MASS MoCA's Affirmative Defenses and Email Correspondence

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x MASSACHUSETTS MUSEUM OF CONTEMPORARY ART FOUNDATION, INC., Plaintiff, v. CHRISTOPH BÜCHEL, Defendant.

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Civil Action No. 3:07-cv-30089-MAP JURY TRIAL DEMANDED

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PLAINTIFF'S REPLY TO DEFENDANT'S COUNTERCLAIMS

Plaintiff Massachusetts Museum of Contemporary Art Foundation, Inc. ("MASS

MoCA") replies to the counterclaims set forth in the Answer And Counterclaims Of Christoph

Büchel upon knowledge as to itself and otherwise upon information and belief as follows:

("Introduction.") MASS MoCA avers that the three-page portion of the Answer

And Counterclaims Of Christoph Büchel that is entitled "Introduction" contains legal

conclusions to which no response is required. To the extent that a response is deemed required,

MASS MoCA denies each and every allegation contained in the Introduction, except that MASS

MoCA admits that it entered into an agreement with Defendant Christoph Büchel ("Büchel")

regarding a planned Exhibit to be located in MASS MoCA's football field-sized Building 5

gallery, as further described in MASS MoCA's Complaint For Declaratory Relief ("Complaint").

1. MASS MoCA admits the allegations of paragraph 1.1

1 References to numbered paragraphs refer to the portion of the Answer And

Counterclaims Of Christoph Büchel that begins on page 9 of that document and is entitled "Büchel's Counterclaims."

Case 3:07-cv-30089-MAP Document 14 Filed 07/12/2007 Page 1 of 19

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2. MASS MoCA admits the allegations of paragraph 2.

3. MASS MoCA is without knowledge or information sufficient to admit or

deny the allegations contained in paragraph 3, except that MASS MoCA admits that Büchel

resides in Basel, Switzerland.


deny the allegations contained in paragraph 4, except that MASS MoCA admits that Büchel is an

artist who has created large and complex art installations.

5. MASS MoCA denies each and every allegation contained in paragraph 5,

and by way of further response refers to the allegations of its Complaint that accurately describe

the events purportedly described by that paragraph.














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10. MASS MoCA avers that the allegations contained in paragraph 10 are

legal conclusions to which no response is required. To the extent that a response is deemed

required, MASS MoCA denies each and every allegation contained in paragraph 10, and by way

of further response refers to the allegations of its Complaint that accurately describe the events

purportedly described by that paragraph.





except that to the extent that paragraph purports to quote an e-mail and letter from Joseph

Thompson, the Director of MASS MoCA, to Mr. Büchel dated September 16, 2006 (copies of an

e-mail chain incorporating that e-mail, and the letter referenced in that e-mail, are attached hereto

as Exhibit 12), MASS MoCA refers to that document for its content, and by way of further

response refers to the allegations of its Complaint that accurately describe the events purportedly

described by that paragraph.


except that to the extent that paragraph purports to quote an e-mail and letter from Mr.

Thompson to Mr. Büchel dated September 16, 2006 (copies of an e-mail chain incorporating that

e-mail, and the letter referenced in that e-mail, are attached hereto as Exhibit 1), MASS MoCA

refers to that document for its content, and by way of further response refers to the allegations of

its Complaint that accurately describe the events purportedly described by that paragraph.

2 E-mail addresses and telephone numbers have been redacted from the Exhibits to

this public filing.


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except that to the extent that paragraph purports to quote a statement that was posted on MASS

MoCA's web site in or about December 2006 (a copy of which is attached hereto as Exhibit 2),

MASS MoCA refers to that document for its content, and by way of further response refers to the

allegations of its Complaint that accurately describe the events purportedly described by that

paragraph.








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deny the allegations contained in paragraph 20, and, on that basis, denies each and every

allegation contained therein.





except that to the extent that paragraph purports to describe e-mails and other correspondence

and communications between and MASS MoCA, including but not limited to (i) an e-mail from

Mr. Büchel to Mr. Thompson dated December 27, 2006 (a copy of which is attached hereto as

Exhibit 3), (ii) an e-mail from Mr. Thompson to Mr. Büchel dated January 4, 2007 (a copy of

which is attached hereto as Exhibit 4), (iii) an e-mail from Mr. Büchel to Mr. Thompson dated

January 5, 2007 (a copy of which is attached hereto as Exhibit 5), (iv) an e-mail to Mr.

