Law School’s Concealment of Murals Depicting Slave Labor Doesn’t Violate Artist’s Rights
Artist Samuel Kerson cannot prohibit Vermont Law School under the Visual Artists Rights Act (“VARA”) from concealing murals he painted on the school campus, per a court order issued last week. We cover the decision here.
Factual Background
In 1993, Kerson painted two large murals on the walls of one of the law school’s buildings. The murals, together entitled The Underground Railroad, Vermont and the Fugitive Slave, depict the evils of slavery and the efforts of abolitionists and Vermonters to aid slaves seeking freedom on the Underground Railroad. The work consists of two panels, each 8 feet by 24 feet, painted in acrylic directly on the sheetrock wall. The first panel is entitled Slavery, which depicts the violent capture and forced sale of African people, slave labor, and a slave insurrection. The second panel, entitled Liberation, depicts abolitionists arriving in Vermont, residents sheltering refugee slaves, and Vermonters aiding escaped slaves departing for the Canadian border.
For years, law students complained about the murals and the “cartoonish, almost animalistic” depictions of enslaved Africans. Following complaints, the law school attached plaques to the wall explaining that the murals intend to depict the shameful history of slavery and Vermont’s role in the underground railway. Following George Floyd’s death in 2020, the law school decided to remove or cover the murals permanently because the school “could no longer urge the students to overlook what the mural’s presence said about the atmosphere at VLS for students of color.” In August 2020, the law school’s president sent Kerson a letter notifying him of the school’s intent to remove or cover the murals permanently, giving the artist the opportunity to remove the murals himself and offering to return full ownership to him.
The Lawsuit
Subsequently, the artist sued the school, arguing that the concealment of the murals would violate his right of integrity under VARA. He claimed the concealment would mark his artwork as “offensive” and “unworthy to be viewed,” and would damage his standing as an artist committed to progressive causes. He claimed that the proposed plan to cover his works would destroy, mutilate, or otherwise modify the murals in violation of VARA.
As to how the work would be covered, the law school planned to build a wooden frame around the murals that would support acoustic panels. The panels would conceal the murals, but neither the frame nor the panels would actually touch the murals. (The parties agreed that the sheetrock cannot be removed without damaging the murals.)
On March 10, 2021, the court denied Kerson’s request for a preliminary injunction. The court ruled that the text of VARA does not protect against the concealment or removal from display of artworks and concluded that the artist was unlikely to prevail on the merits. The court converted the law school’s pending motion to dismiss into a motion for summary judgment and directed the parties to submit supplemental briefing.
Summary Judgment Decision
On October 20, 2021, Judge Geoffrey Crawford, the Chief Judge of the U.S. District Court for the District of Vermont, granted summary judgment to the law school.
Under VARA, an artist has the right to “prevent any intentional distortion, mutilation, or other modification of [the artwork] which would be prejudicial to his or her honor or reputation.” In considering whether covering the murals was a “distortion, mutilation or other modification,” the court first held that covering the murals could not possibly be a “distortion” or “mutilation,” so the court only needed to analyze “whether there is something about the word ‘modification’ that invites a broader definition that includes the concealment of the artwork behind a fixed wall.” The court looked to the plain meaning of the word and prior case law to conclude that “modify” “refers to small-scale changes and adjustments,” but not concealment. The court found that interpretation of the statutory term consistent with another provision of VARA – a provision excluding modification “which is the result of conservation, or of the public presentation, including lighting and placement.” The court also noted that another court already ruled that concealing an artwork is not a modification or distortion. See Mass. Museum of Contemp. Art Found., Inc. v. Büchel, 593 F.3d 38 (1st Cir. 2010) (museum covering partially-unfinished work with a tarp did not violate artist’s right of integrity).
The court rejected the artist’s argument that summary judgment was premature because issues of fact existed as to the potential harm that may arise after the works are “entombed” in a narrow area with restricted air circulation. The court found that “VARA is explicit in excluding environmental changes from the modifications that an artist may seek to prevent.” VARA provides: “[t]he modification of a work of visual art which is a result of the passage of time or the inherent nature of the materials is not a distortion, mutilation, or other modification . . . . “ The court opined that any damage, such as mold damage, would “take time to develop,” and therefore they “may fairly be considered sources of damages that are ‘the result of the passage of time’ and therefore excluded under . . . VARA.”
Take-Away Points
Artists and property owners alike would be well advised to consider the artist’s potential VARA rights, and the property owner’s corresponding obligations, prior to having any artwork integrated into a building. Significantly, there is a VARA exception that could have applied if the law school had obtained an advance written waiver from the artist. If you would like to read more about this exception and VARA law regarding works integrated into buildings, read our coverage here.
