Case Review: Kerson v. Vermont Law School, Inc.

June 21, 2024

By Joseph Scapellato

“I don’t feel like I’m responsible for people that have reactions to it . . .”

~ Artist Samuel Kerson, speaking to “Seven Days Vermont”

American property law is commonly analogized to a bundle of sticks, where ownership of property confers various privileges upon the owner.^[1] If a person owns a television, for instance, that person has the exclusive right to use it, sell it, lease it, modify it, mutilate it, or––in accordance with local ordinances––destroy it. This principle is not true, however, for works of visual art. The Visual Artists Rights Act of 1990 (“VARA”) grants visual artists the lifetime right to prevent any person from distorting, mutilating, or otherwise modifying a work of visual art when such an alteration would harm that artist’s reputation.^[2] Additionally, for works of “recognized stature,” the visual artist retains the lifetime right to prevent any person from destroying that work.^[3] Importantly, these rights persist even after the physical work of art is sold to another person. For commissioners of large and immobile works of visual art––such as businesses, schools, and governmental bodies––VARA can present property owners with challenges if the work eventually falls into disfavor.

Such was the case in Kerson v. Vermont Law School, where the Second Circuit held that Vermont Law School’s (“VLS”) permanent concealment of two large murals depicting the horrors of American slavery did not amount to an impermissible modification under VARA.^[4] Because the offending murals could not be removed from the drywall of a VLS classroom without being damaged––and risking liability under VARA––the school opted to conceal them instead.^[5] As such, VLS may conceal the murals, but it must also ensure their proper preservation. The Second Circuit’s holding presents difficulties for both visual artists and institutions, where large works may be viewed as a liability for commissioners rather than an asset for public spaces.

Factual Background to Kerson and the District Court’s Opinion

In 1993––just three years after Congress enacted VARA––VLS commissioned artist Samuel Kerson to create two murals depicting Vermont citizens’ role supporting the Underground Railroad.^[6] Kerson painted the murals directly onto the sheetrock walls of a building on VLS’s campus.^[7] In lurid primary colors, the murals, done in a style similar to José Clemente Orozco,^[8] depicted the horrors of American slavery alongside Vermonters’ efforts liberating enslaved people.^[9] In the decades after their completion, students objected to the white artist’s depiction of enslaved people, contending that the depictions were caricaturish and disrespectful to people of color.^[10] For years, longtime VLS administrator Shirley Jefferson refused to remove the murals, stating that the students should refocus on their studies.^[11]

After the wake of the George Floyd protests in 2020, the school finally decided to remove the murals, but there was a problem.^[12] The murals could not be removed from the sheetrock wall without being destroyed, so VLS opted to conceal them instead.^[13] To this end, the school affixed rubber-cushioned acoustic panels in front of the murals that concealed them without touching the murals.^[14] Objecting to his murals’ concealment, Kerson brought a cause of action under VARA seeking a preliminary injunction for the removal of the coverings. He argued that the concealment of the murals resulted in both an impermissible modification and destruction of his works, but the United States District Court for the District of Vermont disagreed.^[15] Denying the injunction, the district court held that under VARA, the modification or destruction of a work of visual art requires a physical alteration to the work itself.^[16] After the district court’s preliminary ruling, it granted VLS’s motion for summary judgment, which Kerson appealed.^[17]

The Second Circuit’s Decision Affirming a Textualist Application of VARA

1. The Concealment of the Murals Was Not a Destruction.––Affirming the district court’s decision, Chief Judge Debra Ann Livingston, writing for a three-judge panel on the Second Circuit Court of Appeals, held that the permanent concealment of the murals behind acoustic panels did not violate VARA.^[18] First, the court dismissed Kerson’s argument that the concealment resulted in a “destr[uction]” of his works of recognized stature.^[19] The term “destroy,” the court reasoned, is an unambiguous term, meaning to “damage (something) so thoroughly as to make unusable, unrepairable, or nonexistent; to ruin.”^[20] While the concealment of the works did render them aesthetically obsolete to potential viewers, the court held that it did not “destroy” them under this limited interpretation of destruction under VARA.^[21]

