Kerson v. Vermont Law School, Inc. (2023 WL 5313521, 2d Cir. August 18, 2023)

Artist Samuel Kerson painted two large murals directly onto the walls inside a building on the campus of Vermont Law School. Kerson intended the works to depict the United States’ sordid history with slavery and Vermont’s participation in the abolitionist movement. Community members, however, perceived the works as depicting enslaved African people in an offensive, stereotypical style. Beyond that, some also took issue with the works’ depiction of white colonizers as green, dissociating the white bodies from the actual atrocities that occurred.

Vermont Law School wanted the murals gone. Being a law school, though – there were plenty of experts around to advise that merely painting over the murals would violate Kerson’s rights under the Visual Artists Rights Act of 1990 (“VARA,” codified principally at 17 U.S.C. 106A but also in other provisions of 17 U.S.C.). So the school concealed the murals behind a barrier of fabric-cushioned acoustic panels suspended two inches away from the surface of the murals. In other words: the barriers did not touch the works.

Kerson sued under VARA, alleging that concealing his works was both “destruction” and “intentional distortion, mutilation, or other modification” – both of which VARA enjoins in connection with qualifying works of visual art. (And the murals were qualifying works of visual art). In Kerson’s view, permanently concealing an immovable work not only modifies it but, for all intents and purposes, destroys it. The District Court disagreed, and Kerson appealed.

The Second Circuit also disagreed. Relying principally on dictionary definitions, the Second Circuit held that shielding Kerson’s works from view was neither destruction nor distortion nor mutilation, because the acoustic panels did not touch the works. Nor was the barrier a modification, noting that “modification” connotes a change to a work of visual art that somehow adulterates the viewing experience, presupposing that at least some portion of the work remains visible.

That last part could be new ground in VARA jurisprudence. The Second Circuit referenced Mass. Museum of Contemp. Art Found., Inc. v. Büchel, 593 F.3d 38 (1st Cir. 2010), in which a VARA claim failed even though the work in question had been only partially covered. Time will tell, whether the Second Circuit’s decision would have steered the Büchel case in a different direction.

This case will certainly be an anchoring addition to the law. (I laugh at many articles about VARA cases, because invariably they point out that, “VARA jurisprudence is relatively rare.” That was true in, like, 1995. But now there’s plenty, so authors, you can probably stop saying that now!)

What this case really underscores, though, is  the importance of careful drafting in public art commissioning agreements. Commissioning parties often present artists with a take-it-or-leave-it ultimatum: waive your VARA rights or forget about getting this job. That’s legally permissible, but unconscionably contrary to VARA’s intent. VARA is meant to be a balance between the artist’s moral rights and the owner’s control over the tangible art in its possession.

The equitable way to honor VARA’s intent is for both sides of the agreement to invest in fair and careful drafting. It’s not difficult to anticipate potential circumstances under which an owner may wish to change out its art. So don’t strip artists of the rights VARA was enacted to confer. Ask both sides, instead: what works for you, when those circumstances arise?

Drafting a fair agreement isn’t all that difficult. The obstacles are bureaucracy, arrogance, haste, lack of awareness, and inaccurate perceptions about legal fees.

Tall order, but let’s overcome them all.