Massachusetts Museum of Contemporary Art Foundation, Inc. v. Büchel

United States Court of Appeals
For the First Circuit

No. 08-2199

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

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Lipez and Howard, Circuit Judges,
and Woodcock, District Judge.*

George T. Conway III, with whom Elaine P. Golin, Wachtell,
Lipton, Rosen & Katz, John C. Blessington, Sara E. Yevics, K&L
Gates LLP, Elena M. Paul, Sergio Muñoz Sarmiento, and Volunteer
Lawyers for the Arts were on brief, for appellant.
John L. Gardiner, with whom Elizabeth A. Hellmann, Kurt Wm.
Hmr, Lindsay R. Dickerson, and Skadden, Arps, Slate, Meagher & Flom
LLP were on brief, for appellee.

January 27, 2010

*
Of the District of Maine, sitting by designation.
 LIPEZ, Circuit Judge. As one observer has noted, this

case, which raises important and unsettled legal issues under the

Visual Artists Rights Act ("VARA"), may well serve as "the ultimate

how-not-to guide in the complicated world of installation art."

Geoff Edgers, Dismantled, The Boston Globe, Oct. 21, 2007, at 1N.

Artist Christoph Büchel conceived of an ambitious, football-field-

sized art installation entitled "Training Ground for Democracy,"

which was to be exhibited at the Massachusetts Museum of

Contemporary Art ("MASS MoCA," or "the Museum"). Unfortunately,

the parties never memorialized the terms of their relationship or

their understanding of the intellectual property issues involved in

the installation in a written agreement. Even more unfortunately,

the project was never completed. Numerous conflicts and a steadily

deteriorating relationship between the artist and the Museum

prevented the completion of "Training Ground for Democracy" in its

final form.

In the wake of this failed endeavor, the Museum went to

federal court seeking a declaration that it was "entitled to

present to the public the materials and partial constructions" it

had collected for "Training Ground for Democracy." Büchel

responded with several counterclaims under VARA and the Copyright

Act,1 seeking an injunction that would prevent MASS MoCA from

1
VARA was enacted as an amendment to the Copyright Act. See
infra Section II.

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displaying the unfinished installation and damages for the Museum's

alleged violations of his rights under both VARA and the general

Copyright Act.

On cross-motions for summary judgment, the district court

assumed that VARA applies to unfinished works of art, but it

nonetheless ruled for the Museum in all respects because, even

granting VARA's applicability, it found no genuine issues of

material fact. Massachusetts Museum of Contemporary Art Found.,

Inc. v. Büchel, 565 F. Supp. 2d 245 (D. Mass. 2008). Büchel

appeals. Because we find that, if VARA applies, genuine issues of

material fact would foreclose summary judgment on one of Büchel's

VARA claims – that MASS MoCA violated his right of artistic

integrity by modifying the installation – we cannot assume that

VARA applies to unfinished works but instead must decide its

applicability. We conclude that the statute does apply to such

works.

We further conclude that, in addition to his VARA claim,

Büchel asserts a viable claim under the Copyright Act that MASS

MoCA violated his exclusive right to display his work publicly.

Accordingly, we reverse in part the grant of summary judgment for

MASS MoCA and remand for further proceedings.

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 I.

A. The Parties

MASS MoCA opened in 1999 as a center for the creation and

display of contemporary art. The Museum "seeks to catalyze and

support the creation of new art, expose [its] visitors to bold

visual and performing art in all stages of production, and

re-invigorate the life of a region in socioeconomic need."

Massachusetts Museum of Contemporary Art, Mission Statement,

http://www.massmoca.org/mission.php (last visited Jan. 13, 2010).

In its expansive facility in North Adams, Massachusetts, the Museum

strives to "make the whole cloth of art making, presentation and

public participation a seamless continuum." Id. Over the last

decade, the Museum has hosted the production and presentation of

over sixty exhibits of visual art, including over 600 works of art

by more than 250 individual artists. Some of these works have been

displayed in Building 5, the Museum's signature exhibition space,

which spans the length of a football field. The Museum strives to

"offer visual artists the tools and time to create works of a scale

and duration impossible to realize in the time and space-cramped

conditions of most museums," and MASS MoCA prides itself on

exposing its audiences to "all stages of art production:

rehearsals, sculptural fabrication, and developmental workshops are

frequently on view, as are finished works of art." Id.

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 Christoph Büchel is a Swiss visual artist who lives and

works in Basel, Switzerland. He is "known for building elaborate,

politically provocative environments for viewers to wander, and

sometimes to crawl, through." Randy Kennedy, The Show Will Go On,

but the Art Will Be Shielded, N.Y. Times, May 22, 2007, at E1 ("The

Show Will Go On"). One critic has stated that "Mr. Büchel's

environments are huge in scale," "like bristling three-dimensional

history paintings," yet are "so obsessively detailed that they

might best be described as panoramic collage." Roberta Smith, Is

It Art Yet? And Who Decides?, N.Y. Times, Sept. 16, 2007, at 21.

B. Factual Background

Focusing first on those facts that are undisputed, we

sketch the course of dealings between Büchel and MASS MoCA to put

this appeal in context.2 MASS MoCA became interested in planning

a new installation with Büchel. The artist visited the North Adams

facility in October 2005 to begin preliminary discussions regarding

the project, and those discussions continued into 2006. At some

point during this time, Büchel proposed, and the Museum agreed to,

a project entitled "Training Ground for Democracy." As Museum

Director Joseph Thompson indicated in a letter to Büchel's gallery

representatives, MASS MoCA understood that "Büchel's projects

typically require a lengthy period of installation and

2
We consider the parties' conflicting accounts of the key
evidence in our summary judgment analysis, infra.

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preparation," and that, given the gallery space of Building 5,

"this project [would] be his largest venture to date."

Büchel conceived of the exhibit as "essentially a

village, . . . contain[ing] several major architectural and

structural elements integrated into a whole, through which a

visitor could walk (and climb)." According to an affidavit

submitted to the district court, Büchel envisioned the work in the

following way:

It was to adopt the role-play of U.S. military
training for its visitors, who would be given
the opportunity to "virtually" change their
own various identities in relation to the
collective project called "democracy":
training to be an immigrant, training to vote,
protest, and revolt, training to loot,
training iconoclasm, training to join a
political rally, training to be the objects of
propaganda, training to be interrogated and
detained and to be tried or to judge, training
to reconstruct a disaster, training to be in
conditions of suspended law, and training
various other social and political behavior.

In August 2006, Büchel spent ten days in residence at

MASS MoCA. During this time, he and a partner prepared a basic

schematic model of the proposed installation. MASS MoCA agreed to

acquire, at Büchel's direction but its own expense, the materials

and items necessary for the project.

Unfortunately, the parties never formalized the contours

of their relationship or firmly established the project's financial

scope and precise specifications by executing any written

instrument. Although MASS MoCA's curator, Nato Thompson (no

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relation to the Museum Director),3 sent Büchel's gallery sales

representative in the United States a letter on September 14, 2006

that was designed to "formalize [the parties'] relationship on this

project," there is no indication that Büchel himself ever saw, much

less signed, this proposal.4 The gallery responded with a proposed

contract of its own, providing that MASS MoCA should bear the costs

of transporting and organizing the various materials for the

installation. The Museum did not respond to this proposal.

Additionally, it is undisputed that Büchel never signed a document

waiving any rights to which he would otherwise be entitled under

VARA. The parties did apparently agree, however, that once the

planned installation was finished, and after the public exhibition

period had concluded, MASS MoCA would not contest Büchel's sole

title to any copyright in the completed work. The parties set an

opening date of December 16, 2006 for the exhibit.

3
Throughout the opinion, any reference to "Thompson" without
a first name will refer to Museum Director Joseph Thompson. Nato
Thompson will be identified by his full name.
4
The letter, signed by Museum Director Joseph Thompson, was
attached to an email sent by Nato Thompson. The proposal did not
lay out a definitive budget for the project, although in a separate
letter to Büchel the following day, Joseph Thompson stated "we
think we've got a $160,000 project on our hands in direct costs."
In a reply email dated September 24, 2006, Büchel did not
explicitly agree to or reject the $160,000 figure, but suggested
that MASS MoCA get in touch with his two galleries, which might
provide information regarding "potential sponsors like foundations"
for the installation.

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 Over the course of the fall, tensions began to develop

between the artist and MASS MoCA employees, particularly Joseph

Thompson. "In summary, the museum felt the artist's directions

were vague, and his financial and logistical demands were

increasingly unreasonable; the artist felt the museum was

compromising his artistic integrity and failing to follow his

instructions." MASS MoCA, 565 F. Supp. 2d at 247. One frequent

source of conflict between the parties was the budget, with the

Museum understandably concerned about keeping its costs for the

massive project under control, and Büchel understandably insistent

that his vision for "Training Ground" be fully realized. But as

the district court correctly noted, "[t]he dispute about these

financial understandings is not material" to whether Büchel has

presented triable claims under either VARA or the Copyright Act,

id. at 250, and we therefore need not focus on its messy details.