2. The Concealment of the Murals Was Not a Modification.––Further, the court held that the concealment of the murals behind acoustic panels did not constitute an impermissible “modif[ication]” under VARA.^[22] Kerson argued for a more capacious meaning of the term “modify,” which included any alteration on or around a work of art that harmed the artist’s reputation––a key phrase under VARA.^[23] The Second Circuit disagreed; the plain meaning of the word “modify” was to make a minor change to an object itself.^[24] Applied to works of art, this meaning only encompasses alterations that change the underlying composition of the work, such as “an additional brush stroke, erasure of content, or reorganization of a movable component.”^[25] Citing the interpretive doctrine of ejusdem generis––which limits the meaning of a generalized term in a list by those which precede it^[26]––the Second Circuit held that the term “modify” must be cabined to meanings similar to “distort” or “mutilate.”^[27]

The Second Circuit also analyzed language in other subsections of VARA to support this meaning of “modify.” Under section 106A(c)(2), the statute explicitly states that modifications to a work of visual art resulting from the “public presentation, including lighting and placement,” do not constitute impermissible modifications unless caused by gross negligence.^[28] Mere placement behind wall coverings, then, should not constitute the type of modification proscribed by VARA. While the statute does prohibit “grossly negligent” modifications resulting from the public presentation, the court held that VLS’s non-touching concealment, in itself, did not rise to this level.^[29]

In addition to the analysis of VARA’s statutory language, the Second Circuit examined another VARA case to support its limited reading of the term “modify.” In Massachusetts Museum of Contemporary Art Foundation, Inc. v. Buchel, the First Circuit held that the total concealment of a work of art does not constitute a modification under VARA.^[30] There, the Massachusetts Museum of Contemporary Art (“Mass. MoCA”) commissioned artist Christoph Büchel to create a football field-sized, site-specific installation in the museum called Training Ground for Democracy.^[31] The installation included buses, cars, and other urban fixtures, but it quickly became too costly for Mass. MoCA to support.^[32] Without Büchel’s consent, the museum temporarily covered the installation, and after negotiations soured, the project remained unfinished, where the museum continued work on the project.^[33] The First Circuit ruled that the museum’s continued work on the installation could constitute a modification under VARA, but the covering of the work under tarps was not a distortion nor a modification.^[34] In dicta, the Second Circuit echoed the First Circuit’s interpretation of “modif[ication]”; however, it did note that the partial covering of a work of art––like that which happened to Büchel’s work––may actually present a genuine modification issue under VARA.^[35]

3. The Concealment of the Murals Would Not Subject Them to Degenerative Conditions Causing a Future Actionable Modification.––Finally, Kerson contended that the permanent concealment of his murals might subject them to degenerative conditions that would eventually cause an impermissible distortion, mutilation, or modification of his work under VARA, but the Second Circuit disagreed.^[36] While the expert who testified for Kerson stated that it was possible that the murals’ condition could deteriorate underneath the panels, the court held that VARA permitted this type of deterioration.^[37] VARA states that a modification “which is a result of the passage of time or the inherent nature of the materials” is not an redressable modification.^[38] Any threat to the murals caused by the mere “ambient” conditions behind the panels during Kerson’s lifetime was too indistinct to create an actionable future threat.^[39]

Implications of Kerson and Final Thoughts

The Second Circuit’s Kerson decision adheres closely to VARA’s text, but it is blinkered to the concerns of visual artists and property owners. The opinion closely examines the plain meaning of VARA’s text, limits that meaning based on well-established principles of statutory construction, and leaves both sides with undesirable outcomes when a work of public art falls into disrepute. In the future, artists may have their works of visual art conspicuously concealed, which harms their reputation, but property owners would have to properly conceal and preserve them, which incurs additional costs. Even for works of art that may be permissibly destroyed, property owners might not be able to renovate their buildings without first risking litigation. One ongoing example involves a VARA dispute between a muralist and a property owner in Pittsburgh. The muralist filed suit to halt structurally necessary renovations to the wall of the property owner’s building, arguing that the renovations would destroy his work of “recognized stature.”^[40]

The commission of large scale, public art projects is beneficial to visual artists, local institutions, and the public writ large. However, Kerson‘s outcome may dissuade future public art commissions due to the works’ potential liability. For property owners, why commission a large, site-specific sculpture that could expose them to litigation when they could opt for something smaller, more portable, and less risky? And for visual artists, why create something bold or provocative when it could later be covered by a tarp, an acoustic panel, or a box? Any solution to these competing interests will require congressional action that takes into account the interests of both artists and community stakeholders toward a thriving public arts future.

