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Of the District of Maine, sitting by designation. *United States Court of AppealsFor the First CircuitNo. 08-2199MASSACHUSETTS 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] BeforeLipez 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&LGates LLP, Elena M. Paul, Sergio Muñoz Sarmiento, and VolunteerLawyers 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 & FlomLLP were on brief, for appellee. January 27, 2010 VARA was enacted as an amendment to the Copyright Act. See 1infra Section II. -2- LIPEZ, Circuit Judge. As one observer has noted, thiscase, which raises important and unsettled legal issues under theVisual Artists Rights Act ("VARA"), may well serve as "the ultimatehow-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 ofContemporary Art ("MASS MoCA," or "the Museum"). Unfortunately,the parties never memorialized the terms of their relationship ortheir understanding of the intellectual property issues involved inthe installation in a written agreement. Even more unfortunately,the project was never completed. Numerous conflicts and a steadilydeteriorating relationship between the artist and the Museumprevented the completion of "Training Ground for Democracy" in itsfinal form. In the wake of this failed endeavor, the Museum went tofederal court seeking a declaration that it was "entitled topresent to the public the materials and partial constructions" ithad collected for "Training Ground for Democracy." Büchelresponded with several counterclaims under VARA and the CopyrightAct, seeking an injunction that would prevent MASS MoCA from 1 -3-displaying the unfinished installation and damages for the Museum'salleged violations of his rights under both VARA and the generalCopyright Act. On cross-motions for summary judgment, the district courtassumed that VARA applies to unfinished works of art, but itnonetheless ruled for the Museum in all respects because, evengranting VARA's applicability, it found no genuine issues ofmaterial fact. Massachusetts Museum of Contemporary Art Found.,Inc. v. Büchel, 565 F. Supp. 2d 245 (D. Mass. 2008). Büchelappeals. Because we find that, if VARA applies, genuine issues ofmaterial fact would foreclose summary judgment on one of Büchel'sVARA claims – that MASS MoCA violated his right of artisticintegrity by modifying the installation – we cannot assume thatVARA applies to unfinished works but instead must decide itsapplicability. We conclude that the statute does apply to suchworks. We further conclude that, in addition to his VARA claim,Büchel asserts a viable claim under the Copyright Act that MASSMoCA violated his exclusive right to display his work publicly.Accordingly, we reverse in part the grant of summary judgment forMASS MoCA and remand for further proceedings. -4-I.A. The Parties MASS MoCA opened in 1999 as a center for the creation anddisplay of contemporary art. The Museum "seeks to catalyze andsupport the creation of new art, expose [its] visitors to boldvisual and performing art in all stages of production, andre-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 Museumstrives to "make the whole cloth of art making, presentation andpublic participation a seamless continuum." Id. Over the lastdecade, the Museum has hosted the production and presentation ofover sixty exhibits of visual art, including over 600 works of artby more than 250 individual artists. Some of these works have beendisplayed 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 scaleand duration impossible to realize in the time and space-crampedconditions of most museums," and MASS MoCA prides itself onexposing its audiences to "all stages of art production:rehearsals, sculptural fabrication, and developmental workshops arefrequently on view, as are finished works of art." Id. We consider the parties' conflicting accounts of the key 2evidence in our summary judgment analysis, infra. -5- Christoph Büchel is a Swiss visual artist who lives andworks in Basel, Switzerland. He is "known for building elaborate,politically provocative environments for viewers to wander, andsometimes to crawl, through." Randy Kennedy, The Show Will Go On,but the Art Will Be Shielded, N.Y. Times, May 22, 2007, at E1 ("TheShow Will Go On"). One critic has stated that "Mr. Büchel'senvironments are huge in scale," "like bristling three-dimensionalhistory paintings," yet are "so obsessively detailed that theymight best be described as panoramic collage." Roberta Smith, IsIt Art Yet? And Who Decides?, N.Y. Times, Sept. 16, 2007, at 21. B. Factual Background Focusing first on those facts that are undisputed, wesketch the course of dealings between Büchel and MASS MoCA to putthis appeal in context. MASS MoCA became interested in planning 2a new installation with Büchel. The artist visited the North Adamsfacility in October 2005 to begin preliminary discussions regardingthe project, and those discussions continued into 2006. At somepoint during this time, Büchel proposed, and the Museum agreed to,a project entitled "Training Ground for Democracy." As MuseumDirector Joseph Thompson indicated in a letter to Büchel's galleryrepresentatives, MASS MoCA understood that "Büchel's projectstypically require a lengthy period of installation and -6-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 avillage, . . . contain[ing] several major architectural andstructural elements integrated into a whole, through which avisitor could walk (and climb)." According to an affidavitsubmitted to the district court, Büchel envisioned the work in thefollowing way: It was to adopt the role-play of U.S. militarytraining for its visitors, who would be giventhe opportunity to "virtually" change theirown various identities in relation to thecollective project called "democracy":training to be an immigrant, training to vote,protest, and revolt, training to loot,training iconoclasm, training to join apolitical rally, training to be the objects ofpropaganda, training to be interrogated anddetained and to be tried or to judge, trainingto reconstruct a disaster, training to be inconditions of suspended law, and trainingvarious other social and political behavior. In August 2006, Büchel spent ten days in residence atMASS MoCA. During this time, he and a partner prepared a basicschematic model of the proposed installation. MASS MoCA agreed toacquire, at Büchel's direction but its own expense, the materialsand items necessary for the project. Unfortunately, the parties never formalized the contoursof their relationship or firmly established the project's financialscope and precise specifications by executing any writteninstrument. Although MASS MoCA's curator, Nato Thompson (no Throughout the opinion, any reference to "Thompson" without 3a first name will refer to Museum Director Joseph Thompson. NatoThompson will be identified by his full name. The letter, signed by Museum Director Joseph Thompson, was 4attached to an email sent by Nato Thompson. The proposal did notlay out a definitive budget for the project, although in a separateletter to Büchel the following day, Joseph Thompson stated "wethink we've got a $160,000 project on our hands in direct costs."In a reply email dated September 24, 2006, Büchel did notexplicitly agree to or reject the $160,000 figure, but suggestedthat MASS MoCA get in touch with his two galleries, which mightprovide information regarding "potential sponsors like foundations"for the installation. -7-relation to the Museum Director), sent Büchel's gallery sales 3representative in the United States a letter on September 14, 2006that was designed to "formalize [the parties'] relationship on thisproject," there is no indication that Büchel himself ever saw, muchless signed, this proposal. The gallery responded with a proposed 4contract of its own, providing that MASS MoCA should bear the costsof transporting and organizing the various materials for theinstallation. The Museum did not respond to this proposal.Additionally, it is undisputed that Büchel never signed a documentwaiving any rights to which he would otherwise be entitled underVARA. The parties did apparently agree, however, that once theplanned installation was finished, and after the public exhibitionperiod had concluded, MASS MoCA would not contest Büchel's soletitle to any copyright in the completed work. The parties set anopening date of December 16, 2006 for the exhibit. -8- Over the course of the fall, tensions began to developbetween the artist and MASS MoCA employees, particularly JosephThompson. "In summary, the museum felt the artist's directionswere vague, and his financial and logistical demands wereincreasingly unreasonable; the artist felt the museum wascompromising his artistic integrity and failing to follow hisinstructions." MASS MoCA, 565 F. Supp. 2d at 247. One frequentsource of conflict between the parties was the budget, with theMuseum understandably concerned about keeping its costs for themassive project under control, and Büchel understandably insistentthat his vision for "Training Ground" be fully realized. But asthe district court correctly noted, "[t]he dispute about thesefinancial understandings is not material" to whether Büchel haspresented 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 MASSMoCA and the artist involved Büchel's dissatisfaction with the wayin which the Museum was implementing his instructions andprocuring the items necessary for the installation. Büchel himselfwas not present in North Adams for the first several months of workon the project. Instead, he conducted much of his work on theinstallation throughout the fall of 2006 remotely, by providingMuseum personnel with detailed instructions as to the particular -9-materials he required and their placement within the exhibitionspace. In the words of the district court, "[a]t various pointsin the development of the installation, Büchel proposed severalmajor components," some but not all of which later became part ofthe installation "as its elements evolved through discussions withMASS MoCA during the construction process." Id. These majorcomponents 