Kerson v. Vermont Law School, Inc.
Not available in text (2023)
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Rule of Law:
Permanently concealing a work of visual art behind a solid barrier, without physically altering the work itself, does not constitute a 'modification' or 'destruction' under the Visual Artists Rights Act of 1990 (VARA). VARA protects the physical integrity of an artwork but does not grant an artist the right to compel its continued display.
Facts:
- In 1993, artist Samuel Kerson and Vermont Law School, Inc. (VLS) agreed that Kerson would paint two large murals directly onto the drywall of a campus community center.
- Kerson completed the murals, entitled 'The Underground Railroad, Vermont and the Fugitive Slave,' which consisted of two 8-by-24-foot panels.
- Over many years, starting as early as 2001, VLS received complaints from members of its community who found the murals' depiction of Black people to be offensive and stereotypical.
- In the summer of 2020, after receiving a petition signed by over 100 students, alumni, and faculty, VLS informed Kerson of its intent to cover the murals.
- Carpenters hired by Kerson determined that the murals could not be removed from the drywall they were painted on without being disfigured or destroyed.
- VLS ultimately decided to permanently conceal the murals by constructing a wall of fabric-cushioned acoustic panels in front of them, suspended approximately two inches from the murals' surface and not physically touching the artwork.
Procedural Posture:
- Samuel Kerson sued Vermont Law School, Inc. in the U.S. District Court for the District of Vermont, alleging violations of the Visual Artists Rights Act (VARA).
- Kerson filed a motion for a preliminary injunction to prevent the law school from covering his murals.
- The district court denied Kerson's motion for a preliminary injunction.
- The district court subsequently granted summary judgment in favor of Vermont Law School.
- Kerson, as appellant, appealed the grant of summary judgment to the U.S. Court of Appeals for the Second Circuit, with Vermont Law School as appellee.
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Issue:
Does permanently concealing a mural behind a wall of acoustic panels, without physically touching or altering the mural itself, constitute an intentional 'modification' or 'destruction' of the work in violation of the artist's rights under the Visual Artists Rights Act of 1990 (VARA)?
Opinions:
Majority - Chief Judge Livingston
No. Permanently concealing a work of art behind a barrier does not constitute a 'modification' or 'destruction' as those terms are used in VARA, and thus does not violate the artist's rights under the Act. The court's reasoning is that the plain meaning of 'modification' connotes a physical change or alteration to the work itself that affects how it is perceived, not merely hiding it from view. The statutory context, placing 'modification' alongside 'distortion' and 'mutilation,' supports this interpretation under the canon of ejusdem generis. Similarly, 'destruction' means to ruin, damage irreparably, or make nonexistent, none of which occurred, as the murals remain physically intact behind the barrier. The court also rejected the argument that potential future damage from the new environmental conditions constituted a violation, finding no evidence of VLS's intent to modify the work, and concluding that speculative future harm does not amount to present destruction.
Analysis:
This decision significantly clarifies the scope of an artist's 'right of integrity' under VARA, establishing that it does not include a right to compel the continued display of an artwork. It reinforces that VARA protects the physical work from alteration or destruction, not its visibility or public presentation. The ruling creates a strong precedent for property owners, allowing them to conceal controversial or unwanted art without violating VARA, as long as the work is not physically damaged in the process. This outcome balances the artist's moral rights with the property owner's rights to control their space and the expression within it.
