Vermont Law School may cover up controversial artwork under Visual Artists Rights Act

The Court of Appeals holds that a law school in Vermont cannot be sued by a visual artist whose controversial mural was covered up to avoid public viewing. This case involves the interpretation of a little-known federal statute intended to protect public artistic endeavors.

The case is Kerson v. Vermont Law School, issued on August 18. Plaintiff is a well-known artist who was commissioned by the school in 1993 to paint a mural commemorating Vermont's role in the Underground Railroad, "depicting scenes from the United States' sordid history with slavery and Vermont's participation in the abolitionist movement." The mural looks like this. Here is another link. If you scroll down at this link, you'll see what the wall looks like now.

The problem is that since around 2001, people began to complain that the panels, measuring eight by 24 feet in size, "depict[ed] enslaved African people 'in a cartoonish, almost animalistic style,' with 'large lips, startled eyes, big hips and muscles eerily similar to ‘Sambos’ or other racist . . . caricatures.' Beyond these stereotypical representations, some also took issue with the Murals’ depiction of 'white colonizers as green, which disassociates the white bodies from the actual atrocities that occurred.'” The law school did not remove the murals but instead covered them up with acoustic panels. So the murals are still there but nobody can see them.

Kerson sued under the Visual Artists Rights Act of 1990, which prohibits property owners from intentional distortion, mutilation or other modifications of their visual work that would prejudice the artists' honor or reputation. This law only protects works of "recognized statute" from destruction. Does Kerson have a case? After all, short of removing the mural from the wall completely, nothing would affect the artwork like covering it up with large acoustic panels.

The Court of Appeals (Livingston, Cabaranes and Kovner [D.J.]) carefully analyzes the statute and finds that the law school did not violate the law. I suppose what the law school did violates the spirit of the law, but statutory construction does not always care about the spirit of the law. There is no distortion, mutilation, or modification here. Plaintiff said the law school did modify the murals by making them impossible for anyone to view them. At oral argument, Kerson's lawyer said the act of covering up the mural modifies the mural. But "modification" means "an incremental change to the object at issue," not concealment. As for "destruction," there is no damage to the murals here, and the mural itself is not ruined. The result is that I guess the mural will remain covered up for the rest of eternity and the law school cannot be held liable under the VARA so long as nobody paints over it or removes the wall depicting the mural.