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 andothers for potential use in the installation as soon as Büchel leftNorth Adams at the end of August 2006, and continued to do sothroughout the fall. One of the Museum's curators described thesearch for these items (at Büchel's direction) as "the ultimatescavenger hunt." However, problems soon arose, especially betweenThompson and Büchel, as to the progress of the project,particularly when, as Thompson explained in an internal Museumemail dated October 28, 2006, he had tried to "move the projectalong" by "making a few decisions in [Büchel's] stead." Thompsonnoted that Büchel, whom he described as having "clear vision" and"rock solid integrity," had taken "extreme, mortal[] offense" toThompson's efforts. On October 29, 2006, Büchel returned to North Adams tocomplete "Training Ground for Democracy," and three of his -10-assistants from Switzerland arrived shortly thereafter. Unhappywith some of the work that had been done by the Museum in hisabsence, Büchel felt that certain logistical and organizationalfailures by the Museum had endangered the timely opening of theshow. Büchel wrote in an email to Thompson that he would not allowthe Museum to open an "unfinished show in my name, since you areresponsible for this major delay." By early December 2006, Büchelinsisted that the Museum postpone the opening of the show andasserted that he would not "accept an opening of a work in progressor other compromise." During the first week of the month, MASSMoCA agreed to delay the opening, posting the following message onits website: "Due to logistical complexities encountered by themuseum in preparing galleries for Christoph Büchel's vastinstallation, the exhibition's official opening date . . . will bere-scheduled." Büchel remained onsite at the Museum working on "TrainingGround" until December 17, 2006, when he left for the holidays. InBüchel's estimation, "Training Ground" was then only about 40%complete. At the time, he planned to return on January 8, 2007, inorder to finish the work in time for a March 3 opening. When heleft North Adams, the artist was obviously disappointed with theprogress of "Training Ground." He called the Museum disorganizedand faulted it for underestimating the scope of his project. Hefelt that Museum employees, by failing to precisely carry out his -11-detailed instructions and making artistic decisions in his stead,had generated even more work for his crew, as numerous componentsof the installation had to be reworked to Büchel's specifications.In general, he felt that the Museum was trying to scale back hisartistic vision without consulting him. Meanwhile, the Museum was running out of money for theproject. In an attempt to secure further funding, it disregardedBüchel's express wishes and, in late December 2006, asked for moneyfrom his galleries. Angry and frustrated, the artist wrote that hewould not move forward with the installation until "all financialproblems are solved, regarding ALL elements of the show and untilmy crew is being sure that they [are] getting paid." By mid-January 2007, tensions had escalated to the point where Büchelinformed the Museum that he would not return to continue work on"Training Ground" unless certain conditions, both financial andartistic, were met. In Büchel's absence, MASS MoCA staff continued to work onthe installation. The parties disagree as to whether the employeeswere merely executing instructions left by the artist or whethertheir actions represented independent artistic judgment, exercisedin direct contravention of Büchel's express wishes. The partiesalso disagree as to whether, in the spring of 2007, whilenegotiations had stalled but work on the installation was ongoing,the Museum promoted - and even showed - the unfinished work to -12-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 becamehopeless, "Training Ground" languished in its unfinished state. Itbecame clear that Büchel would not complete the installation. OnMay 22, 2007, MASS MoCA announced the cancellation of "TrainingGround," and contemporaneously publicized the opening of a newexhibit entitled "Made at MASS MoCA," which was to be "adocumentary project exploring the issues raised in the course ofcomplex collaborative projects between artists and institutions."Massachusetts Museum of Contemporary Art, Press Release,Presentation of Training Ground for Democracy Cancelled; NewExhibition, Made at MASS MoCA, to Open on Saturday, May 26 ("PressRelease"), available athttp://www.massmoca.org/event_details.php?id=144 (May 22, 2007).The press release noted that this lawsuit had been filed theprevious day; it also highlighted the Museum's desire to use its"other experiences working with artists" to "provide [its] audiencewith 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 TrainingGround for Democracy," the exhibition would be presented in theMuseum's "only remaining available gallery space"; therefore, inorder to enter the exhibit, visitors would have to pass through -13-Building 5, "housing the materials and unfinished fabrications thatwere to have comprised elements of Training Ground for Democracy."Id. The Museum represented that "[r]easonable steps [had] beentaken to control and restrict the view of these materials, pendinga court ruling." When "Made at MASS MoCA" opened, many in the art worlddisagreed with the Museum's handling of its dispute with Büchel,though the parties have different views on whether the Museum'sactions ultimately tarnished the artist's reputation. Moreover,the parties differ on whether the "reasonable steps . . . taken tocontrol and restrict the view of the[] materials" – the placementof yellow tarpaulins over the unfinished work – actually concealedall of the individual components and vital design elements of"Training Ground," or whether the tarpaulins simply "hid[] anelephant behind a napkin," effectively inviting individuals to peekbehind the cloth coverings and view the unfinished work. SeeCharles Giuliano, Christoph Buchel's Tarp Art at Mass MoCA: CrapUnder Wrap (July 31, 2007) ("Crap Under Wrap"), available athttp://www.berkshirefinearts.com/show_article.php?article_id=368&category=finearts. C. Procedural Background The Museum sued Büchel on May 21, 2007, in the UnitedStates District Court for the District of Massachusetts. Thecomplaint asserted a single claim for declaratory relief under -14-VARA. The Museum sought a declaration that it was "entitled topresent to the public the materials and partial constructionsassembled in connection with an exhibit planned with the Swissartist Büchel." Büchel responded by asserting five counterclaimsagainst the Museum. The first sought a declaratory judgment and aninjunction under VARA prohibiting the Museum from publiclydisplaying "the unfinished Work of Art or any of its componentelements." The second sought damages for MASS MoCA's allegedviolations of Büchel's VARA rights by "intentionally distort[ing]and modif[ying] the Work of Art" and allowing members of the publicto "see and pass through" the unfinished work, both with andwithout the yellow tarpaulins. The third, fourth and fifthcounterclaims sought damages and injunctive relief under theCopyright Act based on alleged violations of Büchel's right topublicly display and create derivative works from his work. On MASS MoCA's motion, the court ordered an expediteddiscovery schedule that included a private viewing by the districtcourt of Building 5 and the unfinished installation. After theclose of discovery, both sides filed cross-motions seeking summaryjudgment on the complaint and all counterclaims. On September 21,2007, the court held oral argument on the cross-motions and ruledfrom the bench. That decision addressed only the Museum's originalcomplaint seeking declaratory relief to allow public display of thepartially completed project and Büchel's corresponding counterclaim -15-seeking to prevent the Museum from showing the then-existing work.The court ruled in favor of the Museum, noting that nothing in VARAprevented MASS MoCA from showing the incomplete project.Therefore, MASS MoCA was "entitled to present" the unfinishedinstallation to the public as long as it posted a disclaimer thatwould "inform anyone viewing the exhibit that the materialsassembled in Building 5 constitute an unfinished project that [did]not carry out the installation's original intent." The courtcorrespondingly denied the artist's request for injunctive reliefbarring public display of the unfinished installation, ruling thathe had failed to prove a likelihood of success on the merits of hisVARA claim. The court stated that it would "in the coming weeks"issue a detailed memorandum explaining its oral rulings andaddressing the remaining claims. However, several days after obtaining the ruling in itsfavor, MASS MoCA changed course. The Museum posted an announcementon its website stating that it had "begun removing materialsgathered for Training Ground for Democracy and [would] not permitthe public to enter the planned installation." MASS MoCA Blog,"We'll Remove Training Ground,"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 writtenopinion, recognizing that some of the issues presented in the case -16-were now moot, but nevertheless wishing to explain its holding andto 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 workon a piece of art and handles the process ofcreation long-distance via e-mail, usingsomeone else's property, someone else'smaterials, someone else's money, someoneelse's staff, and, to a significant extent,someone else's suggestions regarding thedetails of fabrication – with no enforceablewritten or oral contract defining the parties'relationship – and that artist becomes unhappypart-way through the project and abandons it,then nothing in the Visual Artists Rights Actor elsewhere in the Copyright Act gives thatartist the right to dictate what that "someoneelse" does with what he has left behind, solong as the remnant is not explicitly labeledas the artist's work. No right of artistic"attribution" or "integrity," as those termsare conceived by VARA, is implicated, letalone violated