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September 24, 2007

D. Mass.: Unfinished Works Aren’t Covered by VARA

Judge Ponsor of the District of Massachussetts has decided Mass MoCA v. Büchel, a case featuring the thrilling combination of an improperly-bisected house, a suspended spider-hole, and a huffy Swiss artiste.

The story, in brief: Christoph Büchel is an installation artist. Mass MoCA, an art museum, commissioned Büchel to create a large installation. Büchel worked with museum staff to physically create the artwork. When the work was nearing completion, Büchel left the project, maintaining that the museum was unwilling to adequately fund the project. (Incidentally, the piece itself seems pretty brilliant, if a little overtly polemical; it’s called “Training Ground for Democracy,” and presents a manufactured vision of American life featuring the above-mentioned house, through which a cinder-block wall was constructed, apparently in the wrong place, and the spider-hole, which was supended in the air, apparently against the artist’s wishes.) Museum staff continued their work for a while, based on their best guess as to what Büchel would have wanted — at least until relations between Büchel and the museum turned permanently icy.

So the museum was left with a garden-variety breach-of-contract case — and with a hangar-sized gallery full of an almost-finished installation. What to do with it?

The museum wanted to exhibit the unfinished work as an unfinished work, explaining the circumstances of its creation, but not calling it a work by Christoph Büchel. The artist wanted it destroyed, and wanted damages for the museum’s “mutilation” of the work (by working on it after he left the project).

The key legal issue here is the interpretation of the Visual Artists’ Rights Act, a statute situated within the Copyright Act but having nothing to do with copying. VARA protects certain one-of-a-kind or limited-edition “works of visual art” from misattribution, intentional mutilation, or (if the work is one of “recognized stature”) intentional destruction.

So, interesting questions arise: is it possible to “mutilate” an artwork that isn’t even finished yet? Is it misattribution to show an unfinished, unattributed artwork, when many in the audience already know who the artist was? Is a museum staffer “mutilating” an artwork when he modifies it under the artist’s direction? When he modifies it against the artist’s wishes, but from the artist’s own drawings? When he modifies it without direction from the artist but believing, albeit mistakenly, that he is realizing the artist’s vision?

These were the issues before the court in Mass MoCA v. Büchel. Büchel’s brief is here; the museum’s brief is here. They make for interesting (if occasionally needlessly vitriol-filled) reading.

Sadly, there’s no written opinion — the judge ruled from the bench on Friday. But we know from the notice of appeal to the First Circuit that the judge held in favor of Mass MoCA, holding the Visual Artists’ Rights Act (and, apparently, the Copyright Act) inapplicable to Büchel’s installation. It’s too bad the details are so sketchy. I’d really like to know how the judge reached the conclusion that the Copyright Act, which covers any expressive, tangible work, didn’t cover a warehouse-sized sculpture, which — whatever else it is — is certainly tangible and certainly expressive.

I find it easier to swallow the idea that the VARA might not apply. The statutory language just doesn’t tell us what to do about unfinished works. Büchel tries to import a concept from general copyright law: because a work is copyrighted if it is fixed in a tangible medium of expression, whether or not it is finished, Büchel argues that the VARA applies to all works of visual art, whether or not they are finished. But, as the museum argues in its brief, this leads to absurd results. The VARA rights are waivable only in writing, not orally, so if VARA applies to unfinished art works, it’s hard to see why an assistant who modifies the work at the artist’s direction wouldn’t be liable. A reading of VARA that causes it to apply only to art works that have been declared finished by the artist would seem to fit with legislative intent; after all, it requires that limited-edition works to be signed by the artist, something that’s generally done to signify that a work is finished.

While I don’t think Büchel ought to be able to use copyright law (or a copyright-like law like VARA) to prohibit the exhibition of the unfinished work, I do think that the museum is making a mistake. As many have pointed out, norms are more important than laws in the art world, and by pressing the legal question, the museum may be disregarding the moral one.