About the Author:

Joseph Scapellato is a Summer 2024 Legal Intern at Center for Art Law. He is currently a rising 3L at the University of Pittsburgh School of Law, where he serves as the Executive Editor of the Pitt Law Review and the Secretary of the Student Bar Association. Joseph hopes to combine his interests in art history and the law to work as an intellectual property attorney. He can be contacted for questions or comments at jgs52@pitt.edu.

Sources:

1. See, e.g., Lior J. Strahilevitz, The Right to Destroy, 114 Yale L.J. 783, 794 (2005) (“The right to destroy property is, after all, often an extreme exercise of some of the more widely recognized sticks in the bundle of rights. The right to destroy is an extreme version of the right to exclude; by destroying a vase, I permanently exclude third parties from using it.”); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 433 (1982) (displaying the Supreme Court’s endorsement of the “bundle of sticks” metaphor for analogizing property rights). ↑
2. 17 U.S.C. § 106A(a)(3)(A), (b). ↑
3. Id. § 106A(a)(3)(B)–(b). ↑
4. Kerson v. Vt. L. Sch., Inc., 79 F.4th 257, 259–60 (2d Cir. 2023). ↑
5. Id. at 261. ↑
6. Kerson v. Vt. L. Sch., Inc., No. 5:20-cv-202, 2021 U.S. Dist. LEXIS 176903, at *2–3 (D. Vt. Mar. 10, 2021). ↑
7. Id. at *2. ↑
8. Id.; For a compendium of José Clemente Orozco’s works, see José Clemente Orozco, artnet, https://www.artnet.com/artists/jos%C3%A9-clemente-orozco/ (last visited June 10, 2024). ↑
9. Id. ↑
10. Id. ↑
11. Jenna Russell, In Vermont, a School and Artist Fight Over Murals of Slavery, N.Y. Times (Feb. 21, 2023), https://www.nytimes.com/2023/02/21/us/vermont-law-art-slavery.html. ↑
12. Id. ↑
13. Id. ↑
14. Id. ↑
15. Kerson v. Vt. L. Sch., Inc., No. 5:20-cv-202, 2021 U.S. Dist. LEXIS 176903, at *2–4 (D. Vt. Mar. 10, 2021). ↑
16. Id. at *5. ↑
17. Kerson v. Vt. L. Sch., Inc., 79 F.4th 257, 262 (2d Cir. 2023). ↑
18. Id. at 274. ↑
19. Id. at 265–66. ↑
20. Id. at 266 (citing Destroy, Black’s Law Dictionary (11th ed. 2019)). ↑
21. See id. ↑
22. Id. at 266–67. ↑
23. Id. at 266; 17 U.S.C. § 106A (“[T]he author of a work of visual art . . . shall have the right . . . to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation[.]”) (emphasis added). ↑
24. Kerson, 79 F.4th at 267. ↑
25. Id. at 267. ↑
26. Ejusdem Generis, Black’s Law Dictionary (11th ed. 2019) (“[Ejusdem generis is a] canon of construction holding that when a general word or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items of the same class as those listed.”). ↑
27. Kerson, 79 F4th at 267–68. ↑
28. 17 U.S.C. § 106A(c)(2). ↑
29. Kerson, 79 F.4th at 270. ↑
30. Id. at 267 (citing Mass. Museum of Contemp. Art Found., Inc. v. Buchel, 593 F.3d 38, 61 (1st Cir. 2010)). ↑
31. Mass. Museum of Contemp. Art Found., Inc., 593 F.3d at 43–44. ↑
32. Id. at 44. ↑
33. Id. at 45–46. ↑
34. Id. at 62–63. ↑
35. Kerson, 79 F.4th at 270. ↑
36. Id. at 271–72. ↑
37. Id. at 272. ↑
38. Id. ↑
39. Id. ↑
40. See Betul Tuncer, Public Art vs. Property Rights: Artist and Property Owner Face Off Over a Mural in Wilkinsburg, PublicSource (Mar. 16, 2023), https://www.publicsource.org/wilkinsburg-mural-kyle-holbrook-vara-vision-towards-peace-mind/. ↑