in these circumstances.Similarly, the Copyright Act provides nomechanism for relief, legal or equitable, toan artist such as Defendant Büchel here, basedon the decision of an exhibitor such asPlaintiff MASS MoCA to allow patrons to walkpast covered components of an unfinishedinstallation.565 F. Supp. 2d at 248-29. The court therefore granted MASS MoCA'smotion for summary judgment and denied Büchel's, entering judgmentfor the Museum on its claim for declaratory relief as well as onall 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 The Berne convention, developed at the instigation of Victor 5Hugo and first adopted in Berne, Switzerland in 1886, is "'aninternational copyright treaty providing that works created bycitizens of one signatory nation will be fully protected in othersignatory nations, without the need for local formalities.'"Phillips, 459 F.3d at 133 n.3 (quoting Black's Law Dictionary, 8thed. (1999)). -17-"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"), asreprinted in 1990 U.S.S.C.A.N. 6915, 6917). The "rubric of moral 5rights encompasses many varieties of rights," but the two mostwidely recognized are attribution and integrity. Id. at 81 (citingRalph E. Lerner & Judith Bresler, Art Law 417, 420 (1989)). Wewill discuss both of these in detail below, but note briefly nowthat the right of attribution protects the author's right to beidentified as the author of his work and also protects against theuse of his name in connection with works created by others. Id.The right of integrity "allows the author to prevent any deformingor mutilating changes to his work." Id. Although these moralrights "exist independent[ly] of the economic rights" granted toall authors under the Copyright Act, 5 William F. Patry, Patry onCopyright § 16:1 (2009), they are part of the same statutoryframework. Under the Copyright Act, a plaintiff may elect to recover 6statutory damages instead of actual damages for each work infringed"in a sum of not less than $750 or more than $30,000 as the courtconsiders just." 17 U.S.C. § 504(c)(1). If the copyright ownerproves that the infringement was committed willfully, the court "inits discretion" may increase the award of statutory damages to "asum of not more than $150,000." Id. at 504(c)(2). The award mayalso be reduced to $200 if the infringer proves that he or she wasnot aware "and had no reason to believe that his or her actsconstituted an infringement of copyright." Id.-18-A. The Copyright Act Under the Copyright Act, "[c]opyright protection subsists. . . in original works of authorship fixed in any tangible mediumof expression." 17 U.S.C. § 102(a). A copyright owner has certainexclusive 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, thecopyright holder has the exclusive right to publicly display thecopyrighted work and to prepare derivative works based upon it. 17U.S.C. § 106(5), (2). "One infringes a copyright when he or sheviolates one of the exclusive rights to a work held by a copyrightowner, and the owner has the right to sue for infringement."T-Peg, Inc., 459 F.3d at 108 (citing 17 U.S.C. § 501). Theremedies provided by the Copyright Act include injunctive reliefand actual or statutory damages. See 17 U.S.C. §§ 502, 504.6B. VARA Beyond the Copyright Act's protections of certaineconomic rights, VARA provides additional and independent The parties do not dispute that, if completed, "Training 7Ground for Democracy" would have been a sculpture and therefore aqualified "work of visual art" under VARA. Furthermore, VARA'slegislative history states that "[t]he term 'sculpture' includes,but is not limited to, castings, carvings, modelings, andconstructions." House Report at 11 (1990), as reprinted in 1990U.S.C.C.A.N. at 6921 (emphasis added). The Second Circuit inCarter 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 ina single copy.").-19-protections to authors of works of visual art. See Carter, 71 F.3dat 81-83. A work of visual art is defined to include "a painting,drawing, print, or sculpture, existing in a single copy" or in a 7limited edition. 17 U.S.C. § 101. The definition specificallyexcludes 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 rightsprovided by section 106 of the Copyright Act, but subject tocertain limitations, the author of a work of visual art (1) shall have the right — (A) to claim authorship of thatwork, and (B) to prevent the use of his or hername as the author of any work ofvisual art which he or she did notcreate; (2) shall have the right to prevent the use ofhis or her name as the author of the work of -20-visual art in the event of a distortion,mutilation, or other modification of the workwhich would be prejudicial to his or her honoror reputation; and (3) subject to the limitations set forth insection 113(d), shall have the right — (A) to prevent any intentionaldistortion, mutilation, or othermodification of that work whichwould be prejudicial to his or herhonor or reputation, and anyintentional distortion, mutilation,or modification of that work is aviolation of that right, and (B) to prevent any destruction of awork of recognized stature, and anyintentional or grossly negligentdestruction of that work is aviolation of that right.17 U.S.C. § 106A(a). VARA's passage reflected Congress's belief that the artcovered 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 "moralrights" of its creators. These are "rights of a spiritual, non-economic and personal nature" that exist "independently of anartist's copyright in his or her work" and "spring from a beliefthat an artist in the process of creation injects his spirit intothe work and that the artist's personality, as well as theintegrity of the work, should therefore be protected andpreserved." Carter, 71 F.3d at 81. The recognition of moral Section 501(a) states, in relevant part, that "[a]nyone who 8violates any of the exclusive rights of the copyright owner . . .or of the author as provided in section 106A(a) [VARA] . . . is aninfringer of the copyright or right of the author, as the case maybe." The provision further states that, with the exception of thecriminal penalties provided under section 506, "any reference tocopyright shall be deemed to include the rights conferred bysection 106A(a)." -21-rights fosters a "'climate of artistic worth and honor thatencourages 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. at6915). Although an artist may not transfer his VARA rights (asthey are considered an extension of his personality), he may waivethose rights by "expressly agree[ing] to such waiver in a writteninstrument." 17 U.S.C. § 106A(e)(1). Also, "[a]ll remediesavailable under copyright law, other than criminal remedies, areavailable 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 reputationsof certain visual artists and the works of art they create.'"Carter, 71 F.3d at 83 (quoting House Report at 6, as reprinted in1990 U.S.C.C.A.N. at 6915). Before discussing the precise contoursof these rights, we consider whether, as a threshold matter, theindisputably unfinished "Training Ground for Democracy" was a "workof visual art" within the meaning of VARA. -22-C. Does VARA Apply to Unfinished Works of Art? Büchel argues that the district court erred by failing torecognize that VARA applies with equal force to incomplete artisticendeavors that would otherwise be subject to VARA protection. Heasserts that the Act's plain language compels such a conclusion,which he claims is confirmed by the legislative history and sparsecase law interpreting the statute. The Museum, for its part, doesnot argue that unfinished works are excluded from VARA's scope.Instead, it interprets the district court's opinion as "expresslyassum[ing]" that VARA applied to "Training Ground for Democracy" inits incomplete state, and then concluding that Büchel had failed toput forth sufficient evidence to raise a triable issue regardingthe violation of his rights under the statute. We do not read the district court's ruling to concludecategorically that VARA does not apply to unfinished works.Rather, the court held that, if the statute applied, "display ofth[e] unfinished installation would have violated neither Büchel'sright of attribution nor his right of integrity." 565 F. Supp. 2dat 259. Nonetheless, the court repeatedly expressed skepticismabout Büchel's claim that the incomplete "Training Ground" fellwithin 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 theassembled materials that constituted this unfinished As provided in 17 U.S.C. § 106A(c)(3), VARA specifically 9excludes certain categories of artwork listed in section 101 of theCopyright Act: (A) (i) any poster, map, globe, chart, technical-23-installation."). Moreover, the court qualified the statute'sapplication to unfinished works: "To the extent that an artistseeks protection for an uncompleted work, a violation of one ofVARA's two explicitly recognized rights must be demonstrated withspecial clarity." Id. at 258. Our review of the district court's interpretation ofVARA is de novo. Phillips, 459 F.3d at 139. "'As in all statutoryconstruction 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 taskends there as well," United States v. Godin, 534 F.3d 51, 56 (1stCir. 2008). "If the statute's language is plain, the sole functionof the courts - at least where the disposition required by the textis not absurd - is to enforce it according to its terms." In reRudler, 576 F.3d 37, 44 (1st Cir. 2009) (quotation marks andcitations omitted). The definition of a "work of visual art" for VARApurposes is stated "in terms both positive (what it is) andnegative (what it is not)." Carter, 71 F.3d at 84. An unfinishedsculptural installation such as "Training Ground for Democracy" isnot one of the items specifically excluded from VARA protection,9 drawing, diagram, model, applied art, motionpicture or other audiovisual work, book,magazine, newspaper, periodical, data base,electronic information service, electronicpublication, or similar publication; (ii) any merchandising item or advertising,promotional, descriptive, covering, orpackaging material or container; (iii) any portion or part of any itemdescribed in clause (i) or (ii); (B) any work made for hire 17 U.S.C. § 101.