Artist Says Law School Hiding Murals Will Hurt His Reputation
Law360 (March 7, 2022, 3:27 PM EST) — The decision by the Vermont Law School to hide murals depicting scenes of American slavery behind walls hurts the creator’s reputation and should be viewed as an impermissible “modification” of the work itself, the artist told the Second Circuit on Friday.
Seeking to revive his lawsuit over the concealment of the murals that drew student criticism, artist Samuel Kerson said a Vermont federal judge misapplied the Visual Artists Rights Act in granting summary judgment to the school last fall.
Kerson argued that the term “modification” of artwork in the statute should be interpreted broadly to cover the impact on his professional reputation for creating art that promotes “the struggle for social justice.”
In that light, the intent of VARA to protect both art and artist is implicated by the school’s decision to effectively “whitewash” the murals behind permanent walls, a decision he said was based solely on the murals’ visual content.
“As the walling-off of the murals to permanently prevent them from being seen is tantamount to its destruction, the prejudice to [Kerson’s] honor or reputation has occurred as soon as the wall has been erected, announcing to the world that the murals are offensive, racist and unworthy to be viewed,” he said. “Not only has this denigrated the value of the work itself, it also has undoubtedly tarnished [Kerson’s] reputation as an artist committed to progressive causes.”
The murals in question, painted by Kerson directly onto the walls of a campus community center in 1994, include dramatic interpretations of American slavery and the Underground Railroad, as well as historic figures like John Brown, Frederick Douglass and Harriet Tubman.
The murals have been the subject of controversy at the school and complaints about offensive caricatures of Africans and enslaved people since about 2013, and Kerson refused the school’s request to take them down.
In his federal suit, filed in 2020, Kerson sought an injunction blocking their removal under VARA, the 1990 federal statute that protects artworks of “recognized stature” from destruction or mutilation.
In October, a federal judge approved the school’s plan to erect walls concealing the murals, reasoning that it didn’t amount to an impermissible alteration of the work itself, even if the murals couldn’t be seen.
“By erecting a solid barrier — offset from the surface of the murals — defendant seeks to forestall any claim that it has destroyed the murals, even though they may never be seen again,” the order said. “For purposes of the VARA, concealing the murals behind a wall of acoustic panels is the same as removing a painting from a gallery and storing it out of public view. In either case, the art has not been destroyed.”
In his appeal, Kerson argued that the judge interpreted VARA too narrowly in terms of a “movable” artwork, and was too quick to discount evidence that humidity changes or other effects of walling off the murals could harm them.
The federal court’s decision also “improperly expands” the options available to building owners with artwork subject to VARA, and effectively creates a means to undermine the intent of the law by allowing for artwork to be permanently hidden “as long as the cover-up does not physically touch the artwork.”
“The district court failed to consider that the ultimate impact of respondent’s wall can be the destruction of the murals and that walling-off the murals to permanently block them from view is the same as destroying them as contemplated by the statute,” Kerson said.
An attorney representing the school did not immediately respond to a request for comment.
Vermont Law School is represented by Justin B. Barnard and Karen McAndrew of Dinse.
By Andrew Strickler ·
–Editing by Orlando Lorenzo.