In this post from March 2022, I wrote about a case pending in the the Second Circuit that raised the question whether an institution's decision to obscure murals that many considered offensive infringed the rights of the artist who created the murals under the Visual Artists Rights Act ("VARA").  Last week, the Second Circuit affirmed the District Court's grant of summary judgment dismissing the artist's claim in a decision that can be seen here

The facts of the case are as follows:  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.  The statute can be viewed here.

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."   The statute was designed to afford to artists a kind of  "Moral Right" such as are more broadly recognized in certain other countries.  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 District Court, 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.  After discovery, the District Court granted summary judgment to Vermont Law School.  Kerson appealed, and in a August 2023 decision, the Second Circuit affirmed dismissal of Kerson's claim.

The Second Circuit, after a careful examination of the facts of the case and the relevant statutory provisions, concluded that hiding the murals behind fabric-cushioned acoustic suspended approximately two inches in front of the panels neither destroyed or modified Kerson's original art.  It concluded that the plain meaning of the word "destroy" defeats Kerson's contention that the installation of the panels concealing the murals constitutes the destruction of the now obscured artwork.  

 The Court then went on to reject Kerson's contention that Vermont Law School "modified" his work in a way which would be prejudicial to his honor and reputation.   It looked at the dictionary definition of the word "modify" as well as its use in the context of the statute and concluded that the term probably required some physical change to the work.  And even if some non-physical event possibly could be considered a modification, concealing the work does not so qualify.  Indeed the statute provides that a  "modification of a work of visual art which is the result of conservation, or of the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification  . . . unless the modification is caused by gross negligence.  

The Court noted that in one of the few other cases to consider analogous issues,  the First Circuit, in Massachusetts Museum of Contemporary Art Foundation, Inc. v. Büchel, 593 F.3d at 38, 61–62 (1st Cir. 2010) held that partially covering an unfinished art installation with tarpaulins did not constitute an intentional act of distortion or modification. 

Finally, the Second Circuit rejected Kerson's suggestion that even if the installation of the panels did not immediately result in a modification of his work, that the panels themselves might expose the murals to toxic environmental conditions that would be damage or destroy the art.  The Court ruled that speculation that the panels might cause damage was not sufficient to create a claim under VARA.

A couple of final points:  First, purchasers of works of art intended for public display should be careful to avoid problems down the road.  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 include such a waiver and/or other contractual provisions that would avoid the problems faced by Vermont Law School.

Also, while the Second Circuit did not need to reach the issue, there could be an argument that using VARA to force the continued display of works that could be considered offensive constitutes the kind of "forced speech" that would run afoul of the First Amendment.