-24-and MASS MoCA wisely does not attempt to argue otherwise. Instead,we must determine whether the "positive" aspect of the definitionof "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 artisticproject becomes a work of visual art subject to its protections.However, VARA is part of the Copyright Act, and that Act'sdefinition section, which defines "work of visual art," specifiesthat its definitions, unless otherwise provided, control throughoutTitle 17. See 17 U.S.C. § 101. That general definitional sectionof the Copyright Act states that a work is "created" when it "isfixed in a copy . . . for the first time." Further, "where a workis prepared over a period of time, the portion of it that has beenfixed at any particular time constitutes the work as of that time."17 U.S.C. § 101 (emphasis added). A work is "fixed" when it hasbeen formed, "by or under the authority of the author," in a way Nothing in the language of VARA or the definitions provision 10of the Copyright Act permits distinct treatment for the rights ofcopyright owners whose works are complete and those whose works arestill in progress. We therefore reject the "special clarity"standard articulated by the district court for proving a violationof an artist's VARA rights in an unfinished work of art.-25-that is "sufficiently permanent or stable to permit it to beperceived, reproduced, or otherwise communicated for a period ofmore than transitory duration." Id. Not surprisingly, based on section 101's generaldefinitions, courts have held that the Copyright Act's protectionsextend to unfinished works. See, e.g., Dumas v. Gommerman, 865F.2d 1093, 1097 (9th Cir. 1989), rejected on other grounds byCommunity 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 thatthere is "no requirement that a work be complete before it isprotected by the Copyright Act"); Playboy Enters. Inc. v. Dumas,831 F. Supp. 295, 314 (S.D.N.Y. 1993) ("[T]he [Copyright] Actprotects 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.3d549 (2d Cir. 1995). Reading VARA in accordance with the definitions insection 101, it too must be read to protect unfinished, but"fixed," works of art that, if completed, would qualify forprotection under the statute. To conclude otherwise would be 10 The Second Circuit ultimately found that the sculpture was 11exempted from VARA protections because it was a "work for hire."See 71 F.3d at 86-88.-26-"contrary to the rule that provisions of a single act should beconstrued in as harmonious a fashion as possible." United Statesv. Maravilla, 907 F.2d 216, 231 (1st Cir. 1990) (citation omitted).At least one circuit has previously assumed VARA's applicability tounfinished works. See Carter, 71 F.3d at 83-88 (discussing VARAclaims stemming from an unfinished, walk-through sculpture beinginstalled in the lobby of a building).11 Our conclusion that the statute's plain language extendsits coverage to unfinished works makes it unnecessary to delve intoVARA's legislative history. We nonetheless note that we havelooked closely at that history, and it fully supports our readingof the plain language. Common sense points in the same direction.Moral rights protect the personality and creative energy that anartist contributes to his or her work. That convergence betweenartist and artwork does not await the final brush stroke or theplacement of the last element in a complex installation. See,e.g., Monica Pa & Christopher J. Robinson, Making Lemons out ofLemons: Recent Developments in the Visual Artists Rights Act, 3Landslide 22, 24 (Jan./Feb. 2009) ("[T]he history of art is full ofsublime 'unfinished' works of art, such as Leonardo da Vinci'sStatue of a Horse (begun 1488), Michelangelo's Tomb of Pope JuliusII (begun 1505), or El Greco's The Vision of St. John (1608-14)."); Our decision in Phillips is not inconsistent with this 12holding. In Phillips, we held that VARA did not apply to site-specific works of art, in which the particular location of theartwork is one of its physical elements and removal of the artworkdestroys it. 459 F.3d at 140. We observed that VARA does notexplicitly address protection for site-specific works despite theimpact of such works on real property interests, id. at 142, and wedeclined to interpret VARA in a way that was neither supported bythe 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-Laura Flahive Wu, Massachusetts Museum of Contemporary Art v.Büchel: Construing Artists' Rights in the Context of InstitutionalCommissions, 32 Colum. J.L. & Arts 151, 163 (2008) (noting that"many works are considered 'art' even though they capture creativeexpression short of an artist's ultimate realization of thatexpression"). We thus hold that VARA protects the moral rights ofartists who have "created" works of art within the meaning of theCopyright Act even if those works are not yet complete.12III. Given Büchel's right to protection under VARA for hisartistic investment in a partially completed artwork, we must nowassess the district court's ruling that Büchel failed to raise agenuine 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 -28-(1st Cir. 2009). "The presence of cross-motions neither dilutesnor distorts this standard of review." Scottsdale Ins. Co. v.Torres, 561 F.3d 74,77 (1st Cir. 2009) (quotation marks andcitations omitted); see also Littlefield v. Acadia Ins. Co., 392F.3d 1, 6 (1st Cir. 2004) ("Cross motions simply require us todetermine whether either of the parties deserves judgment as amatter of law on facts that are not disputed.") (quotation marksand citation omitted). Summary judgment is appropriate where"there is no genuine issue as to any material fact" and "the movantis 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 thefact is such that a reasonable jury could resolve the point infavor of the non-moving party. A fact is 'material' if it has thepotential 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 ofhis attribution and integrity rights under VARA and then addresshis claims under other provisions of the Copyright Act, whichassert violations of his rights to control the display of theinstallation and to create derivative works based on it. In some jurisdictions, the right of integrity also generally 13protects artwork from destruction. See Carter, 71 F.3d at 81. Inthe United States, however, VARA protects only works of "recognizedstature" from destruction. 17 U.S.C. § 106A(a)(3)(B). That rightis not implicated in this case. -29-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 "toprevent any intentional distortion, mutilation, or othermodification of [his or her] work which would be prejudicial to hisor her honor or reputation, and [that] any intentional distortion,mutilation, or modification of that work is a violation of thatright." It thus allows artists to protect their works againstintentional modifications that would be prejudicial to their honoror reputations. House Report at 6, as reprinted in 1990U.S.C.C.A.N. at 6915.13 There is arguably some uncertainty about the plaintiff'sburden of proof in a case such as this because the second part ofsection (a)(3)(A) – stating that "any intentional distortion,mutilation, or modification of th[e] work is a violation" of theright of integrity – does not explicitly require a showing ofprejudice 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 thoseVARA cases that make it to court are "generally . . . decided on -30-threshold questions such as whether the artist's work is a work ofvisual art within the scope of the Act," Pa & Robinson, supra, at26, courts have had little occasion to give content to the rightsthat VARA guarantees. See Wu, supra, at 159 ("[C]ourts avoidconstruing the extent of VARA protection by finding that works donot meet the threshold requirements for 'visual art' protected byVARA."). Unsurprisingly, therefore, we have found no case lawdiscussing a possible difference in the showing required forinjunctive relief and damages for right-of-integrity claims. Some courts, however, have assumed without analysis thatthe prejudice showing is necessary for both injunctive relief anddamages. See, e.g., Hanrahan v. Ramirez, No. 2:97-CV-7470, 1998WL 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 inpart by Carter, 71 F.3d at 77. At least one commentator likewiseaccepts, without discussion, that the damages remedy requires ashowing of prejudice. See Melville B. Nimmer, 3-8D Nimmer onCopyright § 8D.06[C][1] (noting that "an intentional andprejudicial mutilation is an integrity violation, remediablethrough not only an injunction, but damages as well").Interestingly, Nimmer raises, and dismisses, a differentimprecision in section (a)(3)(A): The statutory language – "distortion,mutilation, or other modification of the work Article 6bis of the Berne Convention, which is titled "Moral 14Rights," includes a heading that lists among those rights "toobject to certain modifications and other derogatory actions." Theprovision itself states, in relevant part: (1) Independently of the author's economic rights, andeven after the transfer of the said rights, the authorshall have the right . . .to object to any distortion,mutilation or other modification of, or other derogatory-31-which would be prejudicial to his or her honoror reputation" – is susceptible of a readingwhereby the requisite prejudice applies onlyto "modification," not to the antecedents of"distortion" or "mutilation." Though notwithout ambiguity, the better view under theBerne Convention, from which this language isdrawn, is that prejudice applies in all threeinstances.Id. We agree with Nimmer's view of the provision, includingthe application of the prejudice requirement to a claim fordamages, and consider that construction soundly grounded in VARA'slegislative history. Under the heading "Purpose of theLegislation," the House Report notes that the right of integrity"allows artists to protect their works against modifications anddestructions that are prejudicial to their honor or reputations."House Report at 6, as reprinted in 1990 U.S.C.C.A.N. at 6915. TheReport also notes that the rights provided by VARA are "analogousto 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 beprejudicial to the artist's honor or reputation. Given the stated 14 action in relation to, the said work, which would beprejudicial to his honor or reputation.Berne Convention for the Protection of Literary and Artistic Worksart. 