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Case: 08-2199 Document: 00115885751 Page: 1 Date Filed: 04/22/2009 Entry ID: 5336823

No. 08-2199

d
IN THE

United States Court of Appeals


FOR THE FIRST CIRCUIT

MASSACHUSETTS MUSEUM OF CONTEMPORARY ART FOUNDATION, INC.,


Plaintiff-Appellee,
—v.—

CHRISTOPH BÜCHEL,
Defendant-Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF MASSACHUSETTS

REPLY BRIEF FOR DEFENDANT-APPELLANT


CHRISTOPH BÜCHEL

George T. Conway III (No. 88538)


Elaine P. Golin (No. 124151)
WACHTELL, LIPTON, ROSEN & KATZ
51 West 52nd Street
New York, New York 10019
(212) 403-1000
John C. Blessington (No. 66967)
Sara E. Yevics (No. 1132898)
Of Counsel: K&L GATES LLP
Elena M. Paul (No. 1135536) State Street Financial Center
Sergio Muñoz Sarmiento (No. 1135565) One Lincoln Street
VOLUNTEER LAWYERS FOR THE ARTS Boston, Massachusetts 02111
1 East 53rd Street, 6th Floor (617) 261-3100
New York, New York 10022 Attorneys for Defendant-Appellant
(212) 319-2787 Christoph Büchel
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TABLE OF CONTENTS

Page

Preliminary Statement .............................................................................................. 1

Argument .................................................................................................................. 1

POINT I

THE DISMISSAL OF BÜCHEL’s VARA DAMAGES


CLAIM WAS ERROR ................................................................................... 1

A. VARA fully applies to Training Ground


for Democracy...................................................................................... 1

B. MASS MoCA distorted and modified Training


Ground in a manner that was prejudicial to
Büchel’s honor or reputation................................................................ 6

1. “Plan B.” .................................................................................... 7

2. The musuem’s display of the unfinished


work ......................................................................................... 12

3. The museum’s public attribution of the


unfinished work to Büchel, and the
harm to Büchel’s honor or reputation. ..................................... 18

POINT II

THE DISMISSAL OF BÜCHEL’S COPYRIGHT ACT


CLAIMS WAS ERROR .............................................................................. 22

Conclusion .............................................................................................................. 25
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TABLE OF AUTHORITIES

Cases Page

Davis v. Sears, Roebuck and Co.,


708 F.2d 862 (1st Cir. 1983) ...................................................................13-14

Feist Publ’ns, Inc. v. Rural Tel. Serv.


Co., Inc., 499 U.S. 340 (1991)...................................................................... 24

Flack v. Friends of Queen Catherine, Inc.,


139 F. Supp. 2d 526 (S.D.N.Y. 2001) ............................................................ 4

Freeland v. Enodis Corp., 540 F.3d 72


(7th Cir. 2008) .............................................................................................. 13

Greenwich Workshop, Inc. v. Timber


Creations, Inc., 932 F. Supp. 1210
(C.D. Cal. 1996) ........................................................................................... 24

Mirage Editions, Inc. v. Albuquerque


A.R.T. Co., 856 F.2d 1341
(9th Cir. 1988) .............................................................................................. 24

Playboy Enters., Inc. v. Dumas,


831 F. Supp. 295 (S.D.N.Y. 1993) ................................................................. 3

Thomson v. Larson, 147 F.3d 195


(2d Cir. 1998) ............................................................................................. 24n

United States v. Maravilla,


907 F.2d 216 (1st Cir. 1990) .......................................................................... 3

Welch v. Ciampa, 542 F.3d 927 (1st Cir. 2008) ..................................................... 13

Statutes

17 U.S.C. § 101 ............................................................................................. 2, 3, 4, 5

17 U.S.C. § 106A ................................................................................................ 6, 21

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17 U.S.C. § 109....................................................................................................... 22

Other Authorities

FED. R. EVID. 103(d) ............................................................................................. 14n

Ginsburg, Jane C., Copyright in the 101st Congress:


Commentary on the Visual Artists Rights Act
and the Architectural Works Copyright Pro-
tection Act of 1990, 14 COLUM.-VLA J.L &
ARTS 477 (1990)............................................................................................. 5

H.R. REP. NO. 101-514 (1990),


reprinted in 1990 U.S.C.C.A.N. 6915........................................................ 4, 5

MOORE, JAMES WM. ET AL., MOORE’S FEDERAL


PRACTICE (3d ed. 2009) ........................................................................ 13, 14n

WRIGHT, CHARLES A., MILLER, ARTHUR R., & KANE,


MARY K., FEDERAL PRACTICE AND PROCEDURE
(3d ed. 1998)................................................................................................. 13

iii
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PRELIMINARY STATEMENT

MASS MoCA makes no serious effort to defend the district court’s read-

ing of VARA. Instead, it argues that there was no evidence in the expedited dis-
covery record to support Büchel’s claims. In doing so, the museum simply ignores

the evidence that it does not like—including extensive evidence from its from its

own files, and testimony from its own director. As is shown below, that evidence
more than suffices to establish—in fact, it conclusively establishes—that the mu-

seum violated the statute. At a minimum, the evidence warrants a trial. Either

way, the district court’s grant of summary judgment must be reversed.

ARGUMENT

I. THE DISMISSAL OF BÜCHEL’S VARA DAMAGES CLAIM WAS


ERROR.

A. VARA fully applies to Training


Ground for Democracy.

