What happens if an institution decides to obscure a work of art on the ground that that it is offensive and unworthy of continued display? This question currently is being briefed in the United States Court of Appeals in a case involving murals at  Vermont Law School.  And the decision could have broad implications for future efforts to destroy or remove works of art.

In a nutshell, in 1993 an artist named Samuel Kerson painted two large murals on the walls of a Vermont Law School building.   The works are described as depicting the evils of slavery and the efforts of abolitionists and Vermonters in helping enslaved persons seeking to escape.  One panel of the mural depicts the violent capture of people in Africa, their forced sale at auction and the brutality of slave labor.  The other panel depicts abolitionists and the role of Vermonters in sheltering escaped enslaved people and helping them get to Canada.  

For the past 20 years, some students at Vermont Law School have been complaining about the murals, including stating that the depiction of enslaved persons were "cartoonish, almost animalistic." Following the killing of George Floyd in 2020, students submitted a petition calling for removal of the murals and an Associate Dean/Law Professor approached the Law School's President, who decided that the murals should be removed.  Apparently, there was some debate over this conclusion, with some students objecting to the removal of the mural.

After concluding that the murals could not be removed without destroying them, the law school decided to cover the murals with panels that would permanently obscure the murals from view purportedly without harming them.  Kerson then brought a suit under the Visual Artists Rights Act (commonly known as VARA), which is codified as Section 106A of the Copyright Act. 

VARA, which applies to works created after 1990 (and to some older works where title remains with the creator), gives the author of a work of visual art the right to  "prevent any intentional distortion, mutilation, or other modification" of that work which would be prejudicial to his or her honor or reputation" and to "prevent any destruction of a work of recognized stature."  There are limitations to this right, including that it does not apply to "modifications that occur as the result of the passage of time or the inherent nature of the materials" or if the modification is the result of conservation or lighting or placement of the work.  

This brings us to the issues raised in this lawsuit.  The plaintiff-artist argues that the concealment of his art constitutes a distortion, mutilation or modification of his work in violation of the protections of VARA. The defendant, parsing through the meaning of terms such as "modification" both in the common language and in the context of the statute, concluded that the concealment was neither a modification nor a destruction of the author's work.  The District Court granted the Vermont Law School summary judgment dismissing Kerson's VARA claims. The decision in Kerson v. Vermont Law School, Inc. can be found here.

Kerson has appealed and the case in the midst of being briefed to the United States Court of Appeals for the Second Circuit.  So far, only Kerson has filed a brief, which can be found here. The case is likely to be argued later this year with a decision sometime in later 2022 or early 2023.

The case raises some very interesting questions that are likely to come up in the future, especially if later generations become unhappy about art or monuments or statues depicting past political, military, sports (think Joe Paterno) or other figures. 

One practice pointer:  The statute permits artists to waive some or all of their rights under VARA, and purchasers of publicly viewable works of art would be well advised to obtain protection for "when the winds of changes shift."