For the past two years, administrators at Vermont Law and Graduate School have been locked in a legal battle with the artist they commissioned to paint a set of murals in the 1990s. Painted on the walls of one of their school buildings, the two murals depict the brutality of slavery, including a slave market.
The administrators moved to conceal the murals, which some students believed depicted Black people in racist ways. But the artist, a white man named Sam Kerson, sued to block the school from hiding his work, saying the concealment violated federal law.
Under the Visual Artists Rights Act of 1990, artists have certain “moral rights” to their work, which include the right to prevent art from being destroyed, modified or distorted without their consent. Kerson’s lawyers had argued that the school’s installation of acoustic panels was equivalent to modifying, and even destroying, the 24-foot-long murals.
A federal appeals court rejected Kerson’s argument last week, ruling that “ensconcing a work of art behind a barrier neither modifies nor destroys the work.”
“Modification, as conventionally understood, does not include concealing a work of art behind a solid barrier, assuming the work remains intact while hidden from view,” a three-judge panel of the U.S. Court of Appeals for the Second Circuit said in its decision, which affirmed a district court ruling.
Steven Hyman, a lawyer for Kerson, 77, said the court set a dangerous precedent.
“The restrictive definition of modification or destruction is just inconsistent with the meaning and purpose of VARA, which is to preserve and protect art and to prevent changes to art that would prejudice the honor and integrity of the artists,” he said.
Lisa Lance, a spokeswoman for Vermont Law and Graduate School, in South Royalton, said in a statement that it was pleased with the decision, “which we believe strikes the appropriate balance among the competing interests at stake.”
Art experts said the court’s ruling was in line with past interpretations of VARA.
“The artists’ rights do have to be balanced with those of the real property owners, and this subset of VARA-protected works that are installed and cannot be removed without destruction requires a special balancing act,” said Megan Noh, a partner at the New York law firm Pryor Cashman who was not involved with the case.
The court’s decision could make artists more subject to the whims of the public, said Michele Bogart, a professor emeritus of art history at Stony Brook University. Artists “are vulnerable to having their work removed because somebody doesn’t like it,” she said.
Kerson was commissioned by the school in 1993 to paint the murals. They portray the capture of people in Africa, the slave trade in the United States and the work of abolitionists in Vermont to help formerly enslaved people.
For decades, students had objected to the murals, which they said portrayed Black people in cartoonish ways and brought to mind racist iconography of the past. By the summer of 2020, during a period of national Black Lives Matter protests, the opposition gained enough momentum that the administration hid the artwork behind the acoustic panels.