MASS MoCA only half-heartedly defends the district court’s repeated


suggestions that Training Ground for Democracy was not protected by VARA. It

asserts that the district court did not so rule: “the District Court expressly assumed

that VARA applied to the unfinished Planned Installation, and on that basis held

that MASS MoCA had not violated any right granted by VARA.” MM Br. 36.1

1
Citations to MASS MoCA’s brief take the form “MM Br. __”; citations to
Büchel’s opening brief, “Büchel Br. __”; to the addendum to Büchel’s opening
brief, “Add. __”; and to the Joint Appendix, “A___.”
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This ignores, however, the internal inconsistencies of the district court’s opinion.

For although it is true that the district court did say, near the end of its opinion, that

it was “[a]ssuming the statute does apply,” Add. 50, 565 F. Supp. 2d at 259, the

opinion’s very next paragraph assumed the applicability of the statute away. Thus,

in addressing MASS MoCA’s claim for declaratory relief, the district court held:

[N]othing in MASS MoCA’s planned display of the unfinished instal-


lation would have violated Büchel’s right of integrity, for the simple
reason that no completed work of art ever existed on these facts for
the museum to distort, mutilate, or modify. …

Since he would have suffered a violation of no right recognized by


this statute, this messy situation simply fell outside the boundary of
VARA and, a fortiori, outside the more general provisions of the
Copyright Act.

Add. 51-52, 565 F. Supp. 2d at 260 (emphasis added). The court adopted this
holding in dismissing VARA’s damages counterclaim, Add. 51-52, 565 F. Supp.

2d 260-61—and thus held that when “no completed work ever existed,” the “situa-

tion simply [falls] outside the boundary of VARA.”

That was error, and MASS MoCA does not seriously attempt to show

otherwise. Its contentions that Büchel is improperly “attempt[ing] to import …

definitions in the Copyright Act into VARA,” and that “[n]owhere in VARA are

unfinished works mentioned,” MM Br. 37 n.110, 38, are simply disingenuous. The

meaning of “work of visual art” is set forth in 17 U.S.C. § 101, the definition sec-

tion for the Copyright Act as a whole. Section 101 expressly provides that its defi-

nitions, unless otherwise provided, control throughout “this title,” Title 17, which

2
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of course includes VARA. As a result, VARA must be read in accordance with all

of the definitions in Section 101, and all of the definitions must be read consis-

tently with one another. To do otherwise would contravene the language of the

statute, and would be “contrary to the rule that provisions of a single act should be

construed in as harmonious a fashion as possible.” United States v. Maravilla, 907

F.2d 216, 231 (1st Cir. 1990) (citation and internal quotation marks omitted).

In fact, no other approach to the statute is possible, because the pertinent


definitions in Section 101 are inextricably intertwined. In particular, both the

phrase “work of visual art” and its Section 101 definition contain the word “work,”

and thus make clear that “work of visual art” is a subset of “work.” And Section

101 establishes when a “work” is “created,” which is in turn based upon when the

“work” is said to be “fixed,” another term defined in Section 101.2 It accordingly

follows that “work of visual art,” as a kind of “work,” is “created” when it is

“fixed”; and that “where a work is prepared over a period of time, the portion of it

that is fixed at any particular time constitutes the work as of that time.” 17 U.S.C.
§ 101 (emphasis added). The statute is thus clear that “the [Copyright] Act pro-

tects works in progress,” Playboy Enters. Inc. v. Dumas, 831 F. Supp. 295, 314

(S.D.N.Y. 1993)—and that such “‘preliminary’ work … is unquestionably covered

2
Not only that, Section 101’s definition of “work of visual art” uses the word
“copies,” whose definition in turn uses the words “fixed” and “work.” The defini-
tions of “fixed” and “created” themselves both use the words “work” and “copy.”
This circularity confirms that the definitions must all be read in light of one an-
other.

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by VARA” as well. Flack v. Friends of Queen Catherine Inc., 139 F. Supp. 2d

526, 534 (S.D.N.Y. 2001).3

Nor is there any merit to MASS MoCA’s suggestion that “collaborative


artworks … are subject to more circumscribed protection under VARA.” MM Br.

36. The statute says no such thing, and the snippets of legislative history offered

by MASS MoCA do not establish that Congress intended any such thing, either.
What Congress did was to expressly provide that “[a] work of visual art does not

include … any … motion picture or other audiovisual work.” 17 U.S.C. § 101.

The legislative history explains that Congress excluded such works from VARA

for a variety of reasons—such as the fact that such audiovisual works “are gener-

ally works-made-for-hire,” “are generally produced and exploited in multiple cop-

ies,” and the fact that “[t]hey are leased for theatrical and non-theatrical exhibition,

licensed for broadcasting, shown on airplanes, and sold as videocassettes.” H.R.

REP. NO. 101-514, at 9, reprinted in 1990 U.S.C.C.A.N. at 6919. “Each [such]

market [for motion pictures and other audiovisual work] has its own commercial
and technological configuration that affects how the work will appear when pre-

sented.” Id.

“These critical factual and legal differences in the way … audiovisual

works are created and disseminated,” and not just the fact that motion pictures in-

volve “a collaborative effort” of numerous artists, led Congress to conclude that

3
See also Büchel Op. Br. 41-42 & n.4, which sets forth additional authority on
the point, and explains how MASS MoCA misreads Flack.

4
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recognizing moral rights in the film industry would “conflict with the distribution

and marketing of these works.” Id. (emphasis added). And so Congress decided to

treat “the claims of [film] artists separately,” by striking audiovisual work from

VARA’s scope, a step that “facilitated the progress of the legislation.” Id. As Pro-

fessor Ginsburg has explained, the concept of moral rights “inspire[d] trepidation

among major exploiter groups, such as periodical publishers and motion picture

producers.” Jane C. Ginsburg, Copyright in the 101st Congress: Commentary on

the Visual Artists Rights Act and the Architectural Works Copyright Protection Act

of 1990, 14 COLUM.-VLA J.L. & ARTS 477, 479 (1990). Congress defined “work

of visual art” as it did in order “to reassure large exploiters … that they need not

fear moral rights claims from artists creating works for [them],” and “to limit the

law’s coverage to objects of ‘Art,’ rather than of mass production.” Id. at 480.