Thompson dated January 20, 2007 attaching a letter from Mr. Büchel to Mr. Thompson dated

January 16, 2007 (a copy of the e-mail and letter are attached hereto as Exhibit 6), (v) an e-mail

from Mr. Thompson to Mr. Büchel dated January 24, 2007 (a copy of which is attached hereto as

Exhibit 7), (vi) an e-mail from Mr. Thompson to Mr. Büchel dated January 24, 2007 (a copy of

which is attached hereto as Exhibit 8), (vii) an e-mail from Mr. Büchel to Mr. Thompson dated

January 27, 2007 (a copy of which is attached hereto as Exhibit 9), (viii) an e-mail from Mr.

Thompson to Mr. Büchel dated January 29, 2007 (a copy of which is attached hereto as Exhibit

10), (ix) an e-mail from Mr. Thompson to Mr. Büchel dated February 2, 2007 attaching a letter

from Mr. Thompson to Mr. Büchel dated February 1, 2007 (a copy of which is attached hereto as

Exhibit 11), (x) an e-mail from Mr. Thompson to Mr. Büchel dated February 2, 2007 (a copy of


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which is attached hereto as Exhibit 12), (xi) an e-mail from Mr. Büchel to Mr. Thompson dated

February 2, 2007 (a copy of which is attached hereto as Exhibit 13), (xii) an e-mail from Mr.

Thompson to Mr. Büchel dated February 5, 2007 (a copy of which is attached hereto as Exhibit

14), (xiii) an e-mail from Mr. Büchel to Mr. Thompson dated February 5, 2007 (a copy of which

is attached hereto as Exhibit 15), (xiv) an e-mail from Mr. Thompson to Mr. Büchel dated

February 6, 2007 (a copy of which is attached hereto as Exhibit 16), and (xv) a copy of an e-mail

from Mr. Büchel to Mr. Thompson dated February 6, 2007 (a copy of which is attached as

Exhibit 17), MASS MoCA refers to those documents and communications for their content, and

by way of further response refers to the allegations of its Complaint that accurately describe the

events purportedly described by that paragraph.








except that to the extent that paragraph purports to quote documents that appear on various

Internet web sites, MASS MoCA refers to those documents for their content, and by way of

further response refers to the allegations of its Complaint that accurately describe the events

purportedly described by that paragraph.


except that to the extent that paragraph purports to quote an article that appeared in the March


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28, 2007 Boston Globe, MASS MoCA refers to that article for its content, and by way of further




except that to the extent that paragraph purports to quote an article that appeared in the March

28, 2007 Boston Globe, MASS MoCA refers to that article for its content, and by way of further




except that to the extent that paragraph purports to quote a letter from Mr. Thompson to Mr.

Büchel dated March 28, 2007 (a copy of which is attached hereto as Exhibit 18), MASS MoCA

refers to that letter for its content, and by way of further response refers to the allegations of its

Complaint that accurately describe the events purportedly described by that paragraph.


except that to the extent that paragraph purports to quote a letter from Mr. Büchel's counsel to

Mr. Thompson dated May 2, 2007 (a copy of which is attached hereto as Exhibit 19) MASS

MoCA refers to that letter for its content, and by way of further response refers to the allegations

of its Complaint that accurately describe the events purportedly described by that paragraph.


except that to the extent that paragraph purports to quote a document that appears on MASS

MoCA's web site (a copy of which is attached hereto as Exhibit 20) MASS MoCA refers to that

document for its content, and by way of further response refers to the allegations of its



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except that to the extent that paragraph purports to quote a document that appears on MASS

MoCA's web site (a copy of which is attached hereto as Exhibit 20) MASS MoCA refers to that

document for its content, and by way of further response refers to the allegations of its


32. MASS MoCA denies each and every allegation contained in paragraph 32

except that to the extent that paragraph refers to an article and accompanying photographs that

appeared in the May 21, 2007 New York Times and to an article that appeared in the July 1,

2007 Boston Globe, MASS MoCA refers to those articles for their content, and by way of further



33. MASS MoCA denies each and every allegation contained in paragraph 33.



except that to the extent that paragraph refers to articles that appeared in various print and

Internet publications, MASS MoCA refers to those articles for their content.

