It’s not often that VARA cases come along. This one stems from an attempt by the Vermont School of Law to cover up a mural created by artist Samuel Kerson in 1993. The mural consists of two panels and is titled, The Underground Railroad and the Fugitive Slave. The panels were designed to depict the evils of slavery and the role of Vermont abolitionists in helping escaped slaves navigate the Underground Railroad to freedom. Several years later the school starting receiving complaints about the mural, stating that the “cartoonish” and “almost animalistic” depictions of enslaved people was offensive.
Initially the school notified Mr. Kerson of their intent to remove the murals, giving him the opportunity to remove them himself. However, both parties came to the conclusion that the murals could not be removed without significant damage as they were painted on sheet rock. The school then decided to cover the murals permanently. They proposed a method that would not damage the murals—merely conceal them from sight. Mr. Kerson filed a lawsuit claiming that by covering them up, the school was violating his rights under the Visual Artist’s Rights Act (VARA).
The court held that merely concealing the mural from view did not fall under the provisions of VARA preventing the distortion or mutilation of a work. It cited one other case from 2010 in which the court found that merely covering a work was not a violation of an artist’s rights under VARA.
Mr. Kerson plans to appeal the court’s decision to the Second Circuit.