Christoph Büchel v. Mass MoCA: A Tilted Arc for the Twenty-First Century

I.

The 1990 Visual Artists Rights Act (VARA) is a provision of U.S. copyright law that seeks to protect the noneconomic rights of artists, called "moral rights." These rights are due to the "presumed intimate bond between artists and their works."¹ In the United States it protects rights of artistic attribution and integrity: the artwork cannot be claimed as the work of another, and it cannot be distorted. In some cases VARA protects artworks from destruction. But what is the nature of this intimate bond? The underlying principle behind the legal construct of artistic moral rights is that the artwork is an extension of its creator such that any harm to the work is a violation of the personhood of the artist.² Another model for conceiving of the relation between artist and artwork is that of parent and child—the artist creates the work, breathes life into it, and his signature provides a form of artistic paternity that assures the work's legitimacy and recognition in the culture at large.³ One problem with this model is that, while artists always precede their works temporally, it is not always clear that they precede them ontologically: one's identity as an artist is secured only if one has made something that others recognize as an artwork. Thus, while artists create artworks, there is an important sense in which the work in turn creates the artist. A third, final model of the relation between art and artist is one in which the "intimate bond" between artist and artwork is challenged, problematized, and even denied. We might call this the artwork-as-orphan model of authorship.

Indeed, this third model has had a great deal of currency in twentieth-century art and has often been the very meaning and focus of artworks, if not entire art movements.⁴ And yet these different ways of understanding the nature of the relation between artist and artwork have remained simultaneously in play, despite their apparent incompatibility. The tension among the different models for understanding the relation between the artist and the artwork is brought most explosively to light when legal battles erupt between artists and institutions. This can be found in both the Tilted Arc controversy of the 1980s and in a recent dispute involving the Swiss installation artist Christoph Büchel and the Massachusetts Museum of Contemporary Art (Mass MoCA). On the surface, these cases are very different: the former concerned a work of public art commissioned by the government, while the latter involves an unfinished installation in an art institution. Nevertheless, in both cases what is at stake are the artist's moral rights over his creation and the competing claims of the exhibiting institutions' rights either to destroy, distort, or display the work against the artist's wishes.⁵ It may seem self-evident that the artist's rights must be protected from the more powerful institutions involved, be it the government or a museum. But it is also important to note that the presumed antagonism between artist and institution belongs to an allegedly outdated ideology of the avant-garde rooted in the nineteenth century. While so much of contemporary art positions itself as rejecting the ideology of artistic autonomy and freedom associated with modernism, these disputes reveal our lack of a consistent theory of artistic production despite decades of artistic and theoretical gestures aimed at revising it.⁶

While the circumstances and debates surrounding the Titled Arc dispute are well-known and will not be rehearsed here,⁷ the recent controversy between Büchel and Mass MoCA has yet to receive the serious critical attention it deserves. The artist claims that the museum violated his moral rights for attempting to display to the public his unfinished and abandoned artwork in its galleries; however, the museum had expended large amounts of its own time and money to produce the work. The implications of this case regarding the shifting dynamics between artists and institutions are enormous, especially as institutions move into the role of producing and financing the creation of...