Instead, for our purposes, the key conflict between MASS

MoCA and the artist involved Büchel's dissatisfaction with the way

in which the Museum was implementing his instructions and

procuring the items necessary for the installation. Büchel himself

was not present in North Adams for the first several months of work

on the project. Instead, he conducted much of his work on the

installation throughout the fall of 2006 remotely, by providing

Museum personnel with detailed instructions as to the particular

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materials he required and their placement within the exhibition

space.

In the words of the district court, "[a]t various points

in the development of the installation, Büchel proposed several

major components," some but not all of which later became part of

the installation "as its elements evolved through discussions with

MASS MoCA during the construction process." Id. These major

components included a movie theater, a house, a bar, a mobile home,

various sea containers, a bomb carousel, and an aircraft fuselage.

Id. The Museum had begun seeking out some of these materials and

others for potential use in the installation as soon as Büchel left

North Adams at the end of August 2006, and continued to do so

throughout the fall. One of the Museum's curators described the

search for these items (at Büchel's direction) as "the ultimate

scavenger hunt." However, problems soon arose, especially between

Thompson and Büchel, as to the progress of the project,

particularly when, as Thompson explained in an internal Museum

email dated October 28, 2006, he had tried to "move the project

along" by "making a few decisions in [Büchel's] stead." Thompson

noted that Büchel, whom he described as having "clear vision" and

"rock solid integrity," had taken "extreme, mortal[] offense" to

Thompson's efforts.

On October 29, 2006, Büchel returned to North Adams to

complete "Training Ground for Democracy," and three of his

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assistants from Switzerland arrived shortly thereafter. Unhappy

with some of the work that had been done by the Museum in his

absence, Büchel felt that certain logistical and organizational

failures by the Museum had endangered the timely opening of the

show. Büchel wrote in an email to Thompson that he would not allow

the Museum to open an "unfinished show in my name, since you are

responsible for this major delay." By early December 2006, Büchel

insisted that the Museum postpone the opening of the show and

asserted that he would not "accept an opening of a work in progress

or other compromise." During the first week of the month, MASS

MoCA agreed to delay the opening, posting the following message on

its website: "Due to logistical complexities encountered by the

museum in preparing galleries for Christoph Büchel's vast

installation, the exhibition's official opening date . . . will be

re-scheduled."

Büchel remained onsite at the Museum working on "Training

Ground" until December 17, 2006, when he left for the holidays. In

Büchel's estimation, "Training Ground" was then only about 40%

complete. At the time, he planned to return on January 8, 2007, in

order to finish the work in time for a March 3 opening. When he

left North Adams, the artist was obviously disappointed with the

progress of "Training Ground." He called the Museum disorganized

and faulted it for underestimating the scope of his project. He

felt that Museum employees, by failing to precisely carry out his

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detailed instructions and making artistic decisions in his stead,

had generated even more work for his crew, as numerous components

of the installation had to be reworked to Büchel's specifications.

In general, he felt that the Museum was trying to scale back his

artistic vision without consulting him.

Meanwhile, the Museum was running out of money for the

project. In an attempt to secure further funding, it disregarded

Büchel's express wishes and, in late December 2006, asked for money

from his galleries. Angry and frustrated, the artist wrote that he

would not move forward with the installation until "all financial

problems are solved, regarding ALL elements of the show and until

my crew is being sure that they [are] getting paid." By mid-

January 2007, tensions had escalated to the point where Büchel

informed the Museum that he would not return to continue work on

"Training Ground" unless certain conditions, both financial and

artistic, were met.

In Büchel's absence, MASS MoCA staff continued to work on

the installation. The parties disagree as to whether the employees

were merely executing instructions left by the artist or whether

their actions represented independent artistic judgment, exercised

in direct contravention of Büchel's express wishes. The parties

also disagree as to whether, in the spring of 2007, while

negotiations had stalled but work on the installation was ongoing,

the Museum promoted - and even showed - the unfinished work to

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numerous visitors without Büchel's consent, in one form or another.

As the vitriolic exchanges between the parties continued,

and negotiations over the project's eventual completion became

hopeless, "Training Ground" languished in its unfinished state. It

became clear that Büchel would not complete the installation. On

May 22, 2007, MASS MoCA announced the cancellation of "Training

Ground," and contemporaneously publicized the opening of a new

exhibit entitled "Made at MASS MoCA," which was to be "a

documentary project exploring the issues raised in the course of

complex collaborative projects between artists and institutions."

Massachusetts Museum of Contemporary Art, Press Release,

Presentation of Training Ground for Democracy Cancelled; New

Exhibition, Made at MASS MoCA, to Open on Saturday, May 26 ("Press

R e l e a s e " ) , a v a i l a b l e a t

http://www.massmoca.org/event_details.php?id=144 (May 22, 2007).

The press release noted that this lawsuit had been filed the

previous day; it also highlighted the Museum's desire to use its

"other experiences working with artists" to "provide [its] audience

with thought-provoking insights into the complexities of the art-

making process." Id. The release further explained that, due to

"space constraints imposed by the materials assembled for Training

Ground for Democracy," the exhibition would be presented in the

Museum's "only remaining available gallery space"; therefore, in

order to enter the exhibit, visitors would have to pass through

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Building 5, "housing the materials and unfinished fabrications that

were to have comprised elements of Training Ground for Democracy."

Id. The Museum represented that "[r]easonable steps [had] been

taken to control and restrict the view of these materials, pending

a court ruling."

When "Made at MASS MoCA" opened, many in the art world

disagreed with the Museum's handling of its dispute with Büchel,

though the parties have different views on whether the Museum's

actions ultimately tarnished the artist's reputation. Moreover,

the parties differ on whether the "reasonable steps . . . taken to

control and restrict the view of the[] materials" – the placement

of yellow tarpaulins over the unfinished work – actually concealed

all of the individual components and vital design elements of

"Training Ground," or whether the tarpaulins simply "hid[] an

elephant behind a napkin," effectively inviting individuals to peek

behind the cloth coverings and view the unfinished work. See

Charles Giuliano, Christoph Buchel's Tarp Art at Mass MoCA: Crap

Under Wrap (July 31, 2007) ("Crap Under Wrap"), available at

http://www.berkshirefinearts.com/show_article.php?article_id=368&

category=finearts.

C. Procedural Background

The Museum sued Büchel on May 21, 2007, in the United

States District Court for the District of Massachusetts. The

complaint asserted a single claim for declaratory relief under

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VARA. The Museum sought a declaration that it was "entitled to

present to the public the materials and partial constructions

assembled in connection with an exhibit planned with the Swiss

artist Büchel." Büchel responded by asserting five counterclaims

against the Museum. The first sought a declaratory judgment and an

injunction under VARA prohibiting the Museum from publicly

displaying "the unfinished Work of Art or any of its component

elements." The second sought damages for MASS MoCA's alleged

violations of Büchel's VARA rights by "intentionally distort[ing]

and modif[ying] the Work of Art" and allowing members of the public

to "see and pass through" the unfinished work, both with and

without the yellow tarpaulins. The third, fourth and fifth

counterclaims sought damages and injunctive relief under the

Copyright Act based on alleged violations of Büchel's right to

publicly display and create derivative works from his work.

On MASS MoCA's motion, the court ordered an expedited

discovery schedule that included a private viewing by the district

court of Building 5 and the unfinished installation. After the

close of discovery, both sides filed cross-motions seeking summary

judgment on the complaint and all counterclaims. On September 21,

2007, the court held oral argument on the cross-motions and ruled

from the bench. That decision addressed only the Museum's original

complaint seeking declaratory relief to allow public display of the

partially completed project and Büchel's corresponding counterclaim

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seeking to prevent the Museum from showing the then-existing work.

The court ruled in favor of the Museum, noting that nothing in VARA

prevented MASS MoCA from showing the incomplete project.

Therefore, MASS MoCA was "entitled to present" the unfinished

installation to the public as long as it posted a disclaimer that

would "inform anyone viewing the exhibit that the materials

assembled in Building 5 constitute an unfinished project that [did]

not carry out the installation's original intent." The court

correspondingly denied the artist's request for injunctive relief

barring public display of the unfinished installation, ruling that

he had failed to prove a likelihood of success on the merits of his

VARA claim. The court stated that it would "in the coming weeks"

issue a detailed memorandum explaining its oral rulings and

addressing the remaining claims.

However, several days after obtaining the ruling in its

favor, MASS MoCA changed course. The Museum posted an announcement

on its website stating that it had "begun removing materials

gathered for Training Ground for Democracy and [would] not permit

the public to enter the planned installation." MASS MoCA Blog,

" W e ' l l R e m o v e T r a i n i n g G r o u n d , "

http://blog.massmoca.org/2007/09/28/well-remove-training-ground/

(Sept. 28, 2007) (last visited Jan. 13, 2010).

On July 11, 2008, the district court issued its written

opinion, recognizing that some of the issues presented in the case

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were now moot, but nevertheless wishing to explain its holding and

to address the VARA and Copyright Act claims remaining in the case.

