Update: Controversial Murals Can Be Covered Up Without Violating Artist’s Rights, Second Circuit Says
The Visual Artists Rights Act (“VARA”) poses no bar to Vermont Law School’s concealment of controversial murals, per a recent Second Circuit Court of Appeals ruling. The decision is a blow to the artist but is consistent with an earlier case from a sister circuit finding that mere concealment of artwork is not actionable under VARA. We cover the decision here.
Background
Links to our prior coverage are here and here. In 1993, Kerson painted two large murals on one of the law school’s buildings, together entitled The Underground Railroad, Vermont and the Fugitive Slave. The first panel depicts the violent capture and forced sale of African people, slave labor, and a slave insurrection. The second panel 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. After George Floyd’s death, the law school decided to cover the murals permanently. The law school notified Kerson of its plans to conceal the murals from public view.
Subsequently, the artist sued the school, claiming that the concealment of the murals would violate his right of integrity under the 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, a federal district court judge in Vermont denied Kerson’s request for a preliminary injunction. Then, in October 2021, the district court granted summary judgment to the law school, finding VARA did not pose a legal bar to the school’s concealment of the murals. After the district court proceedings, the law school carried through with its plans and installed the acoustic panels covering the murals.
Second Circuit Appeal
Kerson appealed to the Second Circuit. He claimed that the district court’s narrow interpretation of VARA’s text was erroneous, and there were unresolved issues of fact as to whether adverse environmental conditions caused by the paneling would modify or destroy the works in violation of VARA, necessitating further court review.
On August 18, 2023, the Second Circuit affirmed the district court’s ruling. Per the Second Circuit, “hiding the [m]urals behind a barrier neither modifies nor destroys them and, therefore, does not violate VARA.”
Relevant VARA Text
As pertinent here, VARA provides that the author of a “work of visual art, “shall have the right”:
(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.
17 U.S.C. § 106A(a)(3)(A)–(B). As noted by the Second Circuit:
As these provisions indicate, VARA protects all works of visual art from intentional distortion, mutilation, or other modification prejudicial to an artist’s honor or reputation but protects only works of “recognized stature” from destruction. In addition, destructions fall within the ambit of VARA’s prohibitions if done with intent or gross negligence, whereas distortions, mutilations, or modifications must be effected with intent.
“Destruction”?
The Second Circuit rejected Kerson’s claim that permanently concealing the murals resulted in their “destruction.” That word plainly means to “damage (something) so thoroughly as to make unusable, unrepairable, or nonexistent; to ruin” (quoting Black’s Law Dictionary). The paneling does not “touch the murals and thus did not physically alter them whatsoever, let alone ruin them or render them unrepairable.” Thus, covering the murals from view did not destroy them.
“Modification”?
The Second Circuit considered the definition of the word “modification” along with the statutory context in which it is used to rule that a work’s mere concealment from view is not a “modification” under VARA. Per the court, the plain meaning of the word “modification” “entails a change to an object that alters some portion of it without radically transforming the whole.” Modifications to a work of art include “certain alterations to the work itself, such as an additional brush stroke, erasure of content, or reorganization of a moveable component.” The word “modify” does not ordinarily describe moving an object to a location in which it cannot be seen; thus, concealing a work does not “modify” it. As “modification” neighbors the words “distortion” and “mutilation” in the statute, “other modification” is “naturally read to bring within VARA’s reach lesser changes to an artwork that, although perhaps short of distortion or mutilation, nevertheless impact how the work is perceived.” Because no portion of the murals remains visible in altered form, the paneling does not “modify” the murals.
The Second Circuit rejected Kerson’s argument that “modification” encompasses changes in how the artwork is presented. He called the court’s attention to VARA’s “public presentation” exception, which provides that “the modification of a work of visual art which is the result of conservation, or of the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification ….unless the modification is caused by gross negligence.”
The Second Circuit found that a public placement decision itself is not a modification:
To illustrate the distinction, consider a painting created out of sensitive materials widely known for their propensity to discolor upon exposure to bright light and high humidity. If the owner of the piece decided to bathe the work in bright floodlights while on display in an open-air studio located in a swamp, the resultant discoloration (but not the lighting and placement decisions) would constitute a modification of the painting. And if this discoloration were the result of gross negligence, the public presentation exception would not shield the art owner from suit under VARA.
Even if nonphysical changes to artwork might qualify as a “modification,” the logic of the public presentation exception counsels against interpreting the statute to encompass concealing an artwork:
Kerson reads the public presentation exception as expanding what it means to modify a work under VARA, but this flips the provision on its head. . . . [T]he public presentation exception generally excludes from the set of actionable “modifications” changes to a work of art that flow from conservation efforts or decisions regarding public presentation. Kerson thus urges us to construe a provision that limits the set of actionable modifications to expand the universe of such modifications. We decline to adopt this anomalous construction.
Does Entombment of the Works Cause Toxic Environmental Conditions Resulting in “Modification” or “Destruction”?
The Second Circuit found that the threatened harm to the murals caused by panel coverings was not actionable under either a modification or destruction theory. A “modification” is only actionable if it is intentional, and Kerson presented no evidence that the school intended to intentionally modify the work. While destruction can be actionable if it is grossly negligent, the court found there was no evidence that covering the panels will result in their destruction. While Kerson’s expert opined that the cover was not “consistent with best practices in the art conservation field,” the court ruled that failure to adhere to those norms of art conservation does not raise a genuine issue of fact as to whether the murals will suffer damage so extensive as to destroy them.
Take-Away Points
VARA provides visual artists with limited rights to prevent destruction of works and to prevent reputational harm caused by changes to their work, balancing artists’ rights against the rights of property owners. The statute, however, does not give artists a categorical right to have their works remain on public display.
The Second Circuit’s decision in Kerson is consistent with another appellate court decision holding that concealing an artwork is not an intentional act of 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).
Prior to having any artwork integrated into a building, artists and property owners alike would be well advised to consider the artist’s potential VARA rights, and the property owner’s corresponding obligations. 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 VARA law regarding works integrated into buildings, read here.)
As for artists, prior to creating commissioned works, artists may wish to negotiate protections for themselves and their artwork in written commission agreements. Commission agreements can specify requirements regarding public presentation and how and where an artwork can be installed and displayed. The agreement can also require the property owner to agree to certain maintenance obligations, and to removal of the artwork if the artwork is not maintained in line with the artist’s requirements. While it may be impossible to predict whether a commissioned artwork later will become undesirable or deemed offensive, artists lacking protections under VARA or contract may wish to try to negotiate at the very least a way to ensure that the artwork is well documented in photographic and/or video depictions for archival and portfolio purposes prior to any permanent concealment.