Congress thus limited “the subject matter of [VARA to] essentially works of paint-

ing and sculpture, [which] present[] the strongest, and most distinct, claim for

moral rights protection.” Id. at 479.

None of this legislative history diminishes the applicability of the statute

here. It is not disputed that Training Ground for Democracy was a work of “sculp-

ture, existing in a single copy,” as Section 101’s definition of “work of visual art”
provides,4 and that the work did not fall within any of the specific exclusions set
4
MASS MoCA does not deny here, and did not deny below, that Training
Ground was a work of sculpture. Nor could it: the museum’s director contem-
plated and understood, for example, that the installation would consist of “many
great pieces of sculpture” that would have “great resonance as stand-alone works
of art” even after the exhibition was completed and taken apart. A691.

5
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forth in that definition. And, as shown above, the fact that the work was unfin-

ished did not render the statute inapplicable, either. In short, given that there is no

applicable “explicitly identified exception” to VARA, there is no basis for a judi-

cial “grafting” of an “exception to the statutory protections,” as the district court

seemingly suggested might be done in this case. Add. 43, 565 F. Supp. 2d at 256.

Like all statutes, VARA must be construed by its express terms, and those terms

unquestionably apply here.

B. MASS MoCA distorted and modi-


fied Training Ground in a manner
that was prejudicial to Büchel’s
honor or reputation.

Accordingly, the dispositive question, under either Section 106A(a)(2) or


(3), is whether MASS MoCA engaged in a “distortion, mutilation, or other modifi-

cation of the work which would be prejudicial to [Büchel’s] honor or reputation.”

17 U.S.C. § 106A(a)(2), (3). That is, of course, a question of fact. MASS MoCA
answers the question essentially by ignoring the evidence it does not like—

including documents from its own files, and testimony from its own director. This

it cannot do. The summary judgment for MASS MoCA must be reversed if there

is any evidence from which a reasonable fact-finder could return a verdict for

Büchel. And here, contrary to MASS MoCA’s contentions, there is plenty of evi-

dence to support such a verdict—indeed, enough to preclude a reasonable fact-

finder from reaching a verdict for MASS MoCA.

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1. “Plan B.”

To begin with, MASS MoCA contends that it cannot be found to have

distorted or modified Büchel’s work because it was doing nothing more than “im-
plementing the instructions Büchel had provided before his departure until those

instructions were exhausted.” MM Br. 2; accord id. at 40-41. The museum was

mechanically going through Büchel’s punch list, the argument goes, so that the in-
stallation would be ready for further work upon Büchel’s anticipated return.

The record is undisputed, however, that by February 2007, this was not
so. It was by then, as MASS MoCA admits, that museum and artist had reached an

“impasse.” Id. at 21; see also, e.g., A757-62, 1558.5 In a January 31, 2007 email,
for example, museum director Joseph Thompson told a major donor that there was

only a “small chance” that Büchel would “return to North Adams.” A725. In a

5
After January 6, 2007, Büchel did not give instructions or approval for any ad-
ditional work on the installation, A926, 1558, and by late January, he had emphati-
cally made clear to MASS MoCA that work on the installation could not continue,
e.g., A723 (“we cannot continue”), A764 (“we cannot continue”), A1560, 1568.
Even before then, Büchel had repeatedly complained to the museum that the
work it had done after his departure in December 2006 had not followed his in-
structions. E.g., A722 (Büchel email to Joseph Thompson, January 29, 2007: “I
will not go extensively into the details regarding the punch list and the photos: just
let me say this again, there is a lot of stuff not being done according to my instruc-
tions”), A1560. And even when Büchel was resident in North Adams in October,
November, and December 2006, he complained that museum personnel were dis-
regarding his instructions and making unauthorized changes to his work. E.g.,
A1442-43 (Büchel email to Joseph Thompson, December 14, 2006: “I don’t know
why in this and many cases [museum] people just do stuff without checking back if
[it’s] okay to do [something], when they think by themselve[s] the plan has to be
changed. . . . I am supposed to be the artist”), A1560; see also Büchel Br. 18-19.

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February 14, 2007 email, production manager Dante Birch told Thompson that

Büchel “has drawn a line in the sand and I don’t think he will budge on it.” A774.

The museum did not believe that Büchel was likely ever to come back.

Yet it was precisely at this point that the museum decided to ramp up

“Plan B”—the plan to create a brand new show out of Büchel’s work, and to do so

without him.6 The idea behind “the opening of the show,” as Birch put it, was to
send a “clear ‘game over’ message” to Büchel. A774. Joseph Thompson ex-

plained the plan to the large donor on January 31: “I think there is a high likeli-

hood we will open the exhibition at its current 85% level of completion. [Büchel]

will disavow the exhibition, and he won’t go silently into the night.” A725.

“[T]he game has changed,” Thompson explained to the donor, and “there will be

controversy surrounding my decision to show the work as a failed work-in-

progress, if indeed it gets to that.” Id. The new show “will feel like a sort of ar-

cheological pre-enactment, it will be fascinating, and the sheer scale and weight of

the enterprise will speak for itself … though it will not be a Christoph Büchel work
of art.” Id. (emphasis added).

This was Plan B. The new show would not be a Büchel work, because the

museum was modifying Büchel’s work—and no longer simply trying to follow the

artist’s instructions. It was extrapolating, guessing, filling in holes, indiscrimi-

nately stacking and piling objects the museum thought Büchel might have used.

