Paul L. Caron
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Saturday, August 19, 2023

2d Circuit: Despite Artist’s Objection, Law School Can Cover Murals Celebrating State’s Role In Underground Railroad And Abolitionist Movement In Response To Student Complaints Of ‘White Savior Complex’

Vermont Mural

Bloomberg Law, Law School Can Cover Underground Railroad Murals, 2nd Cir. Says:

Vermont Law School can permanently cover a pair of controversial 1994 murals depicting the Underground Railroad without violating an artists’ rights law, the Second Circuit ruled [Kerson v. Vermont Law School, No. 21-2904 (2d Cir. Aug. 18, 2023)].

Artist Samuel Kerson argued the school’s plans to hide his murals behind bolted-in acoustic sheetrock panels violated the Visual Artists Rights Act, which conditionally restrains parties from destroying or modifying works without artist permission. But the law doesn’t require the school to display the art in perpetuity, and permanently hiding it doesn’t run afoul of VARA, a three-judge panel of the US Court of Appeals for the Second Circuit said Friday.

Kerson painted the murals in 1994 to show the history of slavery and the state’s efforts to help slaves seek freedom. The school says that since at least 2001 students have complained about the murals, citing their depiction of slaves as cartoonish caricatures while promoting the “white savior complex.”

The Second Circuit concluded:

This case presents weighty concerns that pin an artist’s moral right to maintain the integrity of an artwork against a private entity’s control over the art in its possession. On the facts presented here, we resolve this tension by hewing to the statutory text, which reflects Congress’s conscientious balancing of the competing interests at stake. As we have previously explained, for the protections that VARA affords artists, the statute does “not mandate the preservation of art at all costs and without due regard for the rights of others.” Because mere concealment of the Murals neither “modifies” nor “destroys” them, the Law School has not violated any of VARA’s prohibitions. As such, VARA does not entitle Kerson to an order directing the Law School to take the barrier down and continue to display the Murals. That said, nothing in our decision today precludes the parties from identifying a way to extricate the Murals from the Chase Community Center so as to preserve them as objects of art in a manner agreeable to all.

Prior TaxProf Blog coverage: 

https://taxprof.typepad.com/taxprof_blog/2023/08/despite-artists-objection-law-school-can-cover-murals-celebrating-state-role-in-underground-railroad.html

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