At any rate, I expect a fascinating opinion out of the First Circuit. Continuing coverage is likely to be found on The Art Law Blog, written by Donn Zaretsky, who was responsible at least in part for Büchel’s excellent (if unsuccessful) summary judgment brief.

September 5, 2007

10th Cir.: Shrinking the Public Domain Implicates the First Amendment

Yesterday, a unanimous three-judge panel of the United States Court of Appeals for the Tenth Circuit awarded a major victory to the public domain in Golan v. Gonzales.

In 2003, the Supreme Court ruled in Eldred v. Ashcroft that a copyright law could be reviewed under the First Amendment as a restriction on speech only if it constitued a change to the “traditional contours of copyright protection.” Yesterday, the Tenth Circuit ruled that the permanence of public-domain status is such a “traditional contour” — that is, when something enters the public domain, we expect it to stay there. Accordingly, the 1994 Uruguay Round Agreements Act (URAA), which granted “restored” copyright protection to a large number of works in the public domain that had been created outside the United States, was a change to that traditional contour, and required review as a restriction on speech.

The court reached its decision by careful attention to history. The government’s best argument was that Congress had pulled works from the public domain several times in American history, so no “traditional contour” had been changed. The court conducted a detailed analysis of each of those (rather obscure) historical situations, such as wartime copyright laws enacted in 1919 and 1941 which excused authors’ inability to comply with copyright formalities due to wartime shortages and disruptions. The court found that each was by definition an unusual event prompted by exigent circumstances, and that such temporary enactments did not set copyright’s “traditional contours.” The court took an even more scholarly approach to the question of whether the 1790 Copyright Act, which was the young nation’s first copyright statute, removed works from the public domain in certain states which did not have copyright laws up until that time. Reviewing a number of primary sources and law review articles, the court found that it was “probably not just unclear but also unknowable” whether the first Congress thought it was removing works from the public domain due to the scarcity of historical evidence.

The Tenth Circuit remanded the case to the district court. Its instructions on remand are a little curious. It asks the district court to determine whether the URAA is a content-based or a content-neutral restriction on speech. I’m not sure why, for two reasons. [UPDATE: I want to emphasize that I think the court was right to reach this analysis, since it found that the URAA was subject to First Amendment scrutiny. I'm just not sure why it needed to remand on these grounds rather than deciding that the regulation was content-based, anouncing the proper standard, then remanding.] First, whether a law is content-based or content-neutral ought to be a pure question of law; there aren’t any facts to find, so I’m not sure why the district court gets first crack. Second, I can’t imagine a way to find that any copyright law is content-neutral. If I stand on a soapbox in the middle of town and recite a certain poem that begins “Shall I compare thee to a summer’s day?,” the law does not punish me. If I stand on the same soapbox and recite — at the same volume, in the same tone of voice — a different poem that begins “Oh baby baby, how was I supposed to know?,” the law punishes me. That’s the very definition of a content-based restriction. We’ll see what the district court does.

Or maybe we won’t. The government can petition for certiorari before the case gets remanded. Because of the Ninth Circuit’s decision in Kahle v. Gonzales, there’s now a circuit split regarding how courts decide when a law has changed copyright’s “traditional contours,” making Supreme Court review more likely. A chance for the Court to revisit its “traditional contours” comment could be a great boon to culture, or might shut off all future opportunities to place First Amendment limits on copyright laws.

This ruling is an extremely satisfying development for me personally. During the summer of 2004, I worked on the Golan case with Larry Lessig, Elizabeth Rader, Colette Vogele, and Chris Sprigman. I had the chance to do some of the factual, legal, and historical research that supported the plaintiffs’ claims. I’m proud of the work the team has done since the case was filed back in 2001, and hope that this victory is only the first.

Disclaimer Haiku:
West wind seems to say,
"This is not legal advice;
I'm not your lawyer."

(And if you're a client with whom I have a preexisting attorney-client relationship, this still isn't legal advice.)

In case you're wondering, this blog is also not intended as advertising, as a representation of anything but my personal opinion, or as an offer of representation.

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