6
See A776 (February 14, 2007 Joseph Thompson email, discussing “go[ing] into
super production mode” “[o]nce we really commit to plan B”).

8
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Again, admissions from MASS MoCA’s files and its own director’s testimony es-

tablishes this. In particular, the February 14, 2007 email chain that MASS MoCA

now astonishingly claims reflected “a plan for curtailing MASS MoCA’s future

work,” MM Br. 27, in fact establishes repeatedly how the museum went beyond

Christoph’s instructions. Thompson directed, for example: “Bring whatever pads,

sleeping bags, cots, water bottles and other items we’re 80% sure he would have

used, and stack [them] around as if they are awaiting Christoph to put them in

place.” A776 (emphasis added). “For all the sea containers, let’s dust them out,

and put the objects that we know go in them … again, not attempting to array them

as CB might, but just stacking them in there.” Id. (emphasis added). And do

“[a]nything else that Dante and Nato feel is known with 80% certainty.” Id. (em-

phasis added); see also A1559-61.

The result was indisputably a modification of Büchel’s unfinished work,


not an attempt to carry it out. “I have no idea whether he would ultimately approve

it or not,” Joseph Thompson testified as to one modification. A511 (emphasis


added). Thompson acknowledged that it “was always difficult” to “read Chris-

toph’s mind,” A506, and that the museum’s continued work reflected “our best

reasonable guess as to what materials [Büchel] would ultimately draw from.”


A511 (emphasis added). Birch, in the February 14 email chain, recognized that in

the unlikely event that Büchel ever returned, Büchel would not approve of the

work, and that, indeed, as to at least one item (the bomb carousel), the museum
was deliberately ignoring Büchel’s instructions: “If he turns around and says he’ll

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come back then there will be the issue of redoing what we’ve already done and that

may be difficult. He already said to take down the bomb carousel.” A774 (em-

phasis added). In short, as Birch put it in the same email chain, the museum wasn’t

simply presenting “an unfinished show” by “allow[ing] [it] to appear unfinished &

unpolished,” it was “do[ing] a ‘MASS MoCA interprets Buchel’ show.” A775

(emphasis added). The “intellectual property issues” raised by doing such a show

greatly disturbed Birch: “When they come to review it, the question will be ‘what

is it?’ .… and if it’s reviewed as a Buchel, we’re in deep [expletive deleted].”

A774 (ellipsis in original).

The result was that MASS MoCA made modifications of Training


Ground that, as Birch predicted, Büchel did not approve. Büchel’s affidavit and

deposition testimony identify numerous ways in which the museum made changes

to the installation without his permission and contrary to his instructions. These

include, among other things, the construction of cinder block walls in a manner

contrary to Büchel’s expressed intent and in disregard of his specific instruction


that the walls not be constructed until his return, A927-28; the bomb carousel,

which MASS MoCA placed incorrectly and failed to take down in accordance with

Büchel’s express instruction, A929; see A774; the “Saddam compound” or “spi-
derhole,” which was altered without Büchel’s authorization and was rigged, hung,

and detailed in a manner that Büchel did not approve, A929-30; the cinema, which

was not constructed in accordance with the artist’s instructions, A930-32; the
house, to which the museum added entrances in defiance of Büchel’s instructions,

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A932; a police car and French barriers, which the museum, without the artist’s ap-

proval or instructions, placed in the wrong part of the installation, A932; the mo-

bile home, to which the museum added entrances that were not approved or in-

tended by Büchel, A933; elimination of a “dive bar,” A934; unauthorized detailing

throughout the work, A933; and, of course, the addition of the yellow tarps, A934.

In short, the evidence—especially MASS MoCA’s own words—


establishes conclusively that the museum was modifying and distorting Büchel’s

work. It also disposes of MASS MoCA’s hyperbolic assertion that, somehow,

Büchel is “contend[ing] that VARA precludes artists from working with third per-

sons,” and that Büchel is arguing that “no one other than the artist himself (or her-

self) may ever perform any work in fabricating visual art unless that specific task

has been authorized by the artist in a signed” VARA waiver. MM Br. 43-44. This

is not a case where a worker made an innocent mistake in following an artist’s di-

rections, and where the innocent mistake was never intended to be displayed, and

was not displayed, in a manner that could affect the artist’s honor and reputation.
This is a case where a museum, as an institution, intentionally chose to go beyond

the artist’s direction, intentionally chose to create a modified work, a work it knew

the artist would not approve, and did so in order to show it to influential people and
to the public, when everyone knew (thanks to the publicity generated by the mu-

seum) that work had been a project of that artist. Contrary to MASS MoCA’s con-

tention, finding liability here would hardly involve VARA in “regulat[ing] artists’
relations with assistants and other persons who assist artists in carrying out their

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designs,” MM Br. 44; rather, it would fulfill the fundamental purpose of the stat-

ute.

2. The museum’s display of the un-


finished work.

MASS MoCA’s other arguments also simply ignore the evidence it

doesn’t like. In particular, the museum completely denies that it displayed Train-
ing Ground for Democracy at all. MM Br. 47-48, 51 n.131. The basis for this de-

nial is an evidentiary objection. The museum claims that “there is simply no ad-

missible evidence in the record that anyone actually ‘peeked’ behind the tarpau-
lins” during the yellow tarp show, and dismisses as “obvious hearsay” the evidence

offered by Büchel that MASS MoCA allowed visitors to view the installation in an

uncovered state. Id. at 48, 51 n.131 (emphasis added and omitted in part).