The court summarized its holding this way:

When an artist makes a decision to begin work
on a piece of art and handles the process of
creation long-distance via e-mail, using
someone else's property, someone else's
materials, someone else's money, someone
else's staff, and, to a significant extent,
someone else's suggestions regarding the
details of fabrication – with no enforceable
written or oral contract defining the parties'
relationship – and that artist becomes unhappy
part-way through the project and abandons it,
then nothing in the Visual Artists Rights Act
or elsewhere in the Copyright Act gives that
artist the right to dictate what that "someone
else" does with what he has left behind, so
long as the remnant is not explicitly labeled
as the artist's work. No right of artistic
"attribution" or "integrity," as those terms
are conceived by VARA, is implicated, let
alone violated in these circumstances.
Similarly, the Copyright Act provides no
mechanism for relief, legal or equitable, to
an artist such as Defendant Büchel here, based
on the decision of an exhibitor such as
Plaintiff MASS MoCA to allow patrons to walk
past covered components of an unfinished
installation.

565 F. Supp. 2d at 248-29. The court therefore granted MASS MoCA's

motion for summary judgment and denied Büchel's, entering judgment

for the Museum on its claim for declaratory relief as well as on

all five of Büchel's counterclaims. Büchel appeals.

II.

Passed in 1990, the Visual Artists Rights Act, 17 U.S.C.

§ 106A, was an amendment to the Copyright Act that protects the

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"moral rights" of certain visual artists in the works they create,

consistent with Article 6bis of the Berne Convention. Phillips v.

Pembroke Real Estate, Inc., 459 F.3d 128, 133 (1st Cir. 2006);

Carter v. Helmsley-Spear, Inc., 71 F.3d 77, 83 (2d Cir. 1995)

(citing H.R. Rep. No. 101-514, at 5 (1990) ("House Report"), as

reprinted in 1990 U.S.S.C.A.N. 6915, 6917).5 The "rubric of moral

rights encompasses many varieties of rights," but the two most

widely recognized are attribution and integrity. Id. at 81 (citing

Ralph E. Lerner & Judith Bresler, Art Law 417, 420 (1989)). We

will discuss both of these in detail below, but note briefly now

that the right of attribution protects the author's right to be

identified as the author of his work and also protects against the

use of his name in connection with works created by others. Id.

The right of integrity "allows the author to prevent any deforming

or mutilating changes to his work." Id. Although these moral

rights "exist independent[ly] of the economic rights" granted to

all authors under the Copyright Act, 5 William F. Patry, Patry on

Copyright § 16:1 (2009), they are part of the same statutory

framework.

5
The Berne convention, developed at the instigation of Victor
Hugo and first adopted in Berne, Switzerland in 1886, is "'an
international copyright treaty providing that works created by
citizens of one signatory nation will be fully protected in other
signatory nations, without the need for local formalities.'"
Phillips, 459 F.3d at 133 n.3 (quoting Black's Law Dictionary, 8th
ed. (1999)).

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A. The Copyright Act

Under the Copyright Act, "[c]opyright protection subsists

. . . in original works of authorship fixed in any tangible medium

of expression." 17 U.S.C. § 102(a). A copyright owner has certain

exclusive rights to the work, which are enumerated in 17 U.S.C.

§ 106. T-Peg, Inc. v. Vermont Timber Works, Inc., 459 F.3d 97, 108

(1st Cir. 2006). Of particular relevance to this litigation, the

copyright holder has the exclusive right to publicly display the

copyrighted work and to prepare derivative works based upon it. 17

U.S.C. § 106(5), (2). "One infringes a copyright when he or she

violates one of the exclusive rights to a work held by a copyright

owner, and the owner has the right to sue for infringement."

T-Peg, Inc., 459 F.3d at 108 (citing 17 U.S.C. § 501). The

remedies provided by the Copyright Act include injunctive relief

and actual or statutory damages. See 17 U.S.C. §§ 502, 504.6

B. VARA

Beyond the Copyright Act's protections of certain

economic rights, VARA provides additional and independent

6
Under the Copyright Act, a plaintiff may elect to recover
statutory damages instead of actual damages for each work infringed
"in a sum of not less than $750 or more than $30,000 as the court
considers just." 17 U.S.C. § 504(c)(1). If the copyright owner
proves that the infringement was committed willfully, the court "in
its discretion" may increase the award of statutory damages to "a
sum of not more than $150,000." Id. at 504(c)(2). The award may
also be reduced to $200 if the infringer proves that he or she was
not aware "and had no reason to believe that his or her acts
constituted an infringement of copyright." Id.

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protections to authors of works of visual art. See Carter, 71 F.3d

at 81-83. A work of visual art is defined to include "a painting,

drawing, print, or sculpture,7 existing in a single copy" or in a

limited edition. 17 U.S.C. § 101. The definition specifically

excludes a number of works that are otherwise copyrightable,

including motion pictures and other audiovisual works, books,

posters, periodicals, works made for hire, and merchandising,

advertising, promotional, or packaging materials. Id.

VARA provides that, in addition to the exclusive rights

provided by section 106 of the Copyright Act, but subject to

certain limitations, the author of a work of visual art

(1) shall have the right —

(A) to claim authorship of that
work, and

(B) to prevent the use of his or her
name as the author of any work of
visual art which he or she did not
create;

(2) shall have the right to prevent the use of
his or her name as the author of the work of

7
The parties do not dispute that, if completed, "Training
Ground for Democracy" would have been a sculpture and therefore a
qualified "work of visual art" under VARA. Furthermore, VARA's
legislative history states that "[t]he term 'sculpture' includes,
but is not limited to, castings, carvings, modelings, and
constructions." House Report at 11 (1990), as reprinted in 1990
U.S.C.C.A.N. at 6921 (emphasis added). The Second Circuit in
Carter similarly considered VARA's application to a "very large
'walk-through sculpture' occupying most, but not all, of [a]
building's lobby." 71 F.3d at 80; see also id. at 84 ("Concededly,
considered as a whole, the work is a sculpture and exists only in
a single copy.").

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 visual art in the event of a distortion,
mutilation, or other modification of the work
which would be prejudicial to his or her honor
or reputation; and

(3) subject to the limitations set forth in
section 113(d), shall have the right —

(A) to prevent any intentional
distortion, mutilation, or other
modification of that work which
would be prejudicial to his or her
honor or reputation, and any
intentional distortion, mutilation,
or modification of that work is a
violation of that right, and

(B) to prevent any destruction of a
work of recognized stature, and any
intentional or grossly negligent
destruction of that work is a
violation of that right.

17 U.S.C. § 106A(a).

VARA's passage reflected Congress's belief that the art

covered by the Act "meet[s] a special societal need, and [its]

protection and preservation serve an important public interest."

House Report at 5-6, as reprinted in 1990 U.S.C.C.A.N. at 6915-16.

To encourage the creation of such art, VARA protects the "moral

rights" of its creators. These are "rights of a spiritual, non-

economic and personal nature" that exist "independently of an

artist's copyright in his or her work" and "spring from a belief

that an artist in the process of creation injects his spirit into

the work and that the artist's personality, as well as the

integrity of the work, should therefore be protected and

preserved." Carter, 71 F.3d at 81. The recognition of moral

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rights fosters a "'climate of artistic worth and honor that

encourages the author in the arduous act of creation.'" Id. at 83

(quoting House Report at 6, as reprinted in 1990 U.S.C.C.A.N. at

6915). Although an artist may not transfer his VARA rights (as

they are considered an extension of his personality), he may waive

those rights by "expressly agree[ing] to such waiver in a written

instrument." 17 U.S.C. § 106A(e)(1). Also, "[a]ll remedies

available under copyright law, other than criminal remedies, are

available in an action for infringement of moral rights." Carter,

71 F.3d at 83 (citing 17 U.S.C. § 506); see also 17 U.S.C. §

501(a).8

More specifically, by guaranteeing the moral rights of

"attribution" and "integrity," VARA "'protects both the reputations

of certain visual artists and the works of art they create.'"

Carter, 71 F.3d at 83 (quoting House Report at 6, as reprinted in

1990 U.S.C.C.A.N. at 6915). Before discussing the precise contours

of these rights, we consider whether, as a threshold matter, the

indisputably unfinished "Training Ground for Democracy" was a "work

of visual art" within the meaning of VARA.

8
Section 501(a) states, in relevant part, that "[a]nyone who
violates any of the exclusive rights of the copyright owner . . .
or of the author as provided in section 106A(a) [VARA] . . . is an
infringer of the copyright or right of the author, as the case may
be." The provision further states that, with the exception of the
criminal penalties provided under section 506, "any reference to
copyright shall be deemed to include the rights conferred by
section 106A(a)."

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C. Does VARA Apply to Unfinished Works of Art?

Büchel argues that the district court erred by failing to

recognize that VARA applies with equal force to incomplete artistic

endeavors that would otherwise be subject to VARA protection. He

asserts that the Act's plain language compels such a conclusion,

which he claims is confirmed by the legislative history and sparse

case law interpreting the statute. The Museum, for its part, does

not argue that unfinished works are excluded from VARA's scope.

Instead, it interprets the district court's opinion as "expressly

assum[ing]" that VARA applied to "Training Ground for Democracy" in

its incomplete state, and then concluding that Büchel had failed to

put forth sufficient evidence to raise a triable issue regarding

the violation of his rights under the statute.

We do not read the district court's ruling to conclude

categorically that VARA does not apply to unfinished works.

