Paul L. Caron

Friday, December 4, 2020

Artist Sues To Prevent Vermont Law School From Painting Over Underground Railroad Murals That Black Students Call Racist


Following up on my previous posts:  

Law360, Artist Sues Law School To Save Underground Railroad Murals:

A law school in Vermont won't be able to take down two allegedly offensive murals depicting the slaves in Underground Railroad without a legal fight, according to a lawsuit a painter lodged in federal court this week.

Samuel Kerson filed a Visual Artists Rights Act suit Wednesday against the nonprofit that runs the Vermont Law School because the school's Board of Trustees decided in July to paint over two murals following complaints from students that the work and the school's choice to endorse it propagated negative stereotypes about Black bodies. It gave Kerson 90 days to take the murals down from a community center at the school's campus.

Kerson refused, saying the murals would be destroyed if taken down because they are painted on sheet rock that is affixed to the building. Steven Hyman, a partner at McLaughlin & Stern LLP who is part of the team representing Kerson, told Law360 on Thursday that the murals remain up at the school, where its campus is currently closed amid the COVID-19 pandemic.

"The board is supportive of and sympathetic to the many students, faculty and staff, and other members of the VLS community who find the mural offensive because of how it caricatures enslaved Africans specifically and casually stereotypes Black bodies in general," Glenn J. Berger, chair of the school's Board of Trustees, told Law360 in a statement on Thursday.

But Kerson says that the school is violating his rights under the Visual Artists Rights Act, a little-used federal statute from 1990 that protects art works of "recognized stature" from destruction or mutilation. In recent years, it has been leveled against border wall contractors who tore down a conceptual artist's "Cheese Wall" sculpture and a country rap performer who allegedly shot up two of an artist's paintings with guns.

Legal Ed News, Legal Education | Permalink


This case seems to rest upon if the murals "can be removed from the building without the destruction, distortion, mutilation, or other modification of the work" (17 USC 113(d)(2)). If it can be remove than the artist needs to remove it (or pay for it to be removed), if not than the school needs to wait until the artist dies (unless they have an agreement that the murals may be removed). Another issue may be if the artist agreed to the installation before the effective date of the 1990 Act (unlikely as the murals were installed in 1993, but perhaps there was a long lead time).
Trying to tie this into Executive Order 13864 is a stretch. The piece is owned by the school and is displayed on their building. If anything preventing them from removing it is a restriction of the school's freedom of speech. Additionally, the school has previously risked its federal funding over issues (the Solomon Amendment) so is unlikely to be intimidated by such a tactic.

Posted by: James Duffy | Dec 5, 2020 11:57:16 AM

A left-of-center artist vs. the left's new cultural mandarin mob. Would anyone like to place bets on who will come out on top? Does it even matter, at this point?

Posted by: MM Classic | Dec 4, 2020 6:00:47 PM

Here the artist - or any faculty or students concerned about freedom of speech and/or opposed to political correctness - might also wish to file a formal complaint under President Donald Trump’s Executive Oder 13864.

Section 2(a) of the order requires “compliance with the First Amendment for public institutions and compliance with stated institutional policies regarding freedom of speech for private institutions.”

Violators risk a federal investigation, and possible loss of federal funding.

Such a formal complaint could help pressure the school not to yield to political correctness complaints regarding the mural which apparently was created to honor the Underground Railroad and those involved with it.

Posted by: LawProf John Banzhaf | Dec 4, 2020 2:18:21 PM