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Federal Court Finds That Concealing Artwork Does Not Infringe On Artists’ Rights

December 3, 2021

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<p style="text-align: justify;">In 1993, artist Samuel Kerson painted two murals in the halls of Vermont Law School. The murals, titled “The Underground railroad, Vermont and the Fugitive Slave,” were intended to depict “the evils of slavery and the actions of abolitionists and activists in Vermont who aided slaves seeking freedom from the Underground Railroad.” Nevertheless, the law school received numerous complaints that the murals were racist and made law students uncomfortable. As a result, the law school announced plans to conceal the murals, which prompted a <a href="https://www.wcmlaw.com/wp-content/uploads/2021/12/lawsuit.pdf">lawsuit</a> by Kerson.</p>
<p style="text-align: justify;">Kerson alleged that covering the murals would violate his rights under the Visual Artists Rights Act (“VARA”), which vests artists with the right “to prevent any intentional distortion, mutilation, or other modification of the work, which would be prejudicial to his or her honor or reputation.” Kerson argued that permanently covering the murals “distorts, mutilates, or otherwise modifies” his work in violation of the act. In seeking to dismiss Kerson’s lawsuit, the law school argued that covering the murals does not violate VARA because the work would not be destroyed or modified, only removed from view. They further argued that the school should not be compelled to show art that it does not agree with.</p>
<p style="text-align: justify;">The U.S. District Court for the District of Vermont agreed with the law school, holding that covering the work does not violate Kerson’s rights under VARA. In interpreting the statute, the court held that the decision to cover the work does not amount to modification or destruction of the work. The court equated the proposed concealment with an art owner’s decision to not display artwork, which is permitted under VARA. The court stressed that the murals were merely being removed and stored in a different way, just as a work may be removed and stored by a gallery.</p>
<p style="text-align: justify;">Kerson plans to appeal the decision and the outcome of the case has potentially significant implications for artists, art galleries, private owners, and art insurers. Pending further guidance from the 2<sup>nd</sup> Circuit, the District Court’s decision impacts the VARA rights of artists and defines what owners are permitted to do with works of art.</p>
<p style="text-align: justify;">Thank you to Alexandra Deplas for her contribution to this post. Please contact <a href="mailto:agibbs@wcmlaw.com">Andrew Gibbs</a> with any questions.</p>

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