Rather, the court held that, if the statute applied, "display of

th[e] unfinished installation would have violated neither Büchel's

right of attribution nor his right of integrity." 565 F. Supp. 2d

at 259. Nonetheless, the court repeatedly expressed skepticism

about Büchel's claim that the incomplete "Training Ground" fell

within VARA's scope, observing at one point in its opinion that

"unfinished art may not be covered by VARA at all." Id. at 258;

see also id. at 259 ("[I]t is doubtful that VARA even covered the

assembled materials that constituted this unfinished

-22-
installation."). Moreover, the court qualified the statute's

application to unfinished works: "To the extent that an artist

seeks protection for an uncompleted work, a violation of one of

VARA's two explicitly recognized rights must be demonstrated with

special clarity." Id. at 258.

Our review of the district court's interpretation of

VARA is de novo. Phillips, 459 F.3d at 139. "'As in all statutory

construction cases, we begin with the language of the statute,'"

id. (quoting Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450

(2002)), and "[i]f the meaning of the text is unambiguous our task

ends there as well," United States v. Godin, 534 F.3d 51, 56 (1st

Cir. 2008). "If the statute's language is plain, the sole function

of the courts - at least where the disposition required by the text

is not absurd - is to enforce it according to its terms." In re

Rudler, 576 F.3d 37, 44 (1st Cir. 2009) (quotation marks and

citations omitted).

The definition of a "work of visual art" for VARA

purposes is stated "in terms both positive (what it is) and

negative (what it is not)." Carter, 71 F.3d at 84. An unfinished

sculptural installation such as "Training Ground for Democracy" is

not one of the items specifically excluded from VARA protection,9

9
As provided in 17 U.S.C. § 106A(c)(3), VARA specifically
excludes certain categories of artwork listed in section 101 of the
Copyright Act:

(A) (i) any poster, map, globe, chart, technical

-23-
and MASS MoCA wisely does not attempt to argue otherwise. Instead,

we must determine whether the "positive" aspect of the definition

of "work of visual art" includes an unfinished version of a

"sculpture[] existing in a single copy." 17 U.S.C. § 101.

The text of VARA itself does not state when an artistic

project becomes a work of visual art subject to its protections.

However, 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). A work is "fixed" when it has

been formed, "by or under the authority of the author," in a way

drawing, diagram, model, applied art, motion
picture or other audiovisual work, book,
magazine, newspaper, periodical, data base,
electronic information service, electronic
publication, or similar publication;
(ii) any merchandising item or advertising,
promotional, descriptive, covering, or
packaging material or container;
(iii) any portion or part of any item
described in clause (i) or (ii);

(B) any work made for hire

17 U.S.C. § 101.

-24-
that is "sufficiently permanent or stable to permit it to be

perceived, reproduced, or otherwise communicated for a period of

more than transitory duration." Id.

Not surprisingly, based on section 101's general

definitions, courts have held that the Copyright Act's protections

extend to unfinished works. See, e.g., Dumas v. Gommerman, 865

F.2d 1093, 1097 (9th Cir. 1989), rejected on other grounds by

Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739,

742 n.8 (1989); Zyware, Inc. v. Middlegate, Inc., No. 96 Civ. 2348

(SHS), 1997 WL 685336, at *4 (S.D.N.Y. Nov. 4, 1997) (noting that

there is "no requirement that a work be complete before it is

protected by the Copyright Act"); Playboy Enters. Inc. v. Dumas,

831 F. Supp. 295, 314 (S.D.N.Y. 1993) ("[T]he [Copyright] Act

protects works in progress."), modified on other grounds by 840 F.

Supp. 256 (S.D.N.Y. 1993), aff'd in part, rev'd in part by 53 F.3d

549 (2d Cir. 1995).

Reading VARA in accordance with the definitions in

section 101, it too must be read to protect unfinished, but

"fixed," works of art that, if completed, would qualify for

protection under the statute.10 To conclude otherwise would be

10
Nothing in the language of VARA or the definitions provision
of the Copyright Act permits distinct treatment for the rights of
copyright owners whose works are complete and those whose works are
still in progress. We therefore reject the "special clarity"
standard articulated by the district court for proving a violation
of an artist's VARA rights in an unfinished work of art.

-25-
"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 omitted).

At least one circuit has previously assumed VARA's applicability to

unfinished works. See Carter, 71 F.3d at 83-88 (discussing VARA

claims stemming from an unfinished, walk-through sculpture being

installed in the lobby of a building).11

Our conclusion that the statute's plain language extends

its coverage to unfinished works makes it unnecessary to delve into

VARA's legislative history. We nonetheless note that we have

looked closely at that history, and it fully supports our reading

of the plain language. Common sense points in the same direction.

Moral rights protect the personality and creative energy that an

artist contributes to his or her work. That convergence between

artist and artwork does not await the final brush stroke or the

placement of the last element in a complex installation. See,

e.g., Monica Pa & Christopher J. Robinson, Making Lemons out of

Lemons: Recent Developments in the Visual Artists Rights Act, 3

Landslide 22, 24 (Jan./Feb. 2009) ("[T]he history of art is full of

sublime 'unfinished' works of art, such as Leonardo da Vinci's

Statue of a Horse (begun 1488), Michelangelo's Tomb of Pope Julius

II (begun 1505), or El Greco's The Vision of St. John (1608-14).");

11
The Second Circuit ultimately found that the sculpture was
exempted from VARA protections because it was a "work for hire."
See 71 F.3d at 86-88.

-26-
Laura Flahive Wu, Massachusetts Museum of Contemporary Art v.

Büchel: Construing Artists' Rights in the Context of Institutional

Commissions, 32 Colum. J.L. & Arts 151, 163 (2008) (noting that

"many works are considered 'art' even though they capture creative

expression short of an artist's ultimate realization of that

expression").

We thus hold that VARA protects the moral rights of

artists who have "created" works of art within the meaning of the

Copyright Act even if those works are not yet complete.12

III.

Given Büchel's right to protection under VARA for his

artistic investment in a partially completed artwork, we must now

assess the district court's ruling that Büchel failed to raise a

genuine issue of material fact with respect to any of his claims.

We review the district court's grant of summary judgment de novo.

Insituform Techs., Inc. v. Am. Home Assur. Co., 566 F.3d 274, 276

12
Our decision in Phillips is not inconsistent with this
holding. In Phillips, we held that VARA did not apply to site-
specific works of art, in which the particular location of the
artwork is one of its physical elements and removal of the artwork
destroys it. 459 F.3d at 140. We observed that VARA does not
explicitly address protection for site-specific works despite the
impact of such works on real property interests, id. at 142, and we
declined to interpret VARA in a way that was neither supported by
the statutory language nor sensible as policy. See id. at 142-43.
Here, the plain language controls, and there is no conflict with
"'long-established and familiar principles'" of the common law.
Id. at 142 (quoting United States v. Texas, 507 U.S. 529, 534
(1993)).

-27-
(1st Cir. 2009). "The presence of cross-motions neither dilutes

nor distorts this standard of review." Scottsdale Ins. Co. v.

Torres, 561 F.3d 74,77 (1st Cir. 2009) (quotation marks and

citations omitted); see also Littlefield v. Acadia Ins. Co., 392

F.3d 1, 6 (1st Cir. 2004) ("Cross motions simply require us to

determine whether either of the parties deserves judgment as a

matter of law on facts that are not disputed.") (quotation marks

and citation omitted). Summary judgment is appropriate where

"there is no genuine issue as to any material fact" and "the movant

is entitled to judgment as a matter of law." Fed. R. Civ. P.

56(c)(2); see also Sullivan v. City of Springfield, 561 F.3d 7, 14

(1st Cir. 2009). "A dispute is 'genuine' if the evidence about the

fact is such that a reasonable jury could resolve the point in

favor of the non-moving party. A fact is 'material' if it has the

potential of determining the outcome of the litigation."

Scottsdale Ins. Co., 561 F.3d at 77 (citation omitted).

We first consider Büchel's claims asserting violations of

his attribution and integrity rights under VARA and then address

his claims under other provisions of the Copyright Act, which

assert violations of his rights to control the display of the

installation and to create derivative works based on it.

-28-
A. The Scope of VARA's Integrity and Attribution Rights

1. The Right of Integrity

VARA's right of integrity, codified at 17 U.S.C.

§ 106A(a)(3)(A), provides that an artist shall have the right "to

prevent any intentional distortion, mutilation, or other

modification of [his or her] work which would be prejudicial to his

or her honor or reputation, and [that] any intentional distortion,

mutilation, or modification of that work is a violation of that

right." It thus allows artists to protect their works against

intentional modifications that would be prejudicial to their honor

or reputations. House Report at 6, as reprinted in 1990

U.S.C.C.A.N. at 6915.13

There is arguably some uncertainty about the plaintiff's

burden of proof in a case such as this because the second part of

section (a)(3)(A) – stating that "any intentional distortion,

mutilation, or modification of th[e] work is a violation" of the

right of integrity – does not explicitly require a showing of

prejudice when the alteration already has occurred and damages,

rather than injunctive relief, would be the appropriate remedy.

See 5 Patry, supra, § 16:22 (noting the ambiguity). Because those

VARA cases that make it to court are "generally . . . decided on

13
In some jurisdictions, the right of integrity also generally
protects artwork from destruction. See Carter, 71 F.3d at 81. In
the United States, however, VARA protects only works of "recognized
stature" from destruction. 17 U.S.C. § 106A(a)(3)(B). That right
is not implicated in this case.