6bis, Sept. 9, 1986, S. Treaty Doc. No. 99-27, 1161 U.N.T.S.30. Based on revisions to the statutory language made during the 15legislative process, Patry concludes that "where an intentionaldistortion, mutilation, or other modification has already occurred,the plaintiff need not prove harm to his or her honor orreputation." 5 Patry, supra, § 16:22. He further states, withoutsupporting citation, that "[i]t was understood informally" that thefinal version of the provision was designed "to permit a cause ofaction . . . without the need for proof that the artist's honor orreputation was harmed." Id. To the extent Patry's conclusion isthat no evidence of harm is necessary, we reject it as inconsistentwith the available legislative history, as discussed above. It maybe, however, that Congress's concern was only that a plaintiff notbe required to prove the actual amount of damage to reputation, butcould opt for the statutory damages remedy upon showing prejudice.See 17 U.S.C. §§ 501(a), 504(c) (stating that a VARA plaintiff mayelect to recover statutory damages instead of actual damages andprofits).-32-purpose of the legislation and the similar depiction of theintegrity right in the Berne Convention, we conclude that Congressintended the prejudice requirement to apply to the right ofintegrity whether the remedy sought is injunctive relief ordamages.15 Although VARA does not define the terms "prejudicial,""honor," or "reputation," the House Report recommended that theprejudice inquiry "focus on the artistic or professional honor orreputation of the individual as embodied in the work that isprotected," and "examine the way in which a work has been modifiedand the professional reputation of the author of the work." House -33-Report at 15, as reprinted in 1990 U.S.C.C.A.N. at 6925-26(footnotes omitted). Relying on dictionary definitions ofprejudice, honor and reputation, the district court in Carterconcluded 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 thatthe focus is on the artist's reputation in relation to the alteredwork of art; the artist need not have public stature beyond thecontext of the creation at issue. See House Report at 15, asreprinted in 1990 U.S.C.C.A.N. at 6925 ("[A]n author need not provea pre-existing standing in the artistic community."). 2. The Right of Attribution VARA's right of attribution grants the author of a workof visual art the right, in part, (1) "to claim authorship of thatwork"; (2) "to prevent the use of his or her name as the author ofany work of visual art which he or she did not create"; and (3) "toprevent the use of his or her name as the author of the work ofvisual art in the event of a distortion, mutilation, or othermodification of the work which would be prejudicial to his or herhonor or reputation." 17 U.S.C. § 106A(a)(1),(2). The right"ensures that artists are correctly identified with the works ofart they create, and that they are not identified with workscreated by others." House Report at 6, as reprinted in 1990 Section 106A(a)(3) states that the author of a work of 16visual art shall have the right "(A) to prevent any intentionaldistortion, mutilation, or other modification of that work whichwould be prejudicial to his or her honor or reputation" and theright "(B) to prevent any destruction of a work of recognizedstature."-34-U.S.C.C.A.N. at 6915. In addition, if a work of visual art hasbeen distorted or modified (and, unlike the integrity right, theoriginal distortion or modification need not be intentional),associating the author's name with the distorted work against hiswishes would violate his right of attribution. The right of attribution under VARA thus gives an artista claim for injunctive relief to, inter alia, assert or disclaimauthorship of a work. Whether VARA entitles an artist to damagesfor violation of the right of attribution is a separate question.We find the answer in the difference between the statutory languageon the right of integrity and the language on the right ofattribution. Subsection (a)(3) of section 106A, which codifies theright of integrity, is further divided into two subsections: (A)confers the right to protect the work against intentionalalterations that would be prejudicial to honor or reputation, and(B) confers the right to protect a work of "recognized stature"from destruction. Although both subsections are framed as rights 16"to prevent" certain conduct, they both also contain an additionalclause stating that the occurrence of that conduct is, at least incertain circumstances, "a violation of th[e] right" to prevent the -35-conduct from happening. See 17 U.S.C. § 106A(a)(3)(A) ("anyintentional distortion, mutilation, or modification of that work isa violation of that right"); id. at § 106(a)(3)(B) ("anyintentional or grossly negligent destruction of that work is aviolation of that right"). No such "violation" clause is included in the sectionscodifying the right of attribution. See Nimmer, supra, at§ 8D.06[B][1] ("The statute does not make any provision to redressviolation of any of the foregoing three attribution rights."). Thelegislative history sheds no light on this difference, but Nimmerspeculates as follows: Perhaps the implication is that whereas anintegrity violation could give rise to amonetary recovery, failure to attribute isremediable solely through injunction. If thatconclusion were intended, Congress certainlycould have expressed its intent lessobliquely.Id. We agree with Nimmer's surmise that VARA does not provide adamages remedy for an attribution violation. Where the statutorylanguage is framed as a right "to prevent" conduct, it does notnecessarily follow that a plaintiff is entitled to damages once theconduct occurs. The question is whether "doing" the act the artisthas a right to prevent also triggers a damages remedy, and thestatutory language indicates that Congress answered that questionfor the attribution right differently from the integrity right. -36- It is also noteworthy that Congress crafted a damagesremedy for the destruction of a work of recognized stature that isnarrower than the right to prevent destruction of such works. While an artist may "prevent any destruction of a work ofrecognized stature," only an "intentional or grossly negligentdestruction of that work is a violation of that right." 17 U.S.C.§ 106A(a)(3)(B) (emphasis added). This narrowing further indicatesthat Congress did not intend a damages remedy to ariseautomatically from the right to prevent conduct. In failing toprovide a damages remedy for any type of violation of the moralright of attribution, Congress may have concluded that artistscould obtain adequate relief for the harms of false attribution byresorting to the Copyright Act and other traditional claims.B. Büchel's VARA Claims With this legal framework in mind, we turn to the recordbefore the district court. By dismantling "Training Ground," theMuseum prevented the further use of Büchel's name in connectionwith the work, eliminating any basis for injunctive relief, and wetherefore do not address the attribution claim in our VARAanalysis. We thus consider the evidence in the light mostfavorable to Büchel in determining whether there are genuine issuesof material fact regarding the alleged violations of his right ofintegrity. -37- As noted above, the district court concluded thatBüchel's right of integrity was not implicated by MASS MoCA'sconduct. The court found that "nothing in MASS MoCA's planneddisplay of the unfinished installation would have violated Büchel'sright of integrity, for the simple reason that no completed work ofart ever existed on these facts for the museum to distort, mutilateor modify." 56 F. Supp. 2d at 260. Although the court stated thatit would assume that VARA applied to unfinished works, its analysisappears to be influenced by a more limited view of the statute'sscope. The court stated that "[t]o suggest that the display of anunfinished and abandoned work somehow constitutes a distortion,mutilation, or modification of that non-existent work is simplyinconsistent with the ordinary usage of those terms." Id. Havingconcluded that VARA applies with full force to unfinished works,however, we cannot accept the district court's reliance on theunfinished state of "Training Ground" to minimize the rights of itscreator. It cannot be disputed that, at least by the time Büchelleft North Adams in December 2006, "Training Ground" was "fixed"within the meaning of the Copyright Act – i.e., materials had beenplaced in Building 5 "by or under the authority of the author" ina "sufficiently permanent or stable" manner to allow the work to be"communicated for a period of more than transitory duration." 17U.S.C. § 101. The elements of the installation had been chosen by -38-Büchel, and his assistants and the Museum workers had put numerouscomponents of the project in place under his direct supervision.Although far from complete, the work by the end of 2006 includedparts of the "Saddam Compound" and the cinema, and Büchel and hisassistants had begun detailing several of the containers intendedto house elements such as a jail, museum and voting booths. Withthis substantial work in place, the sculpture had an establishedpresence in Building 5. Büchel thus had rights in the work thatwere protected under VARA, notwithstanding its unfinished state. Büchel alleges that MASS MoCA violated his right tointegrity in three distinct ways: first, by continuing to work onthe installation without his authorization, particularly in early2007, and by then exhibiting the distorted artwork to the public;second, by using tarpaulins to "partially cover[]" – and thusmodify and distort – the installation, and allowing Museum visitorsto see it in that condition; and third, merely by showing Büchel'swork in its unfinished state, which he claims was a distortion.Büchel asserts that these actions caused prejudice to his honor orreputation. As we shall explain, we conclude that summary judgmentwas improperly granted to MASS MoCA because material disputes offact exist concerning the first of Büchel's integrity claims –i.e., that MASS MoCA modified "Training Ground" over hisobjections, to his detriment. We further conclude that the record -39-contains sufficient evidence to allow a jury to find that MASSMoCA'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 hisdeparture from North Adams in December 2006, the Museum encroachedon his artistic vision by making modifications to the installationthat in some instances were directly contrary to his instructions.In rejecting Büchel's VARA claims, the district court described theMuseum's actions as perhaps "occasionally misguided" attempts "toimplement Büchel's long-distance instructions." 