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

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.