In 1993, Vermont Law School commissioned artist Sam Kerson to paint a series of murals highlighting Vermont’s role in the Underground Railroad. Kerson painted the murals in 1994. He painted them directly on the sheetrock of one of the school’s buildings. The initial reaction to the completed murals was positive.
Fast forward to 2020, and several students started raising concerns about the depiction of African-Americans. The students felt that the depictions included racist stereotypes and raised questions about the appropriateness of a white artist painting depictions of not only African-Americans, but African-Americans who were fleeing enslavement. The school would not be the first institution to have to grapple with the question of what to do with artwork, sometimes with great money and/or historic value, when the interpretation of them changes.
Unlike many cases though Kerson’s work is protected by the Visual Artist’s Rights Act (VARA). When the school suggested either painting over the murals or gluing sound proof panels to them, Kerson reminded it of the provisions under VARA which prohibits the destruction or mutilation of works of “recognized stature” without the artist’s permission. The policy behind VARA is to protect the reputation of an artist.
Kerson did attempt to remove the murals; however because they were painted on sheetrock, his efforts failed. The school then decided to put panels over the murals. The panels did not damage the murals, but it covered them so that they could no longer be seen. Kerson sued the school for violating his rights under VARA. He claimed that the basic fact of covering them up damaged his reputation because the school was tacitly acknowledging that the murals Kerson painted were racist.
In October 2021, the district court found that this did not make for a credible claim under VARA and dismissed his lawsuit. Kerson appealed the ruling, and the appellate court in Vermont heard arguments in late January. At stake is this fundamental question: VARA was enacted in order to allow artist’s to protect their reputation. Is the covering up of art and blocking it from view, without actual damage, harm an artist’s reputation such that it is a violation of VARA? The answer may lay in the reason for covering up the art and whether that reason harms the reputation of the artist.