-29-
threshold questions such as whether the artist's work is a work of

visual art within the scope of the Act," Pa & Robinson, supra, at

26, courts have had little occasion to give content to the rights

that VARA guarantees. See Wu, supra, at 159 ("[C]ourts avoid

construing the extent of VARA protection by finding that works do

not meet the threshold requirements for 'visual art' protected by

VARA."). Unsurprisingly, therefore, we have found no case law

discussing a possible difference in the showing required for

injunctive relief and damages for right-of-integrity claims.

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").

Interestingly, Nimmer raises, and dismisses, a different

imprecision in section (a)(3)(A):

The statutory language – "distortion,
mutilation, or other modification of the work

-30-
 which would be prejudicial to his or her honor
or reputation" – is susceptible of a reading
whereby the requisite prejudice applies only
to "modification," not to the antecedents of
"distortion" or "mutilation." Though not
without ambiguity, the better view under the
Berne Convention, from which this language is
drawn, is that prejudice applies in all three
instances.

Id.

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. Under the heading "Purpose of the

Legislation," the House Report notes that the right of integrity

"allows artists to protect their works against modifications and

destructions that are prejudicial to their honor or reputations."

House Report at 6, as reprinted in 1990 U.S.C.C.A.N. at 6915. The

Report also notes that the rights provided by VARA are "analogous

to those protected by Article 6bis of the Berne Convention," id.,

which in turn describes the right of integrity as applicable to

"certain modifications and other derogatory actions" that would be

prejudicial to the artist's honor or reputation.14 Given the stated

14
Article 6bis of the Berne Convention, which is titled "Moral
Rights," includes a heading that lists among those rights "to
object to certain modifications and other derogatory actions." The
provision itself states, in relevant part:

(1) Independently of the author's economic rights, and
even after the transfer of the said rights, the author
shall have the right . . .to object to any distortion,
mutilation or other modification of, or other derogatory

-31-
purpose of the legislation and the similar depiction of the

integrity right in the Berne Convention, we conclude that Congress

intended the prejudice requirement to apply to the right of

integrity whether the remedy sought is injunctive relief or

damages.15

Although VARA does not define the terms "prejudicial,"

"honor," or "reputation," the House Report recommended that the

prejudice inquiry "focus on the artistic or professional honor or

reputation of the individual as embodied in the work that is

protected," and "examine the way in which a work has been modified

and the professional reputation of the author of the work." House

action in relation to, the said work, which would be
prejudicial to his honor or reputation.

Berne Convention for the Protection of Literary and Artistic Works
art. 6bis, Sept. 9, 1986, S. Treaty Doc. No. 99-27, 1161 U.N.T.S.
30.
15
Based on revisions to the statutory language made during the
legislative process, Patry concludes that "where an intentional
distortion, mutilation, or other modification has already occurred,
the plaintiff need not prove harm to his or her honor or
reputation." 5 Patry, supra, § 16:22. He further states, without
supporting citation, that "[i]t was understood informally" that the
final version of the provision was designed "to permit a cause of
action . . . without the need for proof that the artist's honor or
reputation was harmed." Id. To the extent Patry's conclusion is
that no evidence of harm is necessary, we reject it as inconsistent
with the available legislative history, as discussed above. It may
be, however, that Congress's concern was only that a plaintiff not
be required to prove the actual amount of damage to reputation, but
could opt for the statutory damages remedy upon showing prejudice.
See 17 U.S.C. §§ 501(a), 504(c) (stating that a VARA plaintiff may
elect to recover statutory damages instead of actual damages and
profits).

-32-
Report at 15, as reprinted in 1990 U.S.C.C.A.N. at 6925-26

(footnotes omitted). Relying on dictionary definitions of

prejudice, honor and reputation, the district court in Carter

concluded that it should "consider whether [the proposed]

alteration would cause injury or damage to plaintiffs' good name,

public esteem, or reputation in the artistic community." 861 F.

Supp. at 323. We think this a useful approach, but emphasize that

the focus is on the artist's reputation in relation to the altered

work of art; the artist need not have public stature beyond the

context of the creation at issue. See House Report at 15, as

reprinted in 1990 U.S.C.C.A.N. at 6925 ("[A]n author need not prove

a pre-existing standing in the artistic community.").

2. The Right of Attribution

VARA's right of attribution grants the author of a work

of visual art the right, in part, (1) "to claim authorship of that

work"; (2) "to prevent the use of his or her name as the author of

any work of visual art which he or she did not create"; and (3) "to

prevent the use of his or her name as the author of the work of

visual art in the event of a distortion, mutilation, or other

modification of the work which would be prejudicial to his or her

honor or reputation." 17 U.S.C. § 106A(a)(1),(2). The right

"ensures that artists are correctly identified with the works of

art they create, and that they are not identified with works

created by others." House Report at 6, as reprinted in 1990

-33-
U.S.C.C.A.N. at 6915. In addition, if a work of visual art has

been distorted or modified (and, unlike the integrity right, the

original distortion or modification need not be intentional),

associating the author's name with the distorted work against his

wishes would violate his right of attribution.

The right of attribution under VARA thus gives an artist

a claim for injunctive relief to, inter alia, assert or disclaim

authorship of a work. Whether VARA entitles an artist to damages

for violation of the right of attribution is a separate question.

We find the answer in the difference between the statutory language

on the right of integrity and the language on the right of

attribution. Subsection (a)(3) of section 106A, which codifies the

right of integrity, is further divided into two subsections: (A)

confers the right to protect the work against intentional

alterations that would be prejudicial to honor or reputation, and

(B) confers the right to protect a work of "recognized stature"

from destruction.16 Although both subsections are framed as rights

"to prevent" certain conduct, they both also contain an additional

clause stating that the occurrence of that conduct is, at least in

certain circumstances, "a violation of th[e] right" to prevent the

16
Section 106A(a)(3) states that the author of a work of
visual art shall have the right "(A) to prevent any intentional
distortion, mutilation, or other modification of that work which
would be prejudicial to his or her honor or reputation" and the
right "(B) to prevent any destruction of a work of recognized
stature."

-34-
conduct from happening. See 17 U.S.C. § 106A(a)(3)(A) ("any

intentional distortion, mutilation, or modification of that work is

a violation of that right"); id. at § 106(a)(3)(B) ("any

intentional or grossly negligent destruction of that work is a

violation of that right").

No such "violation" clause is included in the sections

codifying the right of attribution. See Nimmer, supra, at

§ 8D.06[B][1] ("The statute does not make any provision to redress

violation of any of the foregoing three attribution rights."). The

legislative history sheds no light on this difference, but Nimmer

speculates as follows:

Perhaps the implication is that whereas an
integrity violation could give rise to a
monetary recovery, failure to attribute is
remediable solely through injunction. If that
conclusion were intended, Congress certainly
could have expressed its intent less
obliquely.

Id. 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.

-35-
 It is also noteworthy that Congress crafted a damages

remedy for the destruction of a work of recognized stature that is

narrower than the right to prevent destruction of such works.

While an artist may "prevent any destruction of a work of

recognized stature," only an "intentional or grossly negligent

destruction of that work is a violation of that right." 17 U.S.C.

§ 106A(a)(3)(B) (emphasis added). This narrowing further indicates

that Congress did not intend a damages remedy to arise

automatically from the right to prevent conduct. In failing to

provide a damages remedy for any type of violation of the moral

right of attribution, Congress may have concluded that artists

could obtain adequate relief for the harms of false attribution by

resorting to the Copyright Act and other traditional claims.

B. Büchel's VARA Claims

With this legal framework in mind, we turn to the record

before the district court. By dismantling "Training Ground," the

Museum prevented the further use of Büchel's name in connection

with the work, eliminating any basis for injunctive relief, and we

therefore do not address the attribution claim in our VARA

analysis. We thus consider the evidence in the light most

favorable to Büchel in determining whether there are genuine issues

of material fact regarding the alleged violations of his right of

integrity.

-36-
 As noted above, the district court concluded that

Büchel's right of integrity was not implicated by MASS MoCA's

conduct. The court found that "nothing in MASS MoCA's planned

display of the unfinished installation 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." 56 F. Supp. 2d at 260. Although the court stated that

it would assume that VARA applied to unfinished works, its analysis

appears to be influenced by a more limited view of the statute's

scope. The court stated that "[t]o suggest that the display of an

unfinished and abandoned work somehow constitutes a distortion,

mutilation, or modification of that non-existent work is simply

inconsistent with the ordinary usage of those terms." Id. Having

concluded that VARA applies with full force to unfinished works,

however, we cannot accept the district court's reliance on the

unfinished state of "Training Ground" to minimize the rights of its

creator.

It cannot be disputed that, at least by the time Büchel

left North Adams in December 2006, "Training Ground" was "fixed"

within the meaning of the Copyright Act – i.e., materials had been

placed in Building 5 "by or under the authority of the author" in

a "sufficiently permanent or stable" manner to allow the work to be

"communicated for a period of more than transitory duration." 17

U.S.C. § 101. The elements of the installation had been chosen by

-37-
Büchel, and his assistants and the Museum workers had put numerous

components of the project in place under his direct supervision.

