The debate over what to do about controversial public art is not new. But a recent dispute over a pair of murals at Vermont Law School deemed racially offensive adds a legal twist.
In 1993, Vermont Law School commissioned white artist Sam Kerson to create the above murals, which were intended to condemn the violence of slavery and commemorate Vermont’s role in the Underground Railroad. The two eight by twenty-four foot paintings, titled “Vermont, the Underground Railroad” and “Vermont, the Fugitive Slave,” were painted directly onto the wall of the school’s community center. But many Black students found the works offensive in their portrayal of Black people, describing the figures as animalistic and reminiscent of racist caricatures. When Vermont Law School decided to cover the murals following the murder of George Floyd in 2020, Kerson raised familiar arguments about preserving history. But he also objected on legal grounds, arguing that covering the murals violated his rights under the Visual Artists Rights Act of 1990, a federal copyright law that affords visual artists some protections over their work.
The Visual Artists Rights Act, or VARA, grants creators of certain visual artworks two kinds of rights: the right of attribution and the right of integrity. The right of attribution allows artists to claim authorship of works they created and avoid attribution of works they did not create or which have been modified in a way that harms their reputation. The right of integrity, which is at issue in this case, allows an artist to “prevent any intentional distortion, mutilation, or other modification…which would be prejudicial to his or her honor or reputation.” For works of “recognized stature,” this right of integrity is broadened to include preventing the work’s destruction. Kerson argued that concealing the murals amounted to a modification or even a destruction of his work that was damaging to his reputation. Both the Vermont District Court and the Second Circuit disagreed.
In its August 18, 2023 ruling, the Second Circuit held that “merely ensconcing a work of art behind a barrier neither modifies nor destroys the work, as contemplated by VARA, and thus does not implicate VARA’s protections.” The Court found that “[m]odification, as conventionally understood, does not include concealing a work of art behind a solid barrier, assuming the work remains intact while hidden from view.” The opinion compares covering a work with moving it into storage, which artists do not have a right to prevent. The Court was also not convinced by Kerson’s argument that permanently covering a work amounts effectively to its destruction, as this reading of the statute “does not comport with any conventional understanding of the word ‘destruction.’”
While resolving the case purely by “hewing to the statutory text,” the Court acknowledges that the case “presents weighty concerns that pin an artist’s moral right to maintain the integrity of an artwork against a private entity’s control over the art in its possession.” The statute’s “public presentation exception” makes clear that a work’s owner has the right to decide how the work is displayed, such as lighting and placement, and it seems uncontroversial that entities like museums can decide which works to display and which to rotate out or keep in storage. But it’s unclear how far this private right of control extends. The Court’s opinion suggests the possibility that any nonphysical changes are not covered by VARA, but declines to state a bright line rule.
This balance becomes even more difficult where, as here, the artwork at issue cannot be removed. An amicus brief filed by the Vermont ACLU argued that interpreting VARA as Kerson advocates would compel the school to continue to display the mural and “convey a message [it] does not wish to convey,” amounting to forced speech in violation of the First Amendment. Thus, the ACLU argues, the constitutional avoidance canon requires that the Court not so construe the statute. The Court declined to employ this canon, given that it viewed the statute’s meaning as plainly not including covering a work. But the ACLU’s argument is a provocative one, suggesting that the work expresses a definable “message” and also that this message can shift over time based on public attitudes. After all, the physical nature of the work itself never changed over thirty years, only the majority opinion about what it conveyed. And the artist himself intended the work to express an adamantly anti-racist message.
For now, the work remains intact, behind padded acoustic panels two inches from its surface. Although they are not literally modified, looking at the below photograph of the covered version, it seems clear that placing a barrier over a painting is not quite analogous to taking a work off display and moving it into storage, as the Court suggests. The covered version is its own statement, a kind of new work, a ghostly presence that sends an expressive message of its own.
