Law School’s Covering of Slavery Murals Probed by 2nd Cir. (Correct)

Vermont Law School found a somewhat receptive Second Circuit as it defended a ruling allowing it to permanently cover murals depicting the Underground Railroad without violating an artists’ rights law.

Artist Samuel Kerson argued that the school hiding his two 1994 murals behind bolted-in acoustic panels violated the Visual Artists Rights Act, or VARA, during Friday’s oral argument at the US Court of Appeals for the Second Circuit. But the school says it complied with the law when it hid murals that students complained about for decades as “cartoonish” depictions of slaves and promotion of the “white savior complex.”

The dispute raises questions regarding how far VARA limits the property rights of the owners of their physical art, and the reach of exceptions written into the law. The US District Court for the District of Vermont’s ruling said that “no court has ruled that VARA protects the artist’s interest in keeping his art visible or on display.”

Kerson argued the panels were an intentional “modification of that work which would be prejudicial to his or her honor or reputation,” a harm the staute allows artists to prevent. The district court instead ruled that “modification” requires an item to be changed. It equated the status of the murals to art removed from exhibition and placed into storage by a museum.

The appeals panel expressed some sympathy for Kerson, but also suggested that his appeal might be doomed by the letter of the law. Circuit Judge Jose A. Cabranes, the most openly critical of the school, still told the school’s counsel that “I’m not saying you’re not going to prevail,” but also scrutinized the school’s reasoning for its actions.

“What you’re saying is it’s effectively destroyed, not actually destroyed. It is destroyed for all visual purposes,” Cabranes said. He later told the school’s attorney, Justin Barnard of the law firm Dinse Knapp & McAndrew PC that “You may indeed prevail here on the law, but it does seem to me, as an innocent observer, that VLS went to a curious extent to make sure that this work of art was never seen again.”

Barnard said the school would’ve been “happy to give Mr. Kerson back his art work,” but Kerson insisted that moving it would damage it, and that the school couldn’t remove it, “full stop.” Barnard said a curtain was considered but that allowing that but not a panel created a legal slippery slope. Cabranes said, law aside, it seemed a practical solution, but Barnard said the school felt the curtain would be a distraction.

“There were complaints about the work for years,” Barnard said. “This is the sort of decision that should be left for a private institution to make, not the courts.”

Concealing or Modifying

Other judges focused more on defining the terms of VARA and how they applied. Eastern District of New York Judge Rachel Kovner, who sat on the appellate panel, asked Kerson’s attorney, Steven J. Hyman of McLaughlin & Stern LLP, how covering the art modifies it. After Hyman told her that “it modifies it because it covers it, the act of covering it is modification,” Kovner pressed further.

“What’s the definition of modification that encompasses concealing it?” she asked.

Hyman said the act of covering is modification, and said modification doesn’t require physical touching but can include altering the lighting, placement or other aspects affecting how the work appears. The school’s attorney Barnard had agreed touch wasn’t required for modification, but said that once you remove art from view, there’s “nothing left to be modified.”

“What about taking down art, and putting it in a closet?” Kovner asked Hyman, invoking the district court’s analogy to art put in storage.

Hyman said there was a “specific understanding by Congress in this statute that art that’s movable can be moved, and that art that is fixed cannot.”

“The difference between moving art and keeping it in place is significant,” Hyman said. “In one place you are taking the art, which you can do, and move it to a box. On the other hand you are bringing the box to the art and covering it up so it can’t be seen.”

During rebuttal, Hyman said “all the school had to do” was put Kerson on notice when he painted the murals that it had “the right to do with it what they could.” A provision in VARA says an author can sign away rights to prevent “distortion, mutilation, or other modification” of inextricable works incorporated into buildings.

Circuit Judge Debra Ann Livingston also sat on the panel.

Rubin Kidney Myer & Vincent also represents Kerson.

The case is Kerson v. Vermont Law School, 2d Cir., No. 21-2904, oral argument 1/27/23.