This evidentiary objection comes too late, and in the wrong court. Before
the district court, MASS MoCA made absolutely no objection whatsoever to the

admissibility of any of the materials proffered on the summary judgment cross-

motions by Büchel. E.g., A1379 (no evidentiary objection to Boston Globe article

in MASS MoCA Local Rule 56.1 response). (Indeed, given that MASS MoCA—

utterly unnecessarily7—had insisted upon and obtained an extremely expedited

schedule that restricted the parties to one deposition per side, A49, 248, neither

7
Unnecessarily, of course, because MASS MoCA had demanded expedition to
obtain a declaration to allow it to do something that, just days after it obtained the
expedited declaration that it sought, it decided it really did not wish to do—
namely, to show the unfinished work in an uncovered state. MM Br. 31; Büchel
Br. 8 & n.2.

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party made any evidentiary objections, and both parties necessarily relied upon

hearsay; MASS MoCA itself presented extensive hearsay evidence, including a

large number of unauthenticated documents, and, in particular, a number of news

clippings and printouts from the Internet. E.g., A794-98, 855-60, 862-67, A1418-

19, 1421-22.)

Any objection is therefore waived. E.g., Welch v. Ciampa, 542 F.3d 927,
943 n.9 (1st Cir. 2008) (on appeal of summary judgment, holding that hearsay ob-

jection to “consultant’s report” was “waived” because party “did not raise this ob-

jection before the district court”); Freeland v. Enodis Corp., 540 F.3d 721, 738

(7th Cir. 2008) (“An evidentiary objection not raised in the district court is waived

on appeal … and this rule holds as true for a summary judgment proceeding as it

does for a trial”; citation and internal quotation marks omitted); 10A CHARLES A.

WRIGHT, ARTHUR R. MILLER & MARY K. KANE, FEDERAL PRACTICE AND

PROCEDURE § 2722, at 384-85 (3d ed. 1998) (“As is true of other material intro-

duced on a summary judgment motion, uncertified or otherwise inadmissible


documents may be considered by the court if not challenged. The objection must

be timely or it will be deemed to have been waived.”); 11 JAMES WM. MOORE ET

AL., MOORE’S FEDERAL PRACTICE § 56.14[2][c], at 56-223 (3d ed. 2009) (“An evi-
dentiary objection, not raised in the district court, is waived on appeal. This rule is

equally applicable to a summary judgment motion as it is for a trial.”).

And, as this court has held, “[o]nly to prevent a gross miscarriage of jus-
tice will we depart from the application of this [waiver] rule.” Davis v. Sears,

13
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Roebuck and Co., 708 F.2d 862, 864 (1st Cir. 1983).8 As a result, the record in this

case is undisputed that viewers of “Made at MASS MoCA” could easily—and in

fact did—look behind the tarps to see Büchel’s unfinished, modified, and distorted

work. The evidence thus establishes, as one observer reported, that the tarps did

not “cover much”:

The tarps are a bright, incongruously cheerful yellow stretched tight


across gunmetal-gray stanchions. They don’t reach the floor, and they
rise only about two feet above eye level, so they don’t cover much.
You can easily crouch down to slip your head underneath or peek
through the slits between the vinyl sheets. Behind the passageway
formed by the tarps, the monumental elements of the installation rise
all around you, plain as day—the cinderblock walls, the two-story
house, the guard tower, the trailers, the carnival ride, all compacted
together in a claustrophobic, politically surreal borough of hell,
George Orwell by way of David Lynch.

A1544 (emphasis added), 1571. The Boston Globe similarly told its Sunday read-

ers:

As you follow a path between the fencing that leads through the unfin-
ished installation, you can see through openings below the tarps parts
of cars, trucks, trailers, storage containers, and other objects close to
the ground. And you can see rising above the fence the second story
of a white clapboard house, shipping containers stacked 20 or more
feet high, cinder-block walls topped by coils of barbed wire, a guard
tower, and the upper part of an amusement-park carousel. At one end,
there’s an almost completely reconstructed interior of an old movie
theater.

8
Accord, e.g., 11 MOORE et al., MOORE’S FEDERAL PRACTICE § 56.14[2][c], at
56-224 (“the ‘plain error’ exception applies only in ‘exceptional circumstances
where an error affects a party’s substantial rights and results in a miscarriage of
justice’”; citing FED. R. EVID. 103(d)).

14
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A1127 (emphasis added); see also MM Br. 48 (admitting that the tarps allowed

visitors to see “the top of a house, a shipping container or two and the top of a car-

ousel”).

The evidence thus demonstrates how “Mass MoCA is hiding an elephant

behind a napkin,” how “[i]t doesn’t take much effort or imagination to see most of

the work,” how the exhibit was really a “peep show” and a “wink wink wrap
show,” how “[t]he 48″ tarps cover very little of Buchel’s installation” and provide

“very little visual obstruction,” how “those able to peek behind the yellow tarp in

Building 5 will find [Büchel’s] war-torn suburb, reproduced on a one-to-one

scale,” and how “the tarp coverings serve not to occult Büchel’s unfinished work

of art, but rather to evoke and provoke a voyeuristic desire on the part of the tour-

ing audience.” A862, 1488, 1534.

Visitors well understood that the unfinished installation was the real
show; as one observer put it, there wasn’t much at all to the “exhibit” that visitors

reached at the end of their long walk through Büchel’s distorted work:

The makeshift exhibit, Made at MASS MoCA, is nothing more than a


self-serving trifle of wall texts and documentary photographs implic-
itly touting the cooperative relationships the museum enjoyed with
artists like Robert Rauschenberg, Tim Hawkinson and Cai Guo-Qiang
while constructing their epic-scaled installations.

