that an artist shall have the right "to (right of attribution), the right to object to modifications of the stubborn[n]ess as well [as] against the institution and work with exhibition, made at mass moca, to open on saturday, may 26 ("press (footnotes omitted)); 5 patry on copyright § 16:23 (noting that walls, the two-story house, the guard tower, e.g., monica pa & christopher j. robinson, making lemons out of became clear that büchel would not complete the installation. on imprecision in section (a)(3)(a): u.s.c. § 101. the elements of the installation had been chosen by carter v. helmsley-spear, inc., 71 f.3d 77, 83 (2d cir. 1995) damages, and consider that construction soundly grounded in vara's [t]here was a whole long list of things for which we had their actions represented independent artistic judgment, exercised various other social and political behavior. "other experiences working with artists" to "provide [its] audience not one of the items specifically excluded from vara protection,9 thomas micchelli, christoph büchel training ground for democracy, automatically from the right to prevent conduct. in failing to january 27, 2010 constituted an infringement of copyright." id. dishonors, vilifies, and even ridicules him." id. the copyright act also grants artists the exclusive right büchel had the right to "sell all or part of it." the museum's through not only an injunction, but damages as well"). reprinted in 1990 u.s.s.c.a.n. 6915, 6917). the "rubric of moral5 deteriorating relationship between the artist and the museum category=finearts. aesthetic and design choices by mass moca personnel, including with public esteem, or reputation in the artistic community." 861 f. attached to an email sent by nato thompson. the proposal did not carter similarly considered vara's application to a "very large on the right of integrity and the language on the right of and stop it . . . , as well cinder block walls have to be partly intentional or grossly negligent destruction of that work is a b. büchel's vara claims honor or reputation, and any on his artistic vision by making modifications to the installation how far the museum could appropriately go in light of the remaining a.r.t. co., 125 f.3d 580, 582-83 (7th cir. 1997); henry hansmann, work of art. the museum's december 6, 2006 postponement 106a(a) (providing that rights of attribution and integrity are holding. in phillips, we held that vara did not apply to site- visual art shall have the right "(a) to prevent any intentional "communicated for a period of more than transitory duration." 17 thompson will be identified by his full name. protection under the statute. to conclude otherwise would be10 of the courts - at least where the disposition required by the text supp. at 323. we think this a useful approach, but emphasize that this assertion by mass moca was made to support its19 ground for democracy" would have been a sculpture and therefore a depiction of its intention and its actions. at this juncture, originally set out in his plans and left behind in december 2006, copyrighted work and to prepare derivative works based upon it. 17 not argue that unfinished works are excluded from vara's scope. at 81-83. a work of visual art is defined to include "a painting, publication, or similar publication; (2) shall have the right to prevent the use of additionally, it is undisputed that büchel never signed a document of the plain language. common sense points in the same direction. of-attribution claim, which became moot when mass moca dismantled the owner of a copyrighted work has the exclusive right a claim for injunctive relief to, inter alia, assert or disclaim a conceptual peep show. it doesn't take much effort or imagination -56- parties to collaborate on large-scale artistic works. the museum not, there is an 'author' ­ an artist for whom we shouldn't make those rights by "expressly agree[ing] to such waiver in a written people unfamiliar with his obsessive, history-driven aesthetic an again accused the museum of "sabotage acts" and, in a january 16 of "work of visual art" includes an unfinished version of a proposed contract, which was never signed, would have conferred exhibition, the fabricated work shall be owned outright by you, "attribution" and "integrity," vara "'protects both the reputations assistants from switzerland arrived shortly thereafter. unhappy meaningful manner." nimmer, supra, § 3.03[a]; see also schrock v. that its definitions, unless otherwise provided, control throughout prevent the use of his or her name as the author of the work of to reconstruct a disaster, training to be in protection for works of visual art, is complex. see, e.g., lee v. shall have the right . . .to object to any distortion, [hon. michael a. ponsor, u.s. district judge] 17 u.s.c. § 101 (emphasis added). a work is "fixed" when it has in concluding that büchel has adduced sufficient at mass moca, boston globe (march 28, 2007), available at mass moca opened in 1999 as a center for the creation and charles giuliano, christoph buchel's tarp art at mass moca: crap and the variation from the original must be "sufficient to render they are considered an extension of his personality), he may waive decision to build a cinderblock wall through the cape cod-style curator nato thompson, the museum's director (joseph thompson) george t. conway iii, with whom elaine p. golin, wachtell, journalist reported on observing the unfinished (and still 260. the court found that these "[f]umbled efforts to assist in increasingly unreasonable; the artist felt the museum was visual artists rights act ("vara"), may well serve as "the ultimate artist christoph büchel conceived of an ambitious, football-field- in its expansive facility in north adams, massachusetts, the museum installation. indeed, given the location of "training ground," economic analysis, 26 j. legal stud. 95, 114-116 (1997). büchel's instrument." 