Although far from complete, the work by the end of 2006 included

parts of the "Saddam Compound" and the cinema, and Büchel and his

assistants had begun detailing several of the containers intended

to house elements such as a jail, museum and voting booths. With

this substantial work in place, the sculpture had an established

presence in Building 5. Büchel thus had rights in the work that

were protected under VARA, notwithstanding its unfinished state.

Büchel alleges that MASS MoCA violated his right to

integrity in three distinct ways: first, by continuing to work on

the installation without his authorization, particularly in early

2007, and by then exhibiting the distorted artwork to the public;

second, by using tarpaulins to "partially cover[]" – and thus

modify and distort – the installation, and allowing Museum visitors

to see it in that condition; and third, merely by showing Büchel's

work in its unfinished state, which he claims was a distortion.

Büchel asserts that these actions caused prejudice to his honor or

reputation.

As we shall explain, we conclude that summary judgment

was improperly granted to MASS MoCA because material disputes of

fact exist concerning the first of Büchel's integrity claims –

i.e., that MASS MoCA modified "Training Ground" over his

objections, to his detriment. We further conclude that the record

-38-
contains sufficient evidence to allow a jury to find that MASS

MoCA's actions caused prejudice to Büchel's honor or reputation.

The other integrity claims, however, are unavailing.

1. Continuing Work on "Training Ground"

Büchel asserts that, in the months following his

departure from North Adams in December 2006, the Museum encroached

on his artistic vision by making modifications to the installation

that in some instances were directly contrary to his instructions.

In rejecting Büchel's VARA claims, the district court described the

Museum's actions as perhaps "occasionally misguided" attempts "to

implement Büchel's long-distance instructions." 565 F. Supp. 2d at

260. The court found that these "[f]umbled efforts to assist in

creating, or failing to create, a work of art are not equivalent to

distortion, modification, or mutilation of the art." Id. at 260-

61.

Although a jury might agree with the court's assessment,

the evidence viewed in the light most favorable to Büchel would

allow a finding that at least some of the Museum's actions violated

VARA. The record permits the inference that, even during his time

as an artist-in-residence at MASS MoCA, Museum staff members were

disregarding his instructions and intentionally modifying "Training

Ground" in a manner that he did not approve. For example, on

December 14, 2006, just before he left for the holidays, Büchel

complained to Thompson that in "many cases people just do stuff

-39-
without checking back if its ok to do s[omething], when they think

by themselves the plan has to be changed." Büchel expressed

further concerns in an email to Thompson later that month: "I don't

[k]now if this is really a great opportunity when you get an

invitation to do a show, where you have to make constantly tons of

compromises, where you have to fight constantly against

stubborn[n]ess as well [as] against the institution and work with

people that think they know my art better than i do as well [as]

try to sabotage the project . . . ."

In early 2007, when he was no longer on-site, Büchel

again accused the Museum of "sabotage acts" and, in a January 16

letter, issued an ultimatum: he would return to North Adams to

complete "Training Ground" only if the Museum assented to a number

of specific conditions. Aside from certain budgetary concerns

irrelevant here, Büchel included the following among his list of

demands:

There is NO negotiation about the scope
of the project.
There are no elements to be eliminated
as you propose and I don't accept any orders
and any more pressure or compromises how
things have to be done, neither from you or
your crew . . . .
I will not give you any permission to
show an unfinished project nor will I show nor
let you show any work in progress, as you
proposed already earlier.
I will not accept without consequences
any additional sabotage acts, as done to
artworks of mine and as well done to the
installation in progress[.]

-40-
The letter also identified several points of disagreement with the

Museum concerning the content of the project, including Büchel's

insistence that there be "no transport street through the

exhibition" and that he did not "need to be told if an airplane

fuselage section fits in the show or not. I don't negotiate

constantly my art with you or Nato . . . ." Accusing the Museum

director of showing "little respect towards [his] plans," he told

Thompson "please don't tell me all the time how I have to do my

project regarding its scope and it's [sic] methods that needs [sic]

to be applied."

Unsatisfied with the Museum's response to his list of

demands, Büchel wrote to Thompson again on January 27, 2007. He

warned that, based on the information he had been provided, "there

[was] a lot of stuff not being done according to my instructions."

Again, he noted several elements of the work that had been

installed against his wishes.17 Thompson and Büchel traded emails

during the first few days of February, with Büchel stating that he

would "not negotiate further this matter . . . because almost any

of the main conditions are simply not fulfilled" and Thompson

writing that he believed the Museum had "responded to [Büchel's]

main issues."

17
"I wrote very clearly immediately to [Dante Birch, the
Museum's production manager] not to use the method we talked about
and stop it . . . , as well cinder block walls have to be partly
redone that have been built without my instruction . . . ."

-41-
 After that, direct communication between Büchel and the

Museum became sparse. It was during this time, Büchel alleges,

that the Museum developed a "Plan B"18 to be implemented in the

event – which was looking increasingly likely – that he did not

return to finish the exhibit. Plan B, which involved publicly

exhibiting the unfinished installation without the artist's

permission, called for completing various elements of the

installation in a way the Museum knew might differ from Büchel's

artistic concept. Büchel cites an email chain on February 14 that

included Joseph Thompson and Dante Birch, in which Thompson,

stating that the Museum "seem[ed] to be getting closer and closer

to Plan B," gave specific instructions on various elements of the

installation. Thompson suggested that Museum staff do "[a]nything

else Dante and Nato feel is known with 80% certainty."

At least some Museum staff members recognized that

continuing to work on the installation without Büchel's input might

be problematic. Later in the February 14 email chain, Dante Birch

noted that he was “interested in protecting the museum from

intellectual property issues.” Pointing out that the show was

advertised as a Büchel in the Museum's schedule, he stated that

when reviewers came, "the question will be 'what is it?' . . . and

if it's reviewed as a Buchel we’re in deep shit.” Thompson’s plans

18
The term "Plan B" appears in the record in a February 14,
2007 email from Thompson to other Museum staff.

-42-
also raised concern among other MASS MoCA employees, including

curator Susan Cross, who cautioned Thompson in a January 31 email

that "we tend to forget that whether we're doing the welding or

not, there is an 'author' – an artist for whom we shouldn't make

decisions. . . . At what point, if at all, does an artist lose his

right to owning the idea and his/her 'intellectual property?' . . .

I think it is still art and still belongs to Buchel."

Both in his deposition and in his affidavit, Büchel

described ways in which he felt the Museum had knowingly

disregarded his specific instructions. For example, MASS MoCA's

decision to build a cinderblock wall through the Cape Cod-style

house in the installation, despite Büchel’s expressed desire that

the construction await his return, resulted in what Büchel

considered a "big distortion of the meaning of that element."

The record is replete with similar allegations concerning other

components of the installation, including the cinema, the bomb

carousel, the Saddam spiderhole, the police car and the mobile

home. Indeed, even the Museum, in its August 31, 2007 memorandum

of law in support of its motion for summary judgment, admitted that

the installation "[m]aterials as they now stand reflect significant

aesthetic and design choices by MASS MoCA personnel, including with

respect to the layout of the [m]aterials, and with respect to the

selection and procurement of pre-existing buildings and vehicles

-43-
that have been modified and incorporated into the [m]aterials."

(Emphasis added.)19

MASS MoCA argues that the evidence, taken in its

entirety, does not add up to a triable issue with respect to a

violation of Büchel’s right of integrity, but shows only that

Museum personnel were attempting to carry out Büchel's vision based

on his instructions. Indeed, the Museum notes that the work slowed

as Büchel’s instructions became unavailable.20 MASS MoCA

specifically disputes Büchel's reading of the February 14 email

chain as demonstrating the Museum's disregard of his creative

19
This assertion by MASS MoCA was made to support its
contention, rejected by the district court and halfheartedly
renewed on appeal, that the unfinished installation might
constitute a joint work of Büchel and the Museum. A claim of joint
authorship requires proof that the parties "entertain in their
minds the concept of joint ownership." Thomson v. Larson, 147 F.3d
195, 201 (2d Cir. 1998) (quotation marks and citation omitted).
Here, multiple facts indicate that the parties' understanding from
the outset was that "Training Ground" was solely a Christoph Büchel
work of art. The Museum's December 6, 2006 postponement
announcement described the work as "Christoph Büchel's vast
installation" and, as reflected in the emails described above,
Museum personnel internally recognized Büchel as the artist, at
least as "Training Ground" was originally conceived. It is also
undisputed that, at the outset of their relationship, the parties
had agreed that Büchel alone would hold the copyright in the
finished work. These facts negate any claim of joint authorship.
20
In his deposition, Thompson testified as follows:

[T]here was a whole long list of things for which we had
adequate direction and understanding that we could
continue forward to a certain point. When the work began
to get very detailed and would require input from
Christoph, if we could get the input from him, we would
continue, and if we didn't, we would stop.

-44-
rights over the installation, asserting that the discussion among

its staff members in fact reflects a conscious effort to determine

how far the Museum could appropriately go in light of the remaining

instructions left by the artist. In one email, for example,

Thompson noted that "we are putting the correct objects in the

spaces cb indicated . . . . That's not 'doing a buechel [sic]'

that's prepping for buechel [sic] assuming, as we still are, that

there is some chance we'll see him here again." Other

communications in the record also could be interpreted as showing

the Museum doing its best to carry out Büchel’s concept for the art

work.