A1540; accord A1127 (Boston Globe critic, describing “a slick, disingenous, egre-

giously self-serving photo and text display called ‘Made at Mass MoCA’ in a small

gallery at the end of the Buchel hall”), A1588 (New York Times critic, describing

15
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“‘Made at Mass MoCA’ [as] “a self-serving, slapped-together display of photo-

graphs of previous installations [that] accomplishes little but to suggest the fre-

quent vacuity of these projects and underscore the possibility that the Büchel was

too big a reach for the museum”).

Beyond this, the evidence is equally undisputed that, after the impasse

was reached with Büchel, MASS MoCA invited and allowed some visitors—
including some very prominent people—to view the unfinished, distorted work in

an uncovered state. In his January 16, 2007 email to Joseph Thompson, Büchel

specifically refused to give the museum permission to show the installation to any-

one in an unfinished state:

I will not give you permission to show an unfinished project nor will I
show nor let you show any work in progress, as you proposed already
earlier.

A705 (emphasis added). Büchel strenuously repeated his objections when pub-

lished reports made clear that the museum was giving tours of the uncovered, un-

finished work. A811, 829.9 But as the Boston Globe reported, Büchel’s objections

9
MASS MoCA seems to imply that, during his stay in North Adams, Büchel im-
pliedly had given blanket permission for display of the unfinished work. See MM
Br. 14. That is not so. The December 17 email quoted by the museum (id.) refers
to a visit by a MASS MoCA board member, Carmela Haklisch and her daughter,
Katherine, who were introduced as such to Büchel. See A683, 1570; see also
http://www.massmoca.org/leadership.php (listing board members). Occasionally
during Büchel’s stay in North Adams, Joseph Thompson came into Building 5 with
unannounced “visitors” who were introduced as friends of Thompson’s, and
Büchel, out of politeness, briefly chatted with them. A1570. These were not pub-
lic tours like those the museum gave to generate publicity after the impasse was
reached with Büchel, and Büchel’s courtesies during his stay simply cannot be
(footnote continued)

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didn’t “stop[] museum officials from showing off the unfinished project.” A795.

For example, “museum directors and curators attending an arts conference in the

Berkshires were led on a tour through Building 5.” Id. “Richard Flood,” curator

of the New Museum of Contemporary Art in New York, “saw it and said it was

one of the best works he’s seen in the past three years,” bragged Joseph Thompson

in an email. A1110, 1246. “North Adams Mayor John Barrett III has been in

twice, and in January, he brought along Governor Deval Patrick.” A795.

And MASS MoCA gave the press particular priority. Geoff Edgers, the

author of a March 28, 2007 Boston Globe story about the impasse between MASS

MoCA and Büchel, A794, was allowed to tour the unfinished work in March 2007,

and he described his visit in an interview with the BBC, see A1565, 1570. The

New York Times was allowed to take photographs of the unfinished work inside

Building 5—photographs that it published in a May 22, 2007 article. A859-60.

MASS MoCA’s contentions that it did not publicly display the unfinished

work are thus completely contradicted by the undisputed evidence.

________________________
(footnote continued)
construed as authorizing such tours. Indeed, in December 2006, Büchel told the
museum that he “will not allow [visitors] to walk around in an installation that is
complete ‘unfinished business,’” that “there is no public ‘work in progress,’” and
that he would not “play[] the artist clown and tour them around.” A669.

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3. The museum’s public attribution


of the unfinished work to Büchel,
and the harm to Büchel’s honor
or reputation.

Finally, the museum claims that it did not attribute the distorted, unfin-

ished work to Büchel, MM Br. 52-54, and that, regardless of whether it modified

or distorted Büchel’s work, Büchel failed to present evidence of injury to his honor

or reputation, id. at 46, 49.

Again, the record belies both contentions. To begin with, the museum’s

claim that it never attributed the unfinished work to Büchel is astounding, because

the evidence reflects that the museum did precisely that that—repeatedly. The mu-
seum engaged in an extensive publicity campaign to promote the unfinished work,

a campaign that accelerated after the museum and artist had reached their impasse.

Joseph Thompson testified that he had spoken to numerous newspapers and other
media—including, among other outlets, the New York Times, the Boston Globe, the

Los Angeles Times, local papers, Artnet, and Art+Auction magazine. A1252.10

The museum even publicly associated its yellow-tarp show, “Made at MASS
MoCA,” with Büchel. It issued a press release announcing that show—a press re-

10
MASS MoCA refers to a March 26, 2007 statement Büchel’s gallery issued to
the Boston Globe, and claims that the statement is evidence that Büchel was re-
sponsible for publicity surrounding the unfinished work. MM Br. 22 & n.82, 54-
55 & n.133; see A785-92. But that statement was issued in a response to a press
inquiry generated by MASS MoCA’s publicity efforts, and “in response to the fact
that members of the press were allowed to view a work in progress without the
consent or presence of the artist.” A786. The Globe’s story came out two days
later. A794.

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lease mentioned Büchel and his unfinished work repeatedly, stated that it was

Büchel’s unfinished work, said that the unfinished work was still in Building 5, de-

scribed the materials that were included in the unfinished work, and announced the

filing of this litigation against Büchel. A834, 1492. Indeed, the press release

makes clear that “Made at MASS MoCA” was nothing but a publicity stunt de-

signed to attract attention to Büchel’s distorted, unfinished work. See also A1127,

1588.

Needless to say, the press reports that resulted from MASS MoCA’s ex-

tensive publicity efforts made clear that the unfinished work in Building 5 was

Büchel’s. E.g., A794-97 (Boston Globe, March 28, 2007), 855-60 (New York

Times, May 22, 2007), 862-66 (ARTINFO.com, July 20, 2007); see also A1540

(referring to articles in, among other places, the North Adams Transcript, the Berk-

shire Eagle, the Albany Times Union, Newsweek, and the Los Angeles Times);

Büchel Br. 27-28 & n.3. Given this extensive publicity, Thompson was forced to

concede at his deposition that were the museum allowed by the district court to fur-
ther display the unfinished work, the media would “likely” continue to refer to

Büchel in their stories on the work, and that the reports would affect Büchel’s

reputation. A1252.