565 F. Supp. 2d at260. The court found that these "[f]umbled efforts to assist increating, or failing to create, a work of art are not equivalent todistortion, 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 wouldallow a finding that at least some of the Museum's actions violatedVARA. The record permits the inference that, even during his timeas an artist-in-residence at MASS MoCA, Museum staff members weredisregarding his instructions and intentionally modifying "TrainingGround" in a manner that he did not approve. For example, onDecember 14, 2006, just before he left for the holidays, Büchelcomplained to Thompson that in "many cases people just do stuff -40-without checking back if its ok to do s[omething], when they thinkby themselves the plan has to be changed." Büchel expressedfurther concerns in an email to Thompson later that month: "I don't[k]now if this is really a great opportunity when you get aninvitation to do a show, where you have to make constantly tons ofcompromises, where you have to fight constantly againststubborn[n]ess as well [as] against the institution and work withpeople 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, Büchelagain accused the Museum of "sabotage acts" and, in a January 16letter, issued an ultimatum: he would return to North Adams tocomplete "Training Ground" only if the Museum assented to a numberof specific conditions. Aside from certain budgetary concernsirrelevant here, Büchel included the following among his list ofdemands: There is NO negotiation about the scopeof the project. There are no elements to be eliminatedas you propose and I don't accept any ordersand any more pressure or compromises howthings have to be done, neither from you oryour crew . . . . I will not give you any permission toshow an unfinished project nor will I show norlet you show any work in progress, as youproposed already earlier.I will not accept without consequencesany additional sabotage acts, as done toartworks of mine and as well done to theinstallation in progress[.] "I wrote very clearly immediately to [Dante Birch, the 17Museum's production manager] not to use the method we talked aboutand stop it . . . , as well cinder block walls have to be partlyredone that have been built without my instruction . . . ."-41-The letter also identified several points of disagreement with theMuseum concerning the content of the project, including Büchel'sinsistence that there be "no transport street through theexhibition" and that he did not "need to be told if an airplanefuselage section fits in the show or not. I don't negotiateconstantly my art with you or Nato . . . ." Accusing the Museumdirector of showing "little respect towards [his] plans," he toldThompson "please don't tell me all the time how I have to do myproject regarding its scope and it's [sic] methods that needs [sic]to be applied." Unsatisfied with the Museum's response to his list ofdemands, Büchel wrote to Thompson again on January 27, 2007. Hewarned 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 beeninstalled against his wishes. Thompson and Büchel traded emails 17during the first few days of February, with Büchel stating that hewould "not negotiate further this matter . . . because almost anyof the main conditions are simply not fulfilled" and Thompsonwriting that he believed the Museum had "responded to [Büchel's]main issues." The term "Plan B" appears in the record in a February 14, 182007 email from Thompson to other Museum staff. -42- After that, direct communication between Büchel and theMuseum became sparse. It was during this time, Büchel alleges,that the Museum developed a "Plan B" to be implemented in the 18event – which was looking increasingly likely – that he did notreturn to finish the exhibit. Plan B, which involved publiclyexhibiting the unfinished installation without the artist'spermission, called for completing various elements of theinstallation in a way the Museum knew might differ from Büchel'sartistic concept. Büchel cites an email chain on February 14 thatincluded Joseph Thompson and Dante Birch, in which Thompson,stating that the Museum "seem[ed] to be getting closer and closerto Plan B," gave specific instructions on various elements of theinstallation. Thompson suggested that Museum staff do "[a]nythingelse Dante and Nato feel is known with 80% certainty." At least some Museum staff members recognized thatcontinuing to work on the installation without Büchel's input mightbe problematic. Later in the February 14 email chain, Dante Birchnoted that he was “interested in protecting the museum fromintellectual property issues.” Pointing out that the show wasadvertised as a Büchel in the Museum's schedule, he stated thatwhen reviewers came, "the question will be 'what is it?' . . . andif it's reviewed as a Buchel we’re in deep shit.” Thompson’s plans -43-also raised concern among other MASS MoCA employees, includingcurator Susan Cross, who cautioned Thompson in a January 31 emailthat "we tend to forget that whether we're doing the welding ornot, there is an 'author' – an artist for whom we shouldn't makedecisions. . . . At what point, if at all, does an artist lose hisright 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, Bücheldescribed ways in which he felt the Museum had knowinglydisregarded his specific instructions. For example, MASS MoCA'sdecision to build a cinderblock wall through the Cape Cod-stylehouse in the installation, despite Büchel’s expressed desire thatthe construction await his return, resulted in what Büchelconsidered a "big distortion of the meaning of that element." The record is replete with similar allegations concerning othercomponents of the installation, including the cinema, the bombcarousel, the Saddam spiderhole, the police car and the mobilehome. Indeed, even the Museum, in its August 31, 2007 memorandumof law in support of its motion for summary judgment, admitted thatthe installation "[m]aterials as they now stand reflect significantaesthetic and design choices by MASS MoCA personnel, including withrespect to the layout of the [m]aterials, and with respect to theselection and procurement of pre-existing buildings and vehicles This assertion by MASS MoCA was made to support its 19contention, rejected by the district court and halfheartedlyrenewed on appeal, that the unfinished installation mightconstitute a joint work of Büchel and the Museum. A claim of jointauthorship requires proof that the parties "entertain in theirminds the concept of joint ownership." Thomson v. Larson, 147 F.3d195, 201 (2d Cir. 1998) (quotation marks and citation omitted).Here, multiple facts indicate that the parties' understanding fromthe outset was that "Training Ground" was solely a Christoph Büchelwork of art. The Museum's December 6, 2006 postponementannouncement described the work as "Christoph Büchel's vastinstallation" and, as reflected in the emails described above,Museum personnel internally recognized Büchel as the artist, atleast as "Training Ground" was originally conceived. It is alsoundisputed that, at the outset of their relationship, the partieshad agreed that Büchel alone would hold the copyright in thefinished work. These facts negate any claim of joint authorship. In his deposition, Thompson testified as follows: 20 [T]here was a whole long list of things for which we hadadequate direction and understanding that we couldcontinue forward to a certain point. When the work beganto get very detailed and would require input fromChristoph, if we could get the input from him, we wouldcontinue, and if we didn't, we would stop.-44-that have been modified and incorporated into the [m]aterials."(Emphasis added.)19 MASS MoCA argues that the evidence, taken in itsentirety, does not add up to a triable issue with respect to aviolation of Büchel’s right of integrity, but shows only thatMuseum personnel were attempting to carry out Büchel's vision basedon his instructions. Indeed, the Museum notes that the work slowedas Büchel’s instructions became unavailable. MASS MoCA 20specifically disputes Büchel's reading of the February 14 emailchain as demonstrating the Museum's disregard of his creative -45-rights over the installation, asserting that the discussion amongits staff members in fact reflects a conscious effort to determinehow far the Museum could appropriately go in light of the remaininginstructions left by the artist. In one email, for example,Thompson noted that "we are putting the correct objects in thespaces cb indicated . . . . That's not 'doing a buechel [sic]'that's prepping for buechel [sic] assuming, as we still are, thatthere is some chance we'll see him here again." Othercommunications in the record also could be interpreted as showingthe Museum doing its best to carry out Büchel’s concept for the artwork. As we have noted, a jury may well accept the Museum'sdepiction of its intention and its actions. At this juncture,however, the record must be viewed in the light most favorable toBüchel. The evidence we have described would permit a jury to findthat the Museum forged ahead with the installation in the firsthalf of 2007 knowing that the continuing construction in Büchel'sabsence would frustrate – and likely