Deciding “important and unsettled legal issues under the Visual Artists Rights Act” (VARA), the U.S. Court of Appeals for the First Circuit held that unfinished works are protected under VARA. VARA was enacted to protect “moral rights” in certain types of works, encompassing the artist’s right to attribute his name to a work and his right to protect the work’s integrity from deformation or mutilation. Massachusetts Museum of Contemporary Art Foundation, Inc. v. Büchel, Case No. 08-2199 (1st Cir., January 27, 2010) (Lipez, J.).

For a few years, the Massachusetts Museum of Contemporary Art (the Museum) and Christoph Büchel collaborated to create a football-field sized installation art exhibit. Büchel usually directed the exhibit’s construction remotely, while the Museum provided the staff, materials and items necessary to implement Büchel’s instructions. The parties’ relationship “steadily deteriorate[ed]” and the project was never finished. The Museum cancelled the exhibit, but simultaneously (and conveniently) announced a new exhibit highlighting the pitfalls between artists and institutions during collaborative projects. Unfortunately, the parties never memorialized in writing the intellectual property rights underlying their collaboration, and litigation ensued.

The United States District Court for the District of Massachusetts granted the Museum declaratory relief, permitting it to continue displaying the unfinished installation. The court held that VARA, absent any agreement otherwise, does not protect an artist who abandons a collaborative project in which he remotely directed the construction of the work on someone else’s property with someone else’s resources and staff. Accordingly, Büchel could not use VARA to dictate the rights and actions of the Museum with respect to the abandoned, incomplete work, so long as it was not labeled as Büchel’s work. Büchel appealed.

After highlighting the lower court’s skepticism that an unfinished work is even covered under VARA, the First Circuit held that VARA protects unfinished works that are “works of art” under the Copyright Act. Although unfinished installations are not explicitly included or excluded in VARA, VARA is a part of the Copyright Act, which provides that a work is protectable when it is fixed. Generally, fixation occurs when a work has been formed by or under an artist’s authority into a permanent or stable form. For works prepared over a period of time, whatever is fixed at any particular time constitutes a protectable work, albeit incomplete. Because the Copyright Act protects unfinished works, so too does VARA. For this and other reasons, summary judgment for the Museum was inappropriate.

Practice Note: In any collaboration, always memorialize the agreement and explicitly and clearly address intellectual property rights—uncertainty in these rights may lead to costly litigation in the unfortunate event that the relationship between the parties sours.