Can Vermont Law School Cover Its ‘Racist’ Mural? Second Circuit Says Yes.

// Vermont Law School has been knee deep in legal controversy over a mural for almost two years now. Legally speaking, there was a simple question: does the Visual Artists Rights Act prevent covering up an artist’s work? The messy bit comes from the intent and reception of the artwork. Sam Kerson created a mural that celebrated Vermont’s participation in the Underground Railroad.  Unfortunately for him, several students and faculty members of Vermont Law didn’t think that the intent of the mural made up for an art style that they claim, among other things, depicted Black people as Sambos. The Second Circuit has issued a ruling, and it ain’t in Kerson’s favor. From the ABA Journal:

Murals that are deemed to be “offensive” can be covered up, despite an artist’s objections that such actions violate their rights, according to a ruling by the 2nd U.S. Circuit Court of Appeals at New York.

googletag.cmd.push( function() { // Display ad. googletag.display( "div-id-for-top-300x250" ); });

For the curious, said rights include the right to prevent distortions, mutilations, or modifications of an artwork that may impact the artist’s honor or reputation. Carrying on…

Sponsored LawPay Pro Offers Upgraded Time And Billing Essentials AffiniPay’s latest product for the legal community, introduced earlier this year, presents a simple web-based solution for attorneys seeking seamless firm cash flow. From Above the Law  

In an Aug. 18 opinion, the federal appeals court held that “merely ensconcing a work of art behind a barrier neither modifies nor destroys the work, as contemplated by [the Visual Artists Rights Act].”
…
“Authors of qualifying works of visual art may invoke VARA to prevent the modification and destruction of their art, albeit with some exceptions. But hiding the murals behind a barrier neither modifies nor destroys them and, therefore, does not violate VARA,” the 2nd Circuit said, in affirming the lower court.

And with that, it looks like the abolitionist mural will be locked behind a covering.

googletag.cmd.push( function() { // Display ad. googletag.display( "div-id-for-middle-300x250" ); }); googletag.cmd.push( function() { // Display ad. googletag.display( "div-id-for-storycontent-440x100" ); }); googletag.cmd.push( function() { // Display ad. googletag.display( "div-id-for-in-story-youtube-1x1" ); });

Personally, I don’t think that the mural is offensive. Sure, there are some distortions and less-than realistic skin coloration, but you should consider the style of art that the piece was done in when you’re making your aesthetic assessments. It would be easy for someone to look at The Sugar Shack and complain that the Black figures are hypersexualized, lanky, and have spines that would even make comic artists wince at the abuses of physiology, but they’d also be missing the point. Ernie Barnes’s painting is jazz incarnate — he was going for vibrancy and affect, not realism. Far from subtracting from the message, the spiny figures and exaggerated gestures capture the rapture of people letting loose in a North Carolina dance hall precisely because of the departure from a strict commitment to realistic figures. Looking at Kerson’s mural and factoring in its abolitionist bent, I’m inclined to forgive that the slave owners that are being put to death have sickly green skin.

I’m also quick to realize that I have no real skin in the game! Unlike the faculty and students of Vermont Law, I do not have to spend my days walking to and from class with the damned thing in my line of vision. Whether it’s a statue of Columbus or a school changing its name after discovering its namesake may have dabbled in hunting Natives for sport, the decisions, who makes them, and how they are implemented should center the people who are directly involved with the art and related history at hand.

Sponsored Sponsored NetDocuments’ Rebecca Sattin On Customer-First Approach And Future-Proofing Your Firm How a customer-focused transition from Worldox to NetDocuments sets the stage for a future of successful tech advancement. From Ethan Beberness   Sponsored LawPay Pro Offers Upgraded Time And Billing Essentials AffiniPay’s latest product for the legal community, introduced earlier this year, presents a simple web-based solution for attorneys seeking seamless firm cash flow. From Above the Law   Sponsored Documenting Secured Transactions: A New Guide For Practitioners A newly updated PLI treatise provides both the legal framework and practical guidance on documenting secured transactions, including important details about 2022 amendments to the UCC. From Practising Law Institute   Sponsored Survey Results: A Perspective On The Private Markets Ontra surveyed over 400 private markets professionals about what to expect this year and their legal process pain points. From Kerry G. Benn, Ontra  

So, before this gets blown up as some generalized conflict about campus free speech and wokeness gone rampant, I’d like the commend the students and faculty at Vermont Law that put the work in to change the community for their perceived better. And, if the tides change and people begin to think differently about the mural, they could always take the covers down!

…They may also ultimately be forced to. Kerson’s attorney, Steve Hyman, doesn’t seem very happy with the Second Circuit’s decision. From Law and Crime:

“The very purpose of VARA was to preserve, protect art and to prevent changes to the art that would prejudice the honor and integrity of the artist,” Hyman said. “Permanently entombing murals over 8′ x 24′ that cannot be moved and can never be seen again is contrary to what Congress clearly intended in enacting the statute.”

Hyman said he was considering all options going forward.

googletag.cmd.push( function() { // Display ad. googletag.display( "div-id-for-bottom-300x250" ); });

As it stands, Kerson is that guy whose racist-ass mural at Vermont Law School got covered up — I get why he’d want to appeal this outcome. While few cases make it to the Supreme Court, I, for one, would love to see how the justices break on the issue of an artist’s honor and reputation with regard to their work. Especially Kagan and Sotomayor.

‘Offensive’ Murals Can Be Covered, Despite Federal Law Protecting Artists, 2nd Circuit Says [ABA Journal]
Muralist Who Depicted Enslaved People As ‘Cartoonish, Almost Animalistic’ Loses Lawsuit [Law And Crime]

Sponsored Sponsored Survey Results: A Perspective On The Private Markets Ontra surveyed over 400 private markets professionals about what to expect this year and their legal process pain points. From Kerry G. Benn, Ontra   Sponsored The Digital Transformation Imperative Private funds’ in-house and external legal teams are stretched thin by growing legal demands. Firms need digital transformation to thrive. From Troy Pospisil, Ontra CEO  

Earlier: Temporary Win For Vermont Law School’s Right To Veil
Hyperallergic Has Sneezing Fit Over Black Art

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at [email protected] and by tweet at @WritesForRent.

Topics

2nd Circuit, Courts, Law Schools, Sam Kerson, Vermont Law School, Visual Artists Rights Act (VARA)