Vermont Law School wins dispute with artist over mural students branded as racist

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Burlington, VT, USA, April 8, 2020. REUTERS / Caleb Kenna

The artist said covering the murals would violate the law

(Reuters) – A Vermont law school may permanently cover up two murals depicting black people in a way members of the law school community consider racist, despite the artist’s objections that it would violate its rights under a rarely contested law, a Vermont federal law court said.

U.S. District Judge Geoffrey Crawford on Wednesday ruled that Vermont Law School’s plan to permanently cover the murals, which artist Sam Kerson painted to represent the evils of slavery and the efforts of Vermonters to help those who attempt to escape by the Underground Railroad, does not violate his rights to prevent alteration, mutilation or destruction of his work under the Visual Artists Rights Act.

Kerson painted the work, titled “The Underground Railroad, Vermont and the Fugitive Slave,” at the school in South Royalton, Vermont, in 1993. The school has received complaints about the “cartoonish, almost animal” depictions of Blacks, and he announced plans last year to build a wooden frame around them and hide them with acoustic panels.

Kerson sued the school last December, claiming that covering up the murals would violate his rights under VARA. He also said that to permanently cover up his work would mark him as “offensive” and “unseen”, and damage his reputation as an artist “committed to progressive causes”.

Kerson’s attorney, Steven Hyman of McLaughlin & Stern, said in an email Thursday that he was “disappointed” with the ruling and would appeal.

Vermont Law School attorney Justin Barnard of Dinse said in an email Thursday that the school was “very happy” with the decision.

“The school’s mission is to educate law students in a diverse and inclusive community, and it has become clear over the past few years that the mural – which many say depicts black bodies in a cartoonish way and stereotypical – was incompatible with this mission, ”Barnard said. “We believe that the Court correctly decided that the law does not oblige a private institution to exhibit such a work of art.”

Kerson had argued that the school plan risked damaging the murals because the coating could lead to mold and the cover-up itself would alter or destroy his work under the law.

Hiding the work wouldn’t change it, Crawford said in Wednesday’s ruling, noting that VARA does not consider an art owner’s decisions about exhibiting artwork to be changes.

Coating wouldn’t destroy the work under VARA either, and Crawford instead compared it to removing and storing a painting from a gallery.

Crawford also said that the possibility of “harmful environmental conditions” from the panels does not violate VARA.

“Altering a work of art over time is not exploitable under VARA, even though better conservation measures could have prevented it,” Crawford said.

The case is Kerson v. Vermont Law School Inc, US District Court for the District of Vermont, No. 5: 20-cv-00202.

For Vermont Law School: Justin Barnard and Karen McAndrew de Dinse

For Kerson: Steven Hyman and Oliver Chernin of McLaughlin & Stern, Richard Rubin of Rubin Kidney Myer & Vincent

Blake brittain

Blake Brittain reports on intellectual property law, including patents, trademarks, copyrights and trade secrets. Contact him at [email protected]

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