Artist’s Murals Can Be Covered Up, Second Circuit Rules

The United States Court of Appeals for the Second Circuit ruled in favor of Vermont Law School late last week in a battle over murals some considered offensive. The murals, painted on the walls of a campus building, depict Vermont’s role in the Underground Railroad.

The artist and plaintiff, Samuel Kerson, painted the murals, titled The Underground Railroad, Vermont and the Fugitive Slave, in 1993. Shortly thereafter, the school began receiving complaints that the work was offensive. According to the Second Circuit opinion, concerns from viewers included the portrayal of enslaved African people “in a cartoonish, almost animalistic state,” and “white colonizers as green, which disassociates the white bodies from the actual atrocities that occurred.” Vermont Law School first decided to post plaques beside the murals in 2014 to provide further explanation, but the complaints continued.

In 2020, the law school sent a letter to Kerson, providing him the opportunity to remove the work within 90 days before the school would remove or cover the murals. However, carpenters found that the murals could not be removed without being damaged. The school then decided to build a wall of acoustic panels around the murals, hiding them from view but not destroying or modifying them. Kerson sued the school, arguing that its plans were in violation of the Visual Artists Rights Act of 1990 (VARA).

VARA is a law that protects artists’ visual work and provides a right of action in the event that a visual work is at risk of modification or destruction. It is intended to protect an artist’s moral rights of attribution and integrity and to prevent the destruction of works of “recognized stature” during their lifetime. However, the Second Circuit noted that it does not give artists “a categorical right to demand that their works remain on display.”

The United States District Court for the District of Vermont denied Kerson’s motion for a preliminary injunction and granted summary judgment to Vermont Law School, concluding, “we do not frequently use ‘modify’ to describe moving an object to a location where it cannot be seen.” In response to Kerson’s concern that the acoustic panels could damage the murals over time, it noted that according to VARA, the “result of the passage of time or the inherent nature of the materials” is not a modification. Kerson then appealed to the Second Circuit, arguing that “permanently concealing an immovable work not only modifies it, but also destroys it for all intents and purposes.”

The Second Circuit agreed with the lower court, determining that VARA’s use of the term “destruction” is unambiguous and does not include covering up a visual work. It also noted, in a similar analysis, that the term “modification” in the law does not include concealing artwork when it does not otherwise alter the work. It determined that there was no evidence that the law school intended to distort, mutilate, or modify the murals with the installation of the panels, noting that VARA only prohibits intentional modifications, and therefore Kerson’s claim on that issue could not stand. Finally, the court noted that there was no support in the record, beyond a mere possibility, that the panels would eventually destroy the murals.

Additional Reading

‘Offensive’ murals can be covered, despite federal law protecting artists, 2nd Circuit says, ABA Journal (August 21, 2023)

Kerson v. Vermont Law School Second Circuit Opinion

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