Judge: Vermont Law School can cover controversial murals

A panel from a mural by Sam Kerson that had been displayed at Vermont Law School in South Royalton. Courtesy photo/Sam Kerson

Editor’s Note: This story by Alex Hanson first appeared in the Valley News on Oct. 23.

A federal judge has granted Vermont Law School’s request to dismiss a lawsuit brought by an artist whose murals the law school wants to hide behind a wall.

But lawyers for artist Sam Kerson said he will appeal this week’s ruling by U.S. District Court Judge Geoffrey Crawford to the 2nd Circuit Court of Appeals in New York City.

In his ruling, issued Wednesday, Crawford determined that the law school’s plan to hide Kerson’s murals behind a wall of acoustic tiles doesn’t violate the federal Visual Artists Rights Act. They are currently covered by dropcloths.

Once the wall is in place, Crawford wrote, “The murals will have the same status as a portrait or bust that is removed from public exhibition and placed in storage.”

Kerson and several assistants painted the two 8-by-24-foot murals, which depict the horrors of slavery and slaves escaping to Vermont via the Underground Railroad, in 1993 on an interior wall of the law school’s Chase Community Center in South Royalton.

“Since at least 2001,” Crawford noted in his ruling, “VLS has received complaints from students expressing their discomfort with the murals,” in particular their “ ‘cartoonish, almost animalistic’ depictions of enslaved African people.”

Law school officials proposed last year to paint over the murals, but Kerson objected. He filed suit in December 2020 to prevent the murals from being covered. Any attempt to remove the murals from view constitutes a “modification” of the art under the federal law, known as VARA.

The law school argued that covering the murals doesn’t violate VARA because the murals won’t be modified or destroyed, only removed from view. Also, no one can be compelled to show art that they don’t agree with, the law school’s lawyers argued.

“I think the court got it exactly right and we’re pleased that the court agrees with us that the VARA doesn’t compel an owner to display a work of art against its wishes,” Justin Barnard, a Burlington-based attorney representing the law school, said Friday.

While Barnard said he wasn’t surprised that Kerson has said he would appeal, he called Crawford’s reasoning “sound,” and said the lower court ruling is likely to stand.

In a statement, Kerson’s lawyers, Steven Hyman of New York and Richard Rubin of Barre, asserted that Crawford ignored the clear intent of VARA, which is “to preserve our cultural history and protect the honor and reputation of the artists who contribute so much to that history.”

In this view, VARA encompasses more than the cut-and-dried circumstances under which the murals can be hidden, but the question of what is lost when public art is removed from view. VARA takes into account the moral rights of an artist not to have their reputation or honor diminished by the treatment of their work.

“The Law School’s unyielding intent to entomb these murals — acknowledged to be of recognized stature — behind a wall so that they can never be viewed again is clearly both an affront to Mr. Kerson’s honor and reputation, and to the values intended to be preserved by the Visual Artists Rights Act,” Kerson’s lawyers said in their statement.

An appeal would bring the mural dispute to the scene of a VARA case that Hyman, a former president of the New York chapter of the American Civil Liberties Union, argued a few years ago. He represented Arturo Di Modica, who created the Charging Bull sculpture in lower Manhattan that’s become a symbol of Wall Street confidence. After Fearless Girl, a bronze statue of a young girl, was installed facing the bull, Di Modica filed suit, charging that his copyright and his rights under VARA had been infringed, as the statue of the girl had changed the meaning of his work. Fearless Girl was moved in 2018, resolving the dispute.

Kerson forwarded the statement from his lawyers and declined further comment on Friday.

Efforts to reach Jameson Davis and April Urbanowski, VLS students who circulated a letter and petition opposing the murals, were unsuccessful on Friday.

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