17 u.s.c. § 106a(e)(1). also, "[a]ll remedies support the creation of new art, expose [its] visitors to bold act, seeking an injunction that would prevent mass moca from1 structural elements integrated into a whole, through which a disputed art installation, supra. the juxtaposition left johnson determine whether either of the parties deserves judgment as a problems are solved, regarding all elements of the show and until unfinished state of "training ground" to minimize the rights of its strives to "make the whole cloth of art making, presentation and the opportunity to "virtually" change their the berne convention, developed at the instigation of victor5 § 106a(a)(3)(b) (emphasis added). this narrowing further indicates vara. the parties did apparently agree, however, that once the right of attribution nor his right of integrity." 565 f. supp. 2d provide a damages remedy for any type of violation of the moral unfinished "training ground" bedecked in tarpaulins. codifying the right of attribution. see nimmer, supra, at categorically that vara does not apply to unfinished works. in a reply email dated september 24, 2006, büchel did not to rebut the museum's assertion that "the installation's various conclude otherwise would be to say that, even if all had gone well, of a false talisman," both because artists overly rely on it in installation reacted unfavorably to the work in its allegedly _world_unseen/ ("behind doors, a world unseen"). another moca's actions caused prejudice to büchel's honor or reputation. b. factual background a new installation with büchel. the artist visited the north adams the district court ruled that, "[e]ven assuming that the statutory language indicates that congress answered that question here, büchel alleges a campaign of intentional distortion and recognized stature," only an "intentional or grossly negligent rights "exist independent[ly] of the economic rights" granted to think we've got a $160,000 project on our hands in direct costs." torres, 561 f.3d 74,77 (1st cir. 2009) (quotation marks and -49- discovery schedule that included a private viewing by the district supp. 256 (s.d.n.y. 1993), aff'd in part, rev'd in part by 53 f.3d detained and to be tried or to judge, training about büchel's claim that the incomplete "training ground" fell for example, in an email sent on september 11, 2006 to24 ground" over his objections. genuine disputes of material fact modification to his work in which museum personnel repeatedly claims as "devalu[ing] entitlements to economic rights pleaded in negotiations had stalled but work on the installation was ongoing, unsatisfied with the museum's response to his list of else's staff, and, to a significant extent, as büchel's instructions became unavailable. mass moca20 written or oral contract defining the parties' at least one circuit has previously assumed vara's applicability to llp were on brief, for appellee. matter of law on facts that are not disputed.") (quotation marks point during this time, büchel proposed, and the museum agreed to, encourages the author in the arduous act of creation.'" id. at 83 least as "training ground" was originally conceived. it is also described ways in which he felt the museum had knowingly its incomplete state, and then concluding that büchel had failed to special clarity." id. at 258. response, mass moca again argues that its staff was following our analysis of the right-of-integrity tarpaulin claim25 or modification of that work is a decisions. . . . at what point, if at all, does an artist lose his on october 29, 2006, büchel returned to north adams to -23- record precludes an affirmance of the district court on this claim moca violated his exclusive right to display his work publicly. continue, and if we didn't, we would stop. were attending an arts conference in the area. see geoff edgers, village, . . . contain[ing] several major architectural and source of conflict between the parties was the budget, with the mutilation, or modification of th[e] work is a violation" of the 1990 u.s.c.c.a.n. at 6915). before discussing the precise contours house in the installation, despite büchel's expressed desire that thompson. "in summary, the museum felt the artist's directions any additional sabotage acts, as done to rights fosters a "'climate of artistic worth and honor that we thus hold that vara protects the moral rights of -44- rights over the installation, asserting that the discussion among intellectual property issues." pointing out that the show was put forth sufficient evidence to raise a triable issue regarding language is framed as a right "to prevent" conduct, it does not disregarding his instructions and intentionally modifying "training or mutilating changes to his work." id. although these moral büchel] (we build it, and it belongs to you)," and also noted that we do not read the district court's ruling to conclude a pre-existing standing in the artistic community."). would "not negotiate further this matter . . . because almost any over sixty exhibits of visual art, including over 600 works of art the definition of a "work of visual art" for vara scottsdale ins. co., 561 f.3d at 77 (citation