Visual Artists Rights Act - Right to Display Works That Do Not Yet Exist

The Massachusetts Museum of Contemporary Art sued Swiss artist Christoph Buchel over an installation called Training Ground for Democracy. Buchel is an installation artist who allegedly did not finish an installation piece. The MOCA wanted the right to display the unfinished installation that it had already spent $300,000 for.

In its brief in support of its summary judgment motion, Mass MOCA's counsel Skadden Arps found a couple of cases for the proposition that "VARA most decidedly does not cover works that do not yet exist." citing Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303, 329 (S.D.N.Y. 1994) rev'd on other grounds, 71 F.3d 77 (2d Cir. 1995) cert. denied, 517 1208 (1996) and Flack v. Friends of Queen Catherine Inc., 139 F. Supp.2d 526 (S.D.N.Y. 2001).

To find out whether the court agree with the argument that VARA did not cover non-existent works, I checked the PACER system for the U.S. District Court of Massachusetts. The court's decision was non-existent.

There was a notice of appeal, appealing from "a final order and/or judgment (or alternatively, order denying injunctive relief) announced from the bench on the 21st day of September, 2007 by the Honorable Michael A. Ponsor (1) denying Buchel's motion for summary judgment and request for injunctive relief under . . . . VARA . . . 17 U.S.C. Section 106A, and the Copyright Act Section 101 et seq. and (2) granting plaintiff's relief in its entirety, allowing it to display the work at issue with a disclaimer."

Practice Point: When a judge rules from the bench, counsel can do three things to get a piece of paper from which to appeal. First, order an expedited copy of the transcript from the court reporter. 1. submit the transcript to the judge and ask the judge to "so order" it; 2. submit a proposed order to the judge according to the judge's rules or 3. ask the judge whether the judge will be issuing a written order or decision so that you can appeal it.

Appeals generally require an appealable paper, that is, an existing written decision from a judge from which you appeal. It is analogous to the fixation requirement in copyright law.

Submitting a proposed order is generally the best and most elegant way of proceeding, and if it is not life or death and the court's discussion was lengthy, it will almost certainly help your accuracy to have the transcript. It allows you to get back to your office, clear your mind, and draft something that will make the court's decision clear. It also may be an opportunity to clarify an issue that you were not clear on from the court's oral comments.

I can't wait to see Mass MOCA's display of this non-existent work, to which VARA does not apply, and to see the disclaimer.

Some of the artist's demands in pursuing the work are found at Exhibitionist.

-The artist will not give permission to show an unfinished project nor will the artist allow the museum to show any work in progress, as the museum had suggested in previous discussion related to the postponed opening date.
- Money needs to be raised and in place to finish the project as it was proposed and completed.
- A projected budget for the second round will be sent, if an updated to punch list with very detailed photographs of the installation and the updated list of items that have been organized has been sent.
- The additional monies raised must cover the costs for ALL elements and ALL structural elements, which are clearly defined and which were much discussed. This money would have to cover the cost of the salaries, flights, per diem and housing for the 1st and 2nd round for assistants and the replacement crew and equipment to be hired.
- There is NO negotiation about the scope of the project. It will be realized as proposed.

Sounds like the non-existent Training Ground for Democracy has lessons for us all about the nature of democracy. The above photograph (of the non-existent exhibit) is found on Mass Moca's website. Does a photograph of a non-existent work exist? For more on Buchel, his work and the case, check out Anaba.