contradict – Büchel's artisticvision. We thus conclude that a jury issue exists as to whetherthese actions effected an intentional distortion or othermodification of "Training Ground" that subjected MASS MoCA toliability under VARA. The record also contains evidence from which a jury couldconclude that the Museum's alterations had a detrimental impact on Thompson told an outside consultant for the Museum in March 212007 that a curator at the New Museum in New York had just viewedthe installation "and said it was one of the best works he's seenin the past three years." -46-Büchel's honor or reputation. An article in the Boston Globereported that, in February, Museum officials had shown theunfinished project to a group of Museum directors and curators whowere attending an arts conference in the area. See Geoff Edgers,Behind doors, a world unseen: Dispute cloaks massive installationat MASS MoCA, Boston Globe (March 28, 2007), available atwww.boston.com/ae/theater_arts/articles/2007/03/28/behind_doors_a_world_unseen/ ("Behind doors, a world unseen"). Anotherjournalist reported on observing the unfinished (and stilluntarped) work. See The Show Will Go On, supra. Although the commentary generated by these visits is notall negative, there was sufficient evidence for a jury to find 21that the changes to "Training Ground" caused prejudice to Büchel.The New York Times noted that the exhibition would "certainly givepeople unfamiliar with his obsessive, history-driven aesthetic aninaccurate sense of his art, and this is indeed a form of damage."Is It Art Yet?, supra. A critic for the Boston Globe similarlyobserved that "many people are going to judge [Büchel] and his workon the basis of this experience." Ken Johnson, No admittance: MASSMoCA has mishandled disputed art installation, Boston Globe, July1, 2007, at 1N. One viewer, writing in Commentary magazine, -47-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 (June4, 2007). A review published in Berkshire Fine Arts – subtitled"Crap Under Wrap" – concluded that it would be a "huge mistake" touncover the installation, which offered "virtually nothing ofsubstance or interest." Crap Under Wrap, supra. The record thus shows that some viewers of theinstallation reacted unfavorably to the work in its allegedlymodified and distorted form. A factfinder might conclude, ofcourse, that it was Büchel's underlying concept (notwithstandingits unfinished state) rather than MASS MoCA's actions that elicitedthe negative reactions. However, a jury could also reasonablyinfer that the negative impressions resulted from the Museum'sunauthorized modifications to "Training Ground," diminishing thequality of the work and thereby harming Büchel's professional honoror reputation as a visual artist. In concluding that Büchel has adduced sufficientevidence to support a right-of-integrity claim, we reject theMuseum’s assertion that to find a violation of Büchel's right ofintegrity in these circumstances would make it impossible forparties to collaborate on large-scale artistic works. The Museumwarns that, under Büchel’s interpretation, "no one other than theartist himself . . . may ever perform any work in fabricating -48-visual art unless that specific task has been authorized by theartist." We disagree. Although the artist's vision must govern,that principle does not prevent collaboration at the implementationlevel so long as the artist's vision guides that implementation.Here, Büchel alleges a campaign of intentional distortion andmodification to his work in which Museum personnel repeatedlyignored his express wishes. Our holding that the summary judgmentrecord precludes an affirmance of the district court on this claimmay serve as a cautionary tale to museums contemplating similarinstallations in the future – guiding them to document the terms oftheir relationship and obtain VARA waivers where necessary – but itdoes not prevent museums or other collaborators from workingcooperatively with artists on such non-traditional artworks. 2. Showing "Training Ground" Covered with Tarpaulins Büchel also claims that MASS MoCA improperly modified anddistorted “Training Ground” when it partially covered it with theyellow tarpaulins and displayed it in that condition. He assertsthat the record shows beyond dispute that visitors looked behindthe tarps, that the tarp-adorned installation was "judged by othersto be Büchel's work, and that his honor and reputation were harmedby it." In response, the Museum argues that the yellow tarpaulinswere merely functional – a way of keeping people "out" of theinstallation – rather than an aesthetic modification of the artworkthat gave MASS MoCA patrons a distorted view of it. -49- Although the tarpaulins did prevent visitors to theMuseum from seeing the entire unfinished installation, the recordshows 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 theyrise only about two feet above eye level, sothey don't cover much. You can easily crouchdown to slip your head underneath or peekthrough the slits between the vinyl sheets.Beyond the passageway formed by the tarps, themonumental elements of the installation riseall around you, plain as day — the cinderblockwalls, the two-story house, the guard tower,the trailers, the carnival ride, all compactedtogether in a claustrophobic, politicallysurreal borough of hell, George Orwell by wayof David Lynch. Thomas Micchelli, Christoph Büchel Training Ground for Democracy,The Brooklyn Rail (September 2007), available athttp://www.brooklynrail.org/2007/09/artseen/buchel . Another criticnoted that the installation “under all the tarps is really kind ofa conceptual peep show. It doesn’t take much effort or imaginationto see most of the work . . . . Mass MoCA is hiding an elephantbehind a napkin,” and called it a “wink, wink, wrap show.” CrapUnder Wrap, supra. Photographs in the record confirm that thecovers did not obscure the general path and layout of theinstallation. Indeed, given the location of "Training Ground,"visitors to "Made at MASS MoCA" could not avoid seeing theunfinished "Training Ground" bedecked in tarpaulins. Indeed, the Boston Globe's art critic, Ken Johnson, 22described 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 MishandledDisputed Art Installation, supra. The juxtaposition left Johnsonwith the impression that MASS MoCA was "exacting revenge" againstthe artist "by turning his project into a show that misrepresents,dishonors, vilifies, and even ridicules him." Id.-50- Nonetheless, although the installation unquestionablylooked different with the tarpaulins partially covering it, weagree with the district court that the mere covering of the artworkby the Museum, its host, cannot reasonably be deemed an intentionalact of distortion or modification of Büchel's creation. Toconclude otherwise would be to say that, even if all had gone well,the Museum would have been subject to a right-of-integrity claim ifit had partially covered the work before its formal opening toprevent visitors from seeing it prematurely. This is not to say that MASS MoCA was necessarily actingwith pure intentions when it created "Made at MASS MoCA" in closeproximity to the tarped "Training Ground." It might be a fairinference that the Museum was deliberately communicating its angerwith Büchel by juxtaposing his unfinished work with the successfulartistic collaborations depicted in its new exhibition. Thepartial covering of "Training Ground" may have been intended tohighlight, rather than hide, the failed collaboration. The right 22of integrity under VARA, however, protects the artist fromdistortions of his work, not from disparaging commentary about his -51-behavior. In our view, a finding that the Museum's covering of theinstallation constituted an intentional act of distortion ormodification of Büchel's artistic creation would stretch VARAbeyond sensible boundaries. 3. Exhibiting "Training Ground" in Its Unfinished State Büchel maintains that, even aside from the allegedmodifications to “Training Ground,” merely exhibiting the work ofart in its unfinished state, without the artist’s consent,constitutes a distortion. We reject this claim. A separate moralright of disclosure (also known as the right of divulgation)protects an author's authority to "prevent third parties fromdisclosing [his or her] work to the public without the author'sconsent," 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 withdrawaland instead focuses on the rights of attribution and integrity. . . ."). Although Büchel proffered an expert who opined thatshowing an unfinished work without the artist’s permission isinherently a distortion, we decline to interpret VARA to includesuch a claim where a separate moral right of disclosure is widelyrecognized in other jurisdictions and Congress explicitly limitedthe statute's coverage to the rights of attribution and integrity.See Amy M. Adler, Against Moral Rights, 97 Cal. L. Rev. 263, 268 -52-(2009) (noting that most European countries "recognize a right ofdivulgation, giving the artist the right to decide when (andwhether) the work is complete and can be shown"); Rigamonti, supra,at 356 ("The standard set of moral rights recognized in theliterature consists of the author's right to claim authorship(right of attribution), the right to object to modifications of thework (right of integrity), the right to decide when and how thework in question will be published (right of disclosure), and theright to withdraw a work after publication (right of withdrawal)."