As we have noted, a jury may well accept the Museum's

depiction of its intention and its actions. At this juncture,

however, the record must be viewed in the light most favorable to

Büchel. The evidence we have described would permit a jury to find

that the Museum forged ahead with the installation in the first

half of 2007 knowing that the continuing construction in Büchel's

absence would frustrate – and likely contradict – Büchel's artistic

vision. We thus conclude that a jury issue exists as to whether

these actions effected an intentional distortion or other

modification of "Training Ground" that subjected MASS MoCA to

liability under VARA.

The record also contains evidence from which a jury could

conclude that the Museum's alterations had a detrimental impact on

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Büchel's honor or reputation. An article in the Boston Globe

reported that, in February, Museum officials had shown the

unfinished project to a group of Museum directors and curators who

were attending an arts conference in the area. See Geoff Edgers,

Behind doors, a world unseen: Dispute cloaks massive installation

at MASS MoCA, Boston Globe (March 28, 2007), available at

www.boston.com/ae/theater_arts/articles/2007/03/28/behind_doors_a

_world_unseen/ ("Behind doors, a world unseen"). Another

journalist reported on observing the unfinished (and still

untarped) work. See The Show Will Go On, supra.

Although the commentary generated by these visits is not

all negative,21 there was sufficient evidence for a jury to find

that the changes to "Training Ground" caused prejudice to Büchel.

The New York Times noted that the exhibition would "certainly give

people unfamiliar with his obsessive, history-driven aesthetic an

inaccurate sense of his art, and this is indeed a form of damage."

Is It Art Yet?, supra. A critic for the Boston Globe similarly

observed that "many people are going to judge [Büchel] and his work

on the basis of this experience." Ken Johnson, No admittance: MASS

MoCA has mishandled disputed art installation, Boston Globe, July

1, 2007, at 1N. One viewer, writing in Commentary magazine,

21
Thompson told an outside consultant for the Museum in March
2007 that a curator at the New Museum in New York had just viewed
the installation "and said it was one of the best works he's seen
in the past three years."

-46-
observed that “I am not sure that it suffers from being enveiled.”

Michael J. Lewis, The Cost of Transgression,

http://www.commentarymagazine.com/blogs/index.php/lewis/499 (June

4, 2007). A review published in Berkshire Fine Arts – subtitled

"Crap Under Wrap" – concluded that it would be a "huge mistake" to

uncover the installation, which offered "virtually nothing of

substance or interest." Crap Under Wrap, supra.

The record thus shows that some viewers of the

installation reacted unfavorably to the work in its allegedly

modified and distorted form. A factfinder might conclude, of

course, that it was Büchel's underlying concept (notwithstanding

its unfinished state) rather than MASS MoCA's actions that elicited

the negative reactions. However, a jury could also reasonably

infer that the negative impressions resulted from the Museum's

unauthorized modifications to "Training Ground," diminishing the

quality of the work and thereby harming Büchel's professional honor

or reputation as a visual artist.

In concluding that Büchel has adduced sufficient

evidence to support a right-of-integrity claim, we reject the

Museum’s assertion that to find a violation of Büchel's right of

integrity in these circumstances would make it impossible for

parties to collaborate on large-scale artistic works. The Museum

warns that, under Büchel’s interpretation, "no one other than the

artist himself . . . may ever perform any work in fabricating

-47-
visual art unless that specific task has been authorized by the

artist." We disagree. Although the artist's vision must govern,

that principle does not prevent collaboration at the implementation

level so long as the artist's vision guides that implementation.

Here, Büchel alleges a campaign of intentional distortion and

modification to his work in which Museum personnel repeatedly

ignored his express wishes. Our holding that the summary judgment

record precludes an affirmance of the district court on this claim

may serve as a cautionary tale to museums contemplating similar

installations in the future – guiding them to document the terms of

their relationship and obtain VARA waivers where necessary – but it

does not prevent museums or other collaborators from working

cooperatively with artists on such non-traditional artworks.

2. Showing "Training Ground" Covered with Tarpaulins

Büchel also claims that MASS MoCA improperly modified and

distorted “Training Ground” when it partially covered it with the

yellow tarpaulins and displayed it in that condition. He asserts

that the record shows beyond dispute that visitors looked behind

the tarps, that the tarp-adorned installation was "judged by others

to be Büchel's work, and that his honor and reputation were harmed

by it." In response, the Museum argues that the yellow tarpaulins

were merely functional – a way of keeping people "out" of the

installation – rather than an aesthetic modification of the artwork

that gave MASS MoCA patrons a distorted view of it.

-48-
 Although the tarpaulins did prevent visitors to the

Museum from seeing the entire unfinished installation, the record

shows that a number of people were able to form an impression of

"Training Ground" despite the partial covering. For example,

according to one observer,

[the tarps] 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.
Beyond 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.

Thomas Micchelli, Christoph Büchel Training Ground for Democracy,

The Brooklyn Rail (September 2007), available at

http://www.brooklynrail.org/2007/09/artseen/buchel. Another critic

noted that the installation “under all the tarps is really kind of

a conceptual peep show. It doesn’t take much effort or imagination

to see most of the work . . . . Mass MoCA is hiding an elephant

behind a napkin,” and called it a “wink, wink, wrap show.” Crap

Under Wrap, supra. Photographs in the record confirm that the

covers did not obscure the general path and layout of the

installation. Indeed, given the location of "Training Ground,"

visitors to "Made at MASS MoCA" could not avoid seeing the

unfinished "Training Ground" bedecked in tarpaulins.

-49-
 Nonetheless, although the installation unquestionably

looked different with the tarpaulins partially covering it, we

agree with the district court that the mere covering of the artwork

by the Museum, its host, cannot reasonably be deemed an intentional

act of distortion or modification of Büchel's creation. To

conclude otherwise would be to say that, even if all had gone well,

the Museum would have been subject to a right-of-integrity claim if

it had partially covered the work before its formal opening to

prevent visitors from seeing it prematurely.

This is not to say that MASS MoCA was necessarily acting

with pure intentions when it created "Made at MASS MoCA" in close

proximity to the tarped "Training Ground." It might be a fair

inference that the Museum was deliberately communicating its anger

with Büchel by juxtaposing his unfinished work with the successful

artistic collaborations depicted in its new exhibition. The

partial covering of "Training Ground" may have been intended to

highlight, rather than hide, the failed collaboration.22 The right

of integrity under VARA, however, protects the artist from

distortions of his work, not from disparaging commentary about his

22
Indeed, the Boston Globe's art critic, Ken Johnson,
described the exhibit as a "self-serving photo and text display"
that implicitly conveys criticism of Büchel for the failure of
"Training Ground for Democracy." See MASS MoCA has Mishandled
Disputed Art Installation, supra. The juxtaposition left Johnson
with the impression that MASS MoCA was "exacting revenge" against
the artist "by turning his project into a show that misrepresents,
dishonors, vilifies, and even ridicules him." Id.

-50-
behavior. In our view, a finding that the Museum's covering of the

installation constituted an intentional act of distortion or

modification of Büchel's artistic creation would stretch VARA

beyond sensible boundaries.

3. Exhibiting "Training Ground" in Its Unfinished State

Büchel maintains that, even aside from the alleged

modifications to “Training Ground,” merely exhibiting the work of

art in its unfinished state, without the artist’s consent,

constitutes a distortion. We reject this claim. A separate moral

right of disclosure (also known as the right of divulgation)

protects an author's authority to "prevent third parties from

disclosing [his or her] work to the public without the author's

consent," and is not covered by VARA. See Cyrill P. Rigamonti,

Deconstructing Moral Rights, 47 Harv. Int'l L.J. 353, 373, 405

(2006) "([T]he VARA ignores the rights of disclosure and withdrawal

and instead focuses on the rights of attribution and integrity

. . . .").

Although Büchel proffered an expert who opined that

showing an unfinished work without the artist’s permission is

inherently a distortion, we decline to interpret VARA to include

such a claim where a separate moral right of disclosure is widely

recognized in other jurisdictions and Congress explicitly limited

the statute's coverage to the rights of attribution and integrity.

See Amy M. Adler, Against Moral Rights, 97 Cal. L. Rev. 263, 268

-51-
(2009) (noting that most European countries "recognize a right of

divulgation, giving the artist the right to decide when (and

whether) the work is complete and can be shown"); Rigamonti, supra,

at 356 ("The standard set of moral rights recognized in the

literature consists of the author's right to claim authorship

(right of attribution), the right to object to modifications of the

work (right of integrity), the right to decide when and how the

work in question will be published (right of disclosure), and the

right to withdraw a work after publication (right of withdrawal)."

(footnotes omitted)); 5 Patry on Copyright § 16:23 (noting that

VARA does not give the artist "a right to prohibit display of

mutilated versions of his or her work, only the right to prohibit

the mutilation itself"). Any right Büchel possesses to withhold

display of his artwork must be found outside VARA. We consider

below his claim to such a right under section 106(5) of the

Copyright Act. See infra Section IV.

