Massachusetts Museum of Contemporary Art Foundation, Inc. v. Buchel, 08-2199 (1st Cir. 2010)

The First Circuit (Howard, Woodckock, Lipez writing) issued a mammoth decision on Wednesday that addressed a number of interesting issues concerning the Visual Artists Rights Act. An artist conceived and partially executed a football-field sized art installation which was to be exhibited at the Massachusetts Museum of Contemporary Art. The artist and the museum never entered into a written contract. The relationship between the two parties soured and the work was never fully completed.

The Museum sought a declaration in federal court that it was “entitled to present to the public the materials and partial constructions” it had collected for the work. The artist responded with a series of counterclaims under the Copyright Act and the Visual Artists Rights Act, seeking damages and an injunction against the display of the unfinished art work.

The district court granted summary judgment in favor of the Museum on all claims, finding that no genuine issues of material fact existed. The First Circuit vacated the granting of summary judgment on the claim for copyright infringement (right to display) and violation of the right of integrity granted in VARA.

Are unfinished works granted rights under VARA?

As an initial question, the First Circuit addressed whether unfinished works  are granted rights under VARA. The Court found that the definition in 17 USC 101 for a “work of visual art” governed the provisions in VARA, and found that VARA applied to unfinished works:

. . . VARA is part of the Copyright Act, and that Act’s definition section, which defines “work of visual art,” specifies that its definitions, unless otherwise provided, control throughout Title 17. See 17 U.S.C. § 101. That general definitional section of the Copyright Act states that a work is “created” when it “is fixed in a copy . . . for the first time.” Further, “where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time.” 17 U.S.C. § 101 (emphasis added).

Is there a different burden of proof in a claim for violation of VARA right of integrity when seeking an injunction and when seeking damages?

The Court addressed whether a plaintiff had the same burden of proof to be awarded an injunction and damages for a violation of integrity.The Court found that a similar showing of prejudice is required for a plaintiff to be awarded damages and an injunction:

Some courts, however, have assumed without analysis that the prejudice showing is necessary for both injunctive relief and damages. See, e.g., Hanrahan v. Ramirez, No. 2:97-CV-7470, 1998 WL 34369997, at *3 (C.D. Cal. June 3, 1998) (citing 17 U.S.C. §
106A(a)(3)); Carter v. Helmsley-Spear,Inc., 861 F. Supp. 303, 329-30 (S.D.N.Y. 1994), aff’d in part, vacated in part, and rev’d in part by Carter, 71 F.3d at 77. At least one commentator likewise accepts, without discussion, that the damages remedy requires a showing of prejudice. See Melville B. Nimmer, 3-8D Nimmer on Copyright § 8D.06[C][1] (noting that “an intentional and prejudicial mutilation is an integrity violation, remediable through not only an injunction, but damages as well”).

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We agree with Nimmer’s view of the provision, including the application of the prejudice requirement to a claim for damages, and consider that construction soundly grounded in VARA’s legislative history.

Can a plaintiff seek damages or merely an injunction for a violation of the right to attribution?

The First Circuit also found that a plaintiff can only seek an injunction, and not damages, for a violation of the right to attribution:

We agree with Nimmer’s surmise that VARA does not provide a damages remedy for an attribution violation. Where the statutory language is framed as a right “to prevent” conduct, it does not necessarily follow that a plaintiff is entitled to damages once the conduct occurs. The question is whether “doing” the act the artist has a right to prevent also triggers a damages remedy, and the statutory language indicates that Congress answered that question for the attribution right differently from the integrity right.