(footnotes omitted)); 5 Patry on Copyright § 16:23 (noting thatVARA does not give the artist "a right to prohibit display ofmutilated versions of his or her work, only the right to prohibitthe mutilation itself"). Any right Büchel possesses to withholddisplay of his artwork must be found outside VARA. We considerbelow his claim to such a right under section 106(5) of theCopyright Act. See infra Section IV. 4. Summary of VARA Claims After careful review of the record, we are persuaded thata reasonable jury could find that Büchel is entitled to reliefunder VARA based on the Museum's continuing work on "TrainingGround" over his objections. Genuine disputes of material factforeclose summary judgment for either Büchel or MASS MoCA on thatclaim. We find no merit, however, in Büchel's claim that MASS MoCAintentionally modified or distorted "Training Ground" by covering -53-it with tarpaulins, and we reject as outside the scope of thestatute Büchel's claim that the Museum violated VARA by displayingthe installation over his objections. We affirm the districtcourt's grant of summary judgment for the Museum on Büchel's right-of-attribution claim, which became moot when MASS MoCA dismantledthe installation in 2007.IV. We now assess Büchel's challenge to the grant of summaryjudgment for MASS MoCA on his Copyright Act claims.A. Public Display The owner of a copyrighted work has the exclusive rightto "display the copyrighted work publicly." 17 U.S.C. § 106(5).Displaying a work is defined as "show[ing] a copy of it, eitherdirectly or by means of a film, slide, television image, or anyother device or process." 17 U.S.C. § 101. A "copy" includes theoriginal. Id. Büchel argued below, as he does on appeal, that theMuseum's repeated public exhibitions of "Training Ground forDemocracy" constituted a public display of his work in violation ofhis exclusive right under section 106(5). The district court gaveno explicit reason for its dismissal of this claim, remarking onlythat "[f]or the reasons already stated," presumably in itsdiscussion of VARA, MASS MoCA was "entitled to judgment on thiscount." 565 F. Supp. 2d at 261. -54- The court also remarked, however, that since Büchel"would have suffered a violation of no right recognized by thisstatute, this messy situation simply fell outside the boundary ofVARA and, a fortiori, outside the more general provisions of theCopyright Act." Id. at 260. This statement reflects a misreadingof the Copyright Act. As we have explained, the moral rightsgranted to specific artists under VARA are separate and independentfrom 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. SeeWu, supra, at 164 (observing that VARA has "acquired the attributesof a false talisman," both because artists overly rely on it in"instances where economic rights, including traditional rights ofcopyright provided by Section 106 . . . would more effectivelyprotect their interests" and also because courts tend to view VARAclaims as "devalu[ing] entitlements to economic rights pleaded intandem with VARA claims"). We thus turn specifically to this claim. The Museumargues that Büchel has failed to present a triable issue of fact onhis claim under section 106(5) because the unfinished work wasnever publicly displayed. However, as we have described in thecontext of our VARA discussion, there is significant record In addition to the journalists and Museum personnel noted 23earlier, a newspaper reported that the mayor of North Adams hadseen the exhibit twice, once with Governor Deval Patrick. SeeBehind doors, a world unseen, supra. For example, in an email sent on September 11, 2006 to 24curator Nato Thompson, the Museum's director (Joseph Thompson)said: "I assume you've already laid out the general idea [toBüchel] (we build it, and it belongs to you)," and also noted thatBüchel had the right to "sell all or part of it." The Museum'sproposed contract, which was never signed, would have conferredownership on Büchel. It stated that, "[u]pon termination of theexhibition, the fabricated work shall be owned outright by you,-55-evidence suggesting that the work was repeatedly and deliberatelyexhibited to numerous individuals.23 MASS MoCA also asserts an affirmative defense undersection 109(c), which provides that "the owner of a particular copylawfully made under this title, or any person authorized by suchowner, is entitled, without the authority of the copyright owner,to display that copy publicly." 17 U.S.C. § 109(c). The Museumargues that it owned the physical copy of "Training Ground," andthat section 109(c) therefore permitted it to display theunfinished work. Here again, however, the record reveals disputedissues of fact with respect to whether the Museum's copy was"lawfully made," as it may have been created in violation of theartist's rights under VARA. Moreover, Büchel introduced evidenceto rebut the Museum's assertion that "the installation's variouscomponents" all belonged to, or were purchased by, MASS MoCA. Finally, Büchel presented evidence that the Museum understood thatthe physical copy of the installation belonged to him. 24 including all copyrights and related preparatory materials." -56-Accordingly, viewing the evidence in the light most favorable toBüchel, we cannot say that a reasonable jury could not concludethat the Museum violated his exclusive right to publicly display"Training Ground for Democracy."B. Derivative Works The Copyright Act also grants artists the exclusive rightto "prepare derivative works based upon the copyrighted work." 17U.S.C. § 106(2). A derivative work is defined as one "based uponone or more preexisting works," such as a translation, musicalarrangement, fictionalization, "or any other form in which a workmay be recast, transformed, or adapted." 17 U.S.C. § 101. Aderivative work includes any work "consisting of editorialrevisions, annotations, elaborations, or other modifications which,as a whole, represent an original work of authorship." Id. Büchelbrought two claims based on this provision, asserting that MASSMoCA created unauthorized derivative works based on theinstallation itself and on the work's models and plans. The district court ruled that, "[e]ven assuming that thestumbling, and eventually abandoned, process of collaborationduring 2006 produced an original work of art subject to copyrightprotection, which is highly doubtful, clearly no 'derivative' workof art was created by MASS MoCA's attempt (however flawed) to playits part in this process." 565 F. Supp. 2d at 261. It further Our analysis of the right-of-integrity tarpaulin claim 25disposes as well of Büchel's contention that covering theinstallation constituted a modification of the original work thatresulted in the creation of a derivative work.-57-rejected Büchel's argument that, by placing tarpaulins over theunfinished installation, the Museum created a separate,unauthorized derivative work. Id. On appeal, Büchel summarily argues that what the Museumdisplayed in Building 5, both with and without the yellowtarpaulins, "recast" or "transformed" the work that he hadoriginally set out in his plans and left behind in December 2006,thus creating derivative works under the Copyright Act. In 25response, MASS MoCA again argues that its staff was followingBüchel's instructions when working on "Training Ground" in hisabsence, and that the Museum therefore was merely executingBüchel’s vision rather than exercising its own artistic judgment tocreate a new, derivative artwork. A derivative work within the meaning of the Copyright Act"consists of a contribution of original material to a pre-existingwork so as to recast, transform or adapt the pre-existing work,"and the variation from the original must be "sufficient to renderthe derivative work distinguishable from its prior work in anymeaningful 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 -58-held, Büchel's contention that his work was modified without hispermission and to his detriment gives rise to a right-of-integrityclaim 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 paragraphthat purports to analyze the derivative work claim, and thatparagraph 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 withinthe meaning of the Copyright Act to qualify as a derivative work.His reply brief adds another paragraph, citing cases, but he againasserts in summary fashion that the modifications resulted in aderivative work. He states that the degree of creativity neededfor a derivative work is minimal, but does not explain how theMuseum's alterations create a new work that, as a whole, meets theCopyright Act's originality requirement. The law applicable toderivative work claims, particularly as it intersects with VARA'sprotection 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 andEconomic Analysis, 26 J. Legal Stud. 95, 114-116 (1997). Büchel'sundeveloped argument is so perfunctory that we deem the claimwaived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990) (stating that, on appeal, "issues adverted to in a -59-perfunctory manner, unaccompanied by some effort at developedargumentation, are deemed waived").V. We summarize our holdings: 1. VARA's protection of an artist's moral rights extendsto unfinished creations that are "works of art" within the meaningof the Copyright Act; 2. The right of integrity under VARA protects artistsfrom distortions, mutilations or modifications of their works thatare prejudicial to their reputation or honor, and prejudice must beshown for both injunctive relief and damages; 3. Büchel has adduced sufficient evidence to raise agenuine issue of material fact as to whether MASS MoCA violated hisright of integrity on one of his three asserted bases forliability, namely, by modifying "Training Ground" over hisobjections in a manner that harmed his honor or reputation. Hisright-of-integrity claims based on the yellow tarpaulins and themere display of "Training Ground" lack merit; 4. Büchel's right-of-attribution claim is moot, as VARAprovides only injunctive relief to protect the right of attributionand the installation no longer exists; 5. The record reveals a genuine issue of material factas to whether MASS MoCA violated Büchel's exclusive right undersection 106(5) of the Copyright Act to display his work publicly; -60- 6. Büchel fails to adequately develop his claim thatMASS MoCA violated his exclusive right under section 106(2) toprepare derivative works based on "Training Ground," and that claimis therefore waived. We thus remand the case for further proceedings onBüchel’s remaining right-of-integrity claim under VARA and hispublic display claim under section 106 of the Copyright Act. Affirmed in part, vacated in part, and remanded forfurther proceedings consistent with this decision. Each party isto bear its own costs.