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Vermont Law School wins in dispute with artist over mural students called racist

3 minute read

Burlington, Vermont, U.S. April 8, 2020. REUTERS/Caleb Kenna

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  • Artist said covering murals would violate law
  • Murals meant to commemorate Underground Railroad
  • Covering doesn't modify, destroy work under Visual Artists Rights Act

(Reuters) - A Vermont law school can permanently conceal two murals that depict Black people in a way that members of the law school community consider racist, despite the artist's objections that doing so would violate his rights under a rarely litigated law, a Vermont federal court has said.

U.S. District Judge Geoffrey Crawford ruled on Wednesday that Vermont Law School's plan to permanently cover the murals, which artist Sam Kerson painted to portray the evils of slavery and Vermonters' efforts to help those trying to escape through the Underground Railroad, doesn't violate his rights to prevent the modification, 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 South Royalton, Vermont, school in 1993. The school has received complaints about the murals' "cartoonish, almost animalistic" depictions of Black people, and it announced plans last year to build a wooden frame around them and hide them with acoustic panels.

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Kerson sued the school last December, saying that covering the murals would violate his rights under VARA. He also said permanently concealing his work would mark it as "offensive" and "unworthy to be viewed," and damage his reputation as an artist "committed to progressive causes."

Kerson's attorney Steven Hyman of McLaughlin & Stern said in a Thursday email that he was "disappointed" in the decision and will appeal.

Vermont Law School's attorney Justin Barnard of Dinse said in a Thursday email that the school was "very pleased" with the ruling.

"The School's mission is to educate law students in a diverse and inclusive community, and it became clear over recent years that the mural — which many feel depicts Black bodies in a caricatured, stereotyped manner — was inconsistent with that mission," Barnard said. "We believe the Court rightly decided that the law does not compel a private institution to keep such a work of art on display."

Kerson had argued that the school's plan risked damaging the murals because the covering could lead to mold, and that the concealment itself would either modify or destroy his work under the law.

Concealing the work wouldn't modify it, Crawford said in Wednesday's ruling, noting that VARA doesn't consider an art owner's decisions about displaying artwork to be modifications.

The covering also wouldn't destroy the work under VARA, and Crawford compared it instead to removing and storing a painting from a gallery.

Crawford also said the possibility of "harmful environmental conditions" from the panels doesn't violate VARA.

"Change to an artwork over time is not actionable under VARA even if better conservation measures could have prevented it," Crawford said.

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

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

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

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Blake Brittain reports on intellectual property law, including patents, trademarks, copyrights and trade secrets. Reach him at blake.brittain@thomsonreuters.com

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