36. MASS MoCA denies each and every allegation contained in paragraph 36

except that to the extent that paragraph refers to an article that appeared in the July 1, 2007

Boston Globe, MASS MoCA refers to that article for its content.


except that to the extent that paragraph purports to quote (i) a document that appears on MASS

MoCA's web site (a copy of which is attached hereto as Exhibit 20), (ii) an article that appeared

in the May 22, 2007 Berkshire Eagle, and (iii) a letter from Mr. Thompson to Mr. Büchel dated


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March 28, 2007 (a copy of which is attached hereto as Exhibit 18), MASS MoCA refers to those

documents for their content.

FIRST COUNTERCLAIM: DECLARATORY JUDGMENT (Violation of the Visual Artists Rights Act)

38. MASS MoCA incorporates its answers and averments contained in

paragraphs 1 through 37 above as if fully set forth herein.



and by way of further response refers to its Complaint for an accurate statement of its claim for

declaratory judgment.

41. MASS MoCA avers that paragraph 41 contains legal conclusions to which

no response is required. To the extent a response is deemed required, MASS MoCA denies each

and every allegation in paragraph 41.






declaratory judgment and the relief sought thereby.





declaratory judgment and the relief sought thereby.


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no response is required. To the extent a response is deemed required, MASS MoCA refers to its

Complaint for an accurate statement of its claim for declaratory judgment and the relief sought

thereby.

48. MASS MoCA avers that paragraph 48 purports to contain a prayer for

relief, and denies that Büchel is entitled to any relief whatsoever. To the extent a further

response is deemed required, MASS MoCA denies each and every allegation in paragraph 48.







SECOND COUNTERCLAIM (Violation of the Visual Artists Rights Act)











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THIRD COUNTERCLAIM (Violation of § 106(5) of the Copyright Act)








and every allegation in paragraph 59, except avers that it is without knowledge or information

sufficient to admit or deny the allegation that Büchel is a citizen of Switzerland.














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FOURTH COUNTERCLAIM (Violation of § 106(2) of the Copyright Act)



















FIFTH COUNTERCLAIM (Violation of § 106(2) of the Copyright Act)




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FURTHER, MASS MoCA denies each and every allegation in the portion of the

Counterclaims entitled "Prayer For Relief" and beginning with the word “WHEREFORE”

(including subparagraphs 1 through 8 thereof) and denies that Büchel is entitled to any relief

whatsoever.


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AFFIRMATIVE DEFENSES

AND NOW, having answered Büchel's Counterclaims, MASS MoCA sets forth

its affirmative defenses to those counterclaims as follows:

First Affirmative Defense (Failure To State A Claim)

1. Each and every allegation and claim in the Counterclaims fails to state a

claim upon which relief may be granted.

Second Affirmative Defense (Lack of Particularity)

2. Büchel is barred from asserting his Counterclaims because he has failed to

particularize his claims, thereby depriving MASS MoCA of the ability to ascertain the true basis

of Büchel's claims, if any, and the law applicable to each of those claims.

Third Affirmative Defense (MASS MoCA Met Its Obligations)

3. Each and every allegation and claim in the Counterclaims is barred

because MASS MoCA met all of its obligations under its agreement with Büchel.

FourthAffirmative Defense (Excuse)


because any allegedly wrongful conduct on the part of MASS MoCA is excused by reason of

Büchel's failure to meet his obligations under his agreement with MASS MoCA.

FifthAffirmative Defense (License and Payment)

5. Büchel's Counterclaims are subject to the defenses of license and payment.


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Sixth Affirmative Defense (No Breach of Duty)


because MASS MoCA has not breached any duty owed to Büchel, if any.

Seventh Affirmative Defense (Operation of Law)

7. Büchel's Counterclaims may or will be, or are, barred by operation of law.

Eighth Affirmative Defense (No Violation of the Copyright Act: Original Work of Authorship)

8. Büchel's Counterclaims are barred because the materials that are the

subject matter of his Counterclaims ("Materials") do not contain sufficient original expression on

the part of Büchel to be protected under the Copyright Act.

Ninth Affirmative Defense (No Violation of the Copyright Act: Joint Ownership)

9. Büchel's Counterclaims are barred because MASS MoCA is a joint owner

of any copyright in the Materials which are the subject matter of Büchel's counterclaims.

Tenth Affirmative Defense (No Violation of the Copyright Act: Right of Display)

10. Büchel's Counterclaims are barred because MASS MoCA is the lawful

owner of the Materials which are the subject matter of Büchel's Counterclaims and as such is

entitled to display those Materials publicly.