4. Summary of VARA Claims

After careful review of the record, we are persuaded that

a reasonable jury could find that Büchel is entitled to relief

under VARA based on the Museum's continuing work on "Training

Ground" over his objections. Genuine disputes of material fact

foreclose summary judgment for either Büchel or MASS MoCA on that

claim. We find no merit, however, in Büchel's claim that MASS MoCA

intentionally modified or distorted "Training Ground" by covering

-52-
it with tarpaulins, and we reject as outside the scope of the

statute Büchel's claim that the Museum violated VARA by displaying

the installation over his objections. We affirm the district

court's grant of summary judgment for the Museum on Büchel's right-

of-attribution claim, which became moot when MASS MoCA dismantled

the installation in 2007.

IV.

We now assess Büchel's challenge to the grant of summary

judgment for MASS MoCA on his Copyright Act claims.

A. Public Display

The owner of a copyrighted work has the exclusive right

to "display the copyrighted work publicly." 17 U.S.C. § 106(5).

Displaying a work is defined as "show[ing] a copy of it, either

directly or by means of a film, slide, television image, or any

other device or process." 17 U.S.C. § 101. A "copy" includes the

original. Id. Büchel argued below, as he does on appeal, that the

Museum's repeated public exhibitions of "Training Ground for

Democracy" constituted a public display of his work in violation of

his exclusive right under section 106(5). The district court gave

no explicit reason for its dismissal of this claim, remarking only

that "[f]or the reasons already stated," presumably in its

discussion of VARA, MASS MoCA was "entitled to judgment on this

count." 565 F. Supp. 2d at 261.

-53-
 The court also remarked, however, that since Büchel

"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." Id. at 260. This statement reflects a misreading

of the Copyright Act. As we have explained, the moral rights

granted to specific artists under VARA are separate and independent

from the economic rights guaranteed by section 106. 17 U.S.C. §

106A(a) (providing that rights of attribution and integrity are

"independent of the exclusive rights provided in section 106").

Thus, the inadequacy of claims under VARA does not, on its own,

signify the inadequacy of more traditional copyright claims. See

Wu, supra, at 164 (observing that VARA has "acquired the attributes

of a false talisman," both because artists overly rely on it in

"instances where economic rights, including traditional rights of

copyright provided by Section 106 . . . would more effectively

protect their interests" and also because courts tend to view VARA

claims as "devalu[ing] entitlements to economic rights pleaded in

tandem with VARA claims").

We thus turn specifically to this claim. The Museum

argues that Büchel has failed to present a triable issue of fact on

his claim under section 106(5) because the unfinished work was

never publicly displayed. However, as we have described in the

context of our VARA discussion, there is significant record

-54-
evidence suggesting that the work was repeatedly and deliberately

exhibited to numerous individuals.23

MASS MoCA also asserts an affirmative defense under

section 109(c), which provides that "the owner of a particular copy

lawfully made under this title, or any person authorized by such

owner, is entitled, without the authority of the copyright owner,

to display that copy publicly." 17 U.S.C. § 109(c). The Museum

argues that it owned the physical copy of "Training Ground," and

that section 109(c) therefore permitted it to display the

unfinished work. Here again, however, the record reveals disputed

issues of fact with respect to whether the Museum's copy was

"lawfully made," as it may have been created in violation of the

artist's rights under VARA. Moreover, Büchel introduced evidence

to rebut the Museum's assertion that "the installation's various

components" all belonged to, or were purchased by, MASS MoCA.

Finally, Büchel presented evidence that the Museum understood that

the physical copy of the installation belonged to him.24

23
In addition to the journalists and Museum personnel noted
earlier, a newspaper reported that the mayor of North Adams had
seen the exhibit twice, once with Governor Deval Patrick. See
Behind doors, a world unseen, supra.
24
For example, in an email sent on September 11, 2006 to
curator Nato Thompson, the Museum's director (Joseph Thompson)
said: "I assume you've already laid out the general idea [to
Büchel] (we build it, and it belongs to you)," and also noted that
Büchel had the right to "sell all or part of it." The Museum's
proposed contract, which was never signed, would have conferred
ownership on Büchel. It stated that, "[u]pon termination of the
exhibition, the fabricated work shall be owned outright by you,

-55-
Accordingly, viewing the evidence in the light most favorable to

Büchel, we cannot say that a reasonable jury could not conclude

that the Museum violated his exclusive right to publicly display

"Training Ground for Democracy."

B. Derivative Works

The Copyright Act also grants artists the exclusive right

to "prepare derivative works based upon the copyrighted work." 17

U.S.C. § 106(2). A derivative work is defined as one "based upon

one or more preexisting works," such as a translation, musical

arrangement, fictionalization, "or any other form in which a work

may be recast, transformed, or adapted." 17 U.S.C. § 101. A

derivative work includes any work "consisting of editorial

revisions, annotations, elaborations, or other modifications which,

as a whole, represent an original work of authorship." Id. Büchel

brought two claims based on this provision, asserting that MASS

MoCA created unauthorized derivative works based on the

installation itself and on the work's models and plans.

The district court ruled that, "[e]ven assuming that the

stumbling, and eventually abandoned, process of collaboration

during 2006 produced an original work of art subject to copyright

protection, which is highly doubtful, clearly no 'derivative' work

of art was created by MASS MoCA's attempt (however flawed) to play

its part in this process." 565 F. Supp. 2d at 261. It further

including all copyrights and related preparatory materials."

-56-
rejected Büchel's argument that, by placing tarpaulins over the

unfinished installation, the Museum created a separate,

unauthorized derivative work. Id.

On appeal, Büchel summarily argues that what the Museum

displayed in Building 5, both with and without the yellow

tarpaulins, "recast" or "transformed" the work that he had

originally set out in his plans and left behind in December 2006,

thus creating derivative works under the Copyright Act.25 In

response, MASS MoCA again argues that its staff was following

Büchel's instructions when working on "Training Ground" in his

absence, and that the Museum therefore was merely executing

Büchel’s vision rather than exercising its own artistic judgment to

create a new, derivative artwork.

A derivative work within the meaning of the Copyright Act

"consists of a contribution of original material to a pre-existing

work so as to recast, transform or adapt the pre-existing work,"

and the variation from the original must be "sufficient to render

the derivative work distinguishable from its prior work in any

meaningful manner." Nimmer, supra, § 3.03[A]; see also Schrock v.

Learning Curve Int'l, Inc., 586 F.3d 513, 520-21 (7th Cir. 2009);

Woods v. Bourne Co., 60 F.3d 978, 990 (2d Cir. 1995). As we have

25
Our analysis of the right-of-integrity tarpaulin claim
disposes as well of Büchel's contention that covering the
installation constituted a modification of the original work that
resulted in the creation of a derivative work.

-57-
held, Büchel's contention that his work was modified without his

permission and to his detriment gives rise to a right-of-integrity

claim under VARA. Every modification of a work of art does not,

however, result in the creation of a derivative work.

In Büchel's 52-page opening brief, there is one paragraph

that purports to analyze the derivative work claim, and that

paragraph itself is largely descriptive rather than analytical.

Büchel cites no cases and does not explain how the modified

"Training Ground" was sufficiently original and distinctive within

the meaning of the Copyright Act to qualify as a derivative work.

His reply brief adds another paragraph, citing cases, but he again

asserts in summary fashion that the modifications resulted in a

derivative work. He states that the degree of creativity needed

for a derivative work is minimal, but does not explain how the

Museum's alterations create a new work that, as a whole, meets the

Copyright Act's originality requirement. The law applicable to

derivative work claims, particularly as it intersects with VARA's

protection for works of visual art, is complex. See, e.g., Lee v.

A.R.T. Co., 125 F.3d 580, 582-83 (7th Cir. 1997); Henry Hansmann,

Authors' and Artists' Moral Rights: A Comparative Legal and

Economic Analysis, 26 J. Legal Stud. 95, 114-116 (1997). Büchel's

undeveloped argument is so perfunctory that we deem the claim

waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.

1990) (stating that, on appeal, "issues adverted to in a

-58-
perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived").

V.

We summarize our holdings:

1. VARA's protection of an artist's moral rights extends

to unfinished creations that are "works of art" within the meaning

of the Copyright Act;

2. The right of integrity under VARA protects artists

from distortions, mutilations or modifications of their works that

are prejudicial to their reputation or honor, and prejudice must be

shown for both injunctive relief and damages;

3. Büchel has adduced sufficient evidence to raise a

genuine issue of material fact as to whether MASS MoCA violated his

right of integrity on one of his three asserted bases for

liability, namely, by modifying "Training Ground" over his

objections in a manner that harmed his honor or reputation. His

right-of-integrity claims based on the yellow tarpaulins and the

mere display of "Training Ground" lack merit;

4. Büchel's right-of-attribution claim is moot, as VARA

provides only injunctive relief to protect the right of attribution

and the installation no longer exists;

5. The record reveals a genuine issue of material fact

as to whether MASS MoCA violated Büchel's exclusive right under

section 106(5) of the Copyright Act to display his work publicly;

-59-
 6. Büchel fails to adequately develop his claim that

MASS MoCA violated his exclusive right under section 106(2) to

prepare derivative works based on "Training Ground," and that claim

is therefore waived.

We thus remand the case for further proceedings on

Büchel’s remaining right-of-integrity claim under VARA and his

public display claim under section 106 of the Copyright Act.

Affirmed in part, vacated in part, and remanded for

further proceedings consistent with this decision. Each party is

to bear its own costs.

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