So, too, the evidence of harm to Büchel’s honor or reputation is uncontro-


verted. Critics from the Globe and the New York Times agreed—what MASS

MoCA did distorted Büchel’s work. As the Times critic put it, “[t]he shrouded
non-Büchel is a kind of museological car crash,” because “what is visible above

19
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and below the tarps is barely the skeleton of a Büchel. It’s just a lot of stuff.”

A1587-88 (emphasis added). (It appeared to be just a lot of stuff, of course, be-

cause it consisted in large part of MASS MoCA’s indiscriminate “stacking” of

items it had an “80%” belief that Büchel might use. See pp. 8-11, supra.) As a re-

sult, “what Mass MoCA has done certainly misrepresents Buchel’s art,” observed

the Globe’s critic. A1127 (emphasis added). Such were the opinions of people

who knew Büchel’s art, who had seen his other projects before, and who, as result,

appreciated, among other qualities, Büchel’s unique aesthetic and his remarkable

attention to detail. They understood that what MASS MoCA presented in Building

5 did not reflect Büchel’s talents or work.

The problem from a reputational standpoint, however, was that not every-

one who saw the unfinished work could be expected to understand this. As the

Globe critic observed: “Whether or not the exhibition is clearly labeled ‘unfin-

ished’ and whether or not Buchel is identified as its author, many people are going

to judge [Büchel] and his work on the basis of this experience.” Id. (emphasis
added). The Times noted similarly that

Mr. Büchel contends that the display damages his reputation. It will
certainly give people unfamiliar with his obsessive, history-driven
aesthetic an inaccurate sense of his art, and this is indeed a form of
damage ….

A1587 (emphasis added).

And the evidence is again undisputed: some visitors did indeed judge

Büchel’s work on the basis of MASS MoCA’s distortion of it. A critic wrote in

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Commentary: “Having inspected it Thursday afternoon, I am not sure that it suf-

fers from being enveiled.…” A1127 (emphasis added). And Berkshire Fine Arts

published a review called “Christoph Buchel’s Tarp Art at Mass MoCA: Crap

Under Wrap,” that concluded that it would be “a huge mistake” to take down the

tarps because Büchel’s work offered “virtually nothing of substance or interest,”

and that, indeed, the installation was nothing but “junk.” A1487-88 (emphasis

added).

This evidence—in opposition to which MASS MoCA admits it has pre-

sented nothing11—leaves no doubt that Büchel suffered harm that is cognizable

under VARA. But if there could be any doubt, there is the question of honor.

VARA serves to protect the “honor or reputation” of visual artists. 17 U.S.C.

§ 106A(a)(2), (3). The reason why the statute uses the disjunctive “or” is obvious:

if it did not, someone could deface and then display, say, a painting, and then argue

that there is no reputational harm to the artist because everyone should realize that

the defacing was not done by the artist.12 So honor standing alone is protected by
VARA. And again, the evidence is undisputed. As the Globe observed, what

MASS MoCA did by exhibiting the unfinished installation with the tarps and the

anti-Büchel document room, was to “exact[] revenge” upon Büchel by “turning

11
MM Br. 46 n.123 (“MASS MoCA will not burden the Court” with contrary
evidence).
12
Cf. MM Br. 49 (contending that there is no “evidence that the artistic commu-
nity considered the ‘distortion,’ i.e., the covering of the Planned Installation with
tarpaulins, or its unfinished condition, to be the result of an artistic misjudgment on
Büchel’s part, rather than a result of his dispute with the museum”).

21
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his project into a show that misrepresents, dishonors, vilifies, and even ridicules

him.” A1128 (emphasis added).

II. THE DISMISSAL OF BÜCHEL’S COPYRIGHT ACT CLAIMS WAS


ERROR.

MASS MoCA’s brief defense of the dismissal of Büchel’s Copyright Act

claims is likewise meritless, and may be quickly dispatched.

The museum’s principal contention is that the unfinished work was not

publicly displayed. MM Br. 56. As demonstrated above (pp. 12-17), the record
establishes conclusively that the unfinished work was indeed publicly displayed.

The museum’s next argument is that it owned the physical copy of (as op-

posed to copyright in) Training Ground, and that, accordingly, Section 109(c) of

the Copyright Act, 17 U.S.C. § 109(c), permitted it to display the unfinished work.
As noted in Büchel’s opening brief, however, that provision does not help MASS

MoCA, because the museum’s copy was not “lawfully made,” which is an express

statutory prerequisite for the protection afforded by Section 109(c). Büchel Br. 51.

Beyond this, it is simply untrue that, as MASS MoCA asserts, “the installation’s

various components” were all “purchased by … , donated to … , or … constructed

by MASS MoCA.” MM Br. 58. The evidence shows that some of the materials

were provided by Büchel and one of his galleries, A737, 743-45, 748-49 (noting

materials contributed by “Maccarone” and “CB Assts” (Büchel’s assistants)),

A1572; and it also reflects that the museum displayed, without Büchel’s permis-
sion, his picture archive, personal notes, and project ideas, all of which were un-

22
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questionably owned, both physically and in copyright, by Büchel, A812, 1566-

67.13 In any event, even MASS MoCA understood that the physical copy of the

installation was to belong to Büchel. See, e.g., A1496 (“it belongs to you” and

Büchel may “sell all or part of it”), A607 (museum’s proposed contract, stating that

“[u]pon termination of the exhibit, the fabricated work shall be owned outright by

you, including all copyrights and related preparatory materials”).14

Finally, MASS MoCA contends it did not create any derivative work
when it modified and distorted Training Ground for Democracy. MM Br. 58-61.