Eleventh Affirmative Defense (No Violation of the Copyright Act: Failure to Register)

11. Büchel's Counterclaims are barred because he has failed to register the

Materials which are the subject matter of his Counterclaims with the United States Copyright

Office.


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Twelfth Affirmative Defense (No Violation of the Visual Artists Rights Act: Work of Visual Art)

12. Büchel's Counterclaims are barred because the Materials which are the

subject matter of his Counterclaims do not constitute a work of visual art subject to the Visual

Artists Rights Act.

Thirteenth Affirmative Defense (No Violation of the Visual Artists Rights Act: Conservation)

13. Büchel's Counterclaims are barred because any modification to the

Materials which are the subject matter of his Counterclaim is the result of conservation or

placement.

Fourteenth Affirmative Defense (No Violation of the Copyright Act or Visual Artists Rights Act: Fair Use)

14. Büchel's Counterclaims are barred by the doctrine of fair use.

Fifteenth Affirmative Defense (Good Faith)


because MASS MoCA at all times acted in good faith.

Sixteenth Affirmative Defense (Lack of Willfulness)

16. Büchel's Counterclaims are barred because any allegedly infringing

conduct on the part of MASS MoCA was neither willful nor intentional.

Seventeenth Affirmative Defense (Waiver)

17. Each and every allegation and claim in the Counterclaims is barred by the

doctrine of waiver.


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Eighteenth Affirmative Defense (Estoppel)


doctrine of estoppel.

Nineteenth Affirmative Defense (Ratification)


doctrine of ratification.

Twentieth Affirmative Defense (Laches)


doctrine of laches.

Twenty-First Affirmative Defense (Unclean Hands)


doctrine of unclean hands.

Twenty-Second Affirmative Defense (No Standing)

22. Büchel lacks standing to bring his Counterclaims.

Twenty-Third Affirmative Defense (Comparative/Contributory Negligence)


because if damages were sustained by Büchel, such damages are attributable to Büchel's own

reckless, negligent or culpable conduct and Büchel's claims are therefore barred by comparative

and/or contributory negligence.


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Twenty-Fourth Affirmative Defense (No Damages)


because Büchel has not been caused any damage by any conduct of MASS MoCA.

Twenty-Fifth Affirmative Defense (Superseding/Intervening Cause)

25. If Büchel sustained any damages, which is expressly denied, the same is

the proximate result of some superseding or intervening cause.

Twenty-Sixth Affirmative Defense (Failure to Mitigate Damages)


because Büchel failed to act reasonably to mitigate damages, if any.

Twenty-Seventh Affirmative Defense (Offset Damages)


because if damages were sustained by Büchel, they must be offset by the value rendered to

Büchel by MASS MoCA.

Twenty-Eighth Affirmative Defense (Punitive Damages Unlawful and/or Unconstitutional)

28. To the extent that any claim in this action seeks exemplary or punitive

damages, any such relief would violate statutory limitations on damages, and/or MASS MoCA's

right to procedural and substantive due process under the Fourteenth Amendment of the United

States Constitution.


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Twenty-Ninth Affirmative Defense (Reservation of Rights)

29. MASS MoCA hereby gives notice that it intends to rely upon such other

and further defenses as may become available or apparent during pre-trial proceedings in this

case and hereby reserves its rights to amend this Reply and to assert such defenses.

REQUEST FOR RELIEF

WHEREFORE, MASS MoCA requests that this Court:

A. Dismiss Mr. Büchel's Counterclaims with prejudice; and

B. Grant such other and further relief as the Court may deem just and proper.

JURY TRIAL DEMAND

MASS MoCA demands a trial by jury on any and all of Büchel's Counterclaims

which are so triable.

Dated: July 12, 2007 Boston, Massachusetts Of Counsel: Barry H. Garfinkel John L. Gardiner SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP Four Times Square New York, New York 10036 (212) 735-3000 [email protected] [email protected]

Respectfully submitted, /s/ Kurt Wm. Hemr Kurt Wm. Hemr (BBO #638742) SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP One Beacon Street Boston, Massachusetts 02108 (617) 573-4800 [email protected] Counsel for Massachusetts Museum of Contemporary Art Foundation, Inc.

CERTIFICATE OF SERVICE

I, Kurt Wm. Hemr, hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing ("NEF"), and paper copies will be sent to those indicated as non-registered participants on July 12, 2007. Dated: July 12, 2007 /s/ Kurt Wm. Hemr Kurt Wm. Hemr


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Documents

MASS MoCA's Affirmative Defenses and Email Correspondence