omitted). directly or by means of a film, slide, television image, or any 3. exhibiting "training ground" in its unfinished state for the installation. u.s.c.c.a.n. at 6915. in addition, if a work of visual art has nonetheless ruled for the museum in all respects because, even copyright provided by section 106 . . . would more effectively 2007, and by then exhibiting the distorted artwork to the public; [k]now if this is really a great opportunity when you get an vara's passage reflected congress's belief that the art our review of the district court's interpretation of right of integrity, for the simple reason that no completed work of is not absurd - is to enforce it according to its terms." in re -60- the installation over his objections. we affirm the district be, however, that congress's concern was only that a plaintiff not to be applied." negative (what it is not)." carter, 71 f.3d at 84. an unfinished -11- displayed in building 5, the museum's signature exhibition space, mass moca. during this time, he and a partner prepared a basic left north adams in december 2006, "training ground" was "fixed" qualified "work of visual art" under vara. furthermore, vara's irrelevant here, büchel included the following among his list of correspondingly denied the artist's request for injunctive relief visual art in the event of a distortion, also disagree as to whether, in the spring of 2007, while he had failed to prove a likelihood of success on the merits of his of the copyright act; right." it thus allows artists to protect their works against (a) (i) any poster, map, globe, chart, technical destruction of that work is a the artist "by turning his project into a show that misrepresents, noted that büchel, whom he described as having "clear vision" and original. id. büchel argued below, as he does on appeal, that the event ­ which was looking increasingly likely ­ that he did not long as the remnant is not explicitly labeled certain limitations, the author of a work of visual art mutilated versions of his or her work, only the right to prohibit visual and performing art in all stages of production, and context of our vara discussion, there is significant record finished work. these facts negate any claim of joint authorship. of the main conditions are simply not fulfilled" and thompson were merely functional ­ a way of keeping people "out" of the further proceedings consistent with this decision. each party is rights," includes a heading that lists among those rights "to rudler, 576 f.3d 37, 44 (1st cir. 2009) (quotation marks and büchel asserts that, in the months following his 'walk-through sculpture' occupying most, but not all, of [a] some courts, however, have assumed without analysis that the record is replete with similar allegations concerning other (2002)), and "[i]f the meaning of the text is unambiguous our task is prepared over a period of time, the portion of it that has been displayed in building 5, both with and without the yellow mutilation, or other modification of the work museum's alterations create a new work that, as a whole, meets the judgment on the complaint and all counterclaims. on september 21, by themselves the plan has to be changed." büchel expressed under wrap, supra. photographs in the record confirm that the violation of büchel's right of integrity, but shows only that or modify." 56 f. supp. 2d at 260. although the court stated that opinion, recognizing that some of the issues presented in the case been formed, "by or under the authority of the author," in a way 1. vara's protection of an artist's moral rights extends whether) the work is complete and can be shown"); rigamonti, supra, could have expressed its intent less 2. showing "training ground" covered with tarpaulins complaint asserted a single claim for declaratory relief under assembled materials that constituted this unfinished email dated october 28, 2006, he had tried to "move the project would be prejudicial to his or her relation to the museum director), sent büchel's gallery sales3 by the museum, its host, cannot reasonably be deemed an intentional -13- placement of the last element in a complex installation. see, were now moot, but nevertheless wishing to explain its holding and assembled in connection with an exhibit planned with the swiss the mutilation itself"). any right büchel possesses to withhold seen the exhibit twice, once with governor deval patrick. see we thus turn specifically to this claim. the museum instrument. although mass moca's curator, nato thompson (no work. see amy m. adler, against moral rights, 97 cal. l. rev. 263, 268 not surprisingly, based on section 101's general specifically disputes büchel's reading of the february 14 email with the impression that mass moca was "exacting revenge" against the museum to open an "unfinished show in my name, since you are insituform techs., inc. v. am. home assur. co., 566 f.3d 274, 276 a. the parties that congress did not intend a damages remedy to arise (quoting house report at 6, as reprinted in 1990 u.s.c.c.a.n. at prejudice when the alteration already has occurred and damages, of visual art" within the meaning of vara. by it." in response, the museum argues that the yellow tarpaulins mutilation, or other modification of the work your crew . . . . prevented mass moca from showing the incomplete project. installation in progress[.] intentionally modified or distorted "training ground" by covering will discuss both of these in detail below, but note briefly now (1st cir. 2006). of particular relevance to this litigation, the