This contention, however, is belied by its representation to the district court that

the installation

[m]aterials as they now stand reflect significant aesthetic and design


choices by MASS MoCA personnel, including with respect to the lay-
out of the [m]aterials, and with respect to the selection and procure-
ment of pre-existing buildings and vehicles that have been modified
and incorporated into the [m]aterials.

A346 (citation omitted; emphasis added). Again, in its director’s own words, what

MASS MoCA did was to “transform” “a Christoph Büchel work of art” into what

13
Although the issue is not material to any legal issue in the case, Büchel vigor-
ously disputes the museum’s contentions as to the amount that it spent on the in-
stallation. The record reflects that the museum’s figure was significantly in-
flated—for example, by the inclusion of the value of a house that was donated to
the museum. E.g., A924-25, 1561, 899 & n2.
14
Neither the museum’s proposed contract, A606-09, or the counterdraft prepared
by Büchel’s New York gallery, A1500-02, were ever executed by the parties,
A919, 881, 436, 1179-80, 1551. But as the museum’s draft makes clear, both par-
ties understood that the physical copy of the work was to belong to Büchel.

23
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it could, and did, publicly present as “a failed work-in-progress.” A725. That is

the creation of a derivative work. MASS MoCA likewise created a derivative

work from the Büchel’s model and plans. And the museum’s creation of a

“tarped” version of the work—where the viewer sees some elements of the unfin-

ished work, but not others—was also the creation of a separate, unauthorized de-

rivative work. See, e.g., Mirage Editions, Inc. v. Albuquerque A.R.T. Co., 856 F.2d

1341, 1343-44 (9th Cir. 1988); Greenwich Workshop, Inc. v. Timber Creations,

Inc., 932 F. Supp. 1210, 1215 (C.D. Cal. 1996).15 For as even the district court ac-

knowleged, the “‘degree of creativity’” needed to create an original or derivative

work is “‘minimal.’” Add. 49, 565 F. Supp. 2d at 259 (emphasis added; quoting

Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 345 (1991)). In fact,

as the Supreme Court has made clear, “the requisite level of creativity is extremely

low; even a slight amount will suffice.” Feist, 499 U.S. at 345 (emphasis added).

15
There is no merit to MASS MoCA’s suggestion, made in a footnote (MM Br.
55 n.134), that the museum might be considered a joint author of Training Ground.
In its oral ruling, the district court correctly rejected this contention. Add. 13.
MASS MoCA publicly gave Büchel, and Büchel alone, credit for the work. E.g.,
A981 (museum’s December 6, 2006 postponement announcement), A834 (mu-
seum’s May 22, 2007 cancellation announcement). Likewise, Joseph Thompson
testified that Büchel was the artist, and that he, Thompson, was not an artist.
A1167, 1170, 1249; see also, e.g., A1105. And certainly Büchel viewed himself as
the artist. E.g., A1443 (“I am supposed to be the artist”). This evidence refutes
any claim of joint authorship, which requires, among other things, proof that the
parties “entertain in their minds the concept of joint authorship.” Thomson v. Lar-
son, 147 F.3d 195, 201 (2d Cir. 1998) (citation and internal quotation marks omit-
ted).

24
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CONCLUSION

It is respectfully submitted that the judgment of the district court should

be reversed.

CHRISTOPH BÜCHEL
By his attorneys,

/s/ GEORGE T. CONWAY III


George T. Conway III (No. 88538)
Elaine P. Golin (No. 124151)
WACHTELL, LIPTON, ROSEN & KATZ
51 West 52nd Street
Of Counsel: New York, New York 10019
(212) 403-1000
Elena M. Paul (No. 1135536)
Sergio Muñoz Sarmiento (No. 1135565) John C. Blessington (No. 66967)
VOLUNTEER LAWYERS FOR THE ARTS Sara E. Yevics (No. 1132898)
1 East 53rd Street, 6th Floor K&L GATES LLP
New York, New York 10022 State Street Financial Center
(212) 319-2787 One Lincoln Street
Boston, Massachusetts 02111
April 20, 2009 (617) 261-3000

25
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CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because it contains 6,780 words, excluding the parts of the brief ex-
empted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6), because it was
prepared in a proportionally spaced typeface using Microsoft Word 2008 for Mac,

Version 12.1.0, in 14-point Times New Roman font.

/s/ GEORGE T. CONWAY III


George T. Conway III
Attorney for Defendant-Appellee
Christoph Büchel
April 20, 2009
Case: 08-2199 Document: 00115885751 Page: 31 Date Filed: 04/22/2009 Entry ID: 5336823

CERTIFICATE OF SERVICE
08-2199 Massachusetts MoCA v. Büchel

I hereby certify that two paper copies of this Reply Brief for
Defendant-Appellant Christoph Büchel, and one disk, were sent by Federal
Express Next Business Day Delivery to:

Kurt Wm. Hemr (No. 48253)


Lindsay Dickerson (No. 1134948)
Skadden, Arps, Slate, Meagher
& Flom LLP
One Beacon Street
Boston, Massachusetts 02108
(617) 573-4800

Attorneys for Plaintiff-Appellee


Massachusetts Museum of
Contemporary Art Foundation, Inc

I also certify that the original brief, nine copies and one disk were also shipped via
by Federal Express Next Business Day Delivery to:

Clerk of Court
United States Court of Appeals, First Circuit
1 Courthouse Way, Suite 2500
Boston, Massachusetts 02210
(617) 748-9057

on this 20th day of April 2009.

/s/ Natasha R. Monell


Natasha R. Monell, Esq.