Investigation of Law School’s Removal of Slavery-Themed Murals by 2nd Circuit Court

January 29, 2023

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Racial Injustice School Murals — FILE - Vermont Law School, now called Vermont Law and Graduate School, in Royalton, Vt., is viewed Oct. 8, 2021. A federal appeals court in New York, Friday, Jan. 27, 2023, is considering whether the school modified a pair of large murals when it concealed them behind a wall of panels against the artist's wishes after they were considered by some in the school community to be racially offensive.

The Vermont Law School appeared before the US Court of Appeals for the Second Circuit to defend its ruling allowing the permanent covering of murals depicting the Underground Railroad without violating the Visual Artists Rights Act (VARA). Artist Samuel Kerson argued that the school’s decision to hide his two 1994 murals behind acoustic panels violated VARA. However, the school claimed it followed the law when it concealed the murals following student complaints about their “cartoonish” depiction of enslaved people and the promotion of the “white savior complex.”

The dispute brings to light questions about how far VARA limits the property rights of physical art owners and the extent of exceptions written into the law. The US District Court for the District of Vermont ruled that VARA does not protect an artist’s interest in keeping their art visible or on display. Kerson argued that the panels were an intentional modification that would harm his reputation and the statue allows artists to prevent such harm. The district court, however, ruled that “modification” requires a change to the item and considered the status of the murals to be like art removed from the exhibition and placed in storage by a museum.

The appeals panel appeared sympathetic to Kerson but suggested that his appeal may not hold up under the letter of the law. Circuit Judge Jose A. Cabranes criticized the school’s actions, stating that while they may win the case based on the law, it appeared to him as an observer that the school went to great lengths to ensure that the work of art would never be seen again.
The attorney Justin Barnard argued that the school would have been happy to give Kerson back his artwork, but Kerson insisted that moving it would damage it and the school couldn’t remove it. A curtain was considered a solution, but the school felt it would be a distraction. Barnard argued that the decision should be left to the private institution, not the courts.

Other judges focused on defining the terms of VARA and how they apply. Circuit Judge Debra Ann Livingston asked Kerson’s attorney, Steven J. Hyman, how covering the art modifies it. Hyman explained that covering it is considered modification, and it doesn’t require physical touch but can include altering lighting, placement, or other aspects affecting the appearance of the work. Barnard agreed that touch wasn’t required for modification but argued that once you remove the art from view, there’s nothing left to modify.

Hyman said Congress’s specific understanding in VARA was that movable art could be moved, but fixed art could not. He added that the difference between moving art and keeping it in place is significant. 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 as it pleased. VARA includes a provision stating that an author can sign away rights to prevent modification of inextricable works incorporated into buildings.