On August 18, 2023, the Second Circuit held that Vermont Law School’s permanent concealment of two controversial murals located at the school did not violate the mural creator’s rights under the Visual Artists Rights Act of 1990 (“VARA”).[1] In a unanimous opinion authored by Circuit Judge Debra Ann Livingston and joined by Circuit Judge Jose A. Cabranes and District Judge Rachel P. Kovner of the Eastern District of New York (sitting by designation), the Court of Appeals concluded that permanently concealing the murals did not constitute “modifying” or “destroying” them and thus did not violate the artist’s rights under VARA.  The court’s holding provides clarity for others who possess works protected by VARA that they may wish to shield from public view.   

VARA

VARA was enacted in 1990 as an amendment to the U.S. Copyright Act to provide living creators of “works of visual art”[2] with certain non-transferable “moral rights” with respect to their artwork.[3]  Those rights include the artist’s right, subject to defined limitations, “to prevent any intentional distortion, mutilation, or other modification of [his or her work] which would be prejudicial to his or her honor or reputation.”[4] 

The statute specifies that “the modification of a work of visual art which is a result of conservation, or of the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification described in subsection (a)(3) unless the modification is caused by gross negligence.”[5] The latter has become known as the “public presentation” exception.

The Murals at Vermont Law School

The two murals at issue in Kerson v. Vermont Law School are collectively titled The Underground Railroad, Vermont and the Fugitive Slave.  Artist Samuel Kerson painted them on the walls of the school’s community center in 1993 and 1994 to commemorate Vermont’s role in the Underground Railroad.[6]  Each mural is eight feet high by twenty-four feet wide and depicts scenes from the history of slavery and contributions of Vermont’s citizens to the abolitionist cause.[7]  

Although it is undisputed that the artist created the murals with the intent of advancing social justice, the artwork later drew criticism for supposedly depicting slaves “in a cartoonish, almost animalistic style,” and as “racist caricatures.”[8]  That criticism came to a head in August 2020 when, in the wake of nationwide protests for racial justice in response to the killing of George Floyd, a petition by students, alumni, faculty and staff seeking the removal of the murals gained traction.  In response, Vermont Law School informed Kerson that, if he did not arrange to remove the murals, the School would remove or cover them.[9]  After Kerson determined that the murals could not be removed from the building without destroying them—as they were painted directly on the sheet rock of the building—the School decided to erect fabric-cushioned acoustic panels in front of the murals to permanently conceal them from public view.[10]

The Lawsuit

In response to the school’s plan to conceal the murals, on January 20, 2021, Kerson sought a preliminary injunction in the U.S. District Court for the District of Vermont on the basis that the School’s conduct would modify or destroy his murals in violation of his rights under VARA.

On March 10, 2021, the district court denied Kerson’s motion for a preliminary injunction, concluding that Kerson failed to establish a likelihood of success on his VARA claim because the language of VARA “does not include a protection against concealment or removal from display of artworks by the owner.”[11]

Subsequently, on October 20, 2021, the court granted summary judgment in the School’s favor, finding that VARA does not prohibit permanent concealment of artwork, and that such concealment is neither a modification nor destruction of the artwork.[12]  The court relied in part on the ordinary meaning of the term “modify,” reasoning that the word is not typically used “to describe moving an object to a location where it cannot be seen.”[13]  It also relied in part on the public presentation exception, reasoning as follows:  “Since the manner in which an artwork is shown is not a modification, the manner in which it is not shown is not a modification for purposes of the VARA either.”[14]

The court summarily rejected Kerson’s argument that covering the murals with acoustic panels might “modify” the works by creating environmental conditions that could damage the murals over time, since VARA explicitly excludes environmental changes from those modifications that an artist may seek to prevent.[15]  

Finally, addressing Kerson’s claims that concealment of the murals would effectively destroy them, the court concluded that, under VARA, “concealing the murals behind a wall of acoustic panels is the same as removing a painting from a gallery and storing it out of public view.  In either case, the art has not been ‘destroyed.’”[16] 

Following the district court’s decision, Vermont Law School installed the panels.  

The Appeal

Kerson appealed.  He argued that the district court defined “modification” and “destruction” too narrowly, and that the court ignored Kerson’s broader definition of “destruction” under VARA.[17]

The Second Circuit affirmed the district court’s decision.  Like the district court, the Second Circuit concluded that “destruction” under VARA is unambiguous, and that Kerson’s argument could not succeed because the panels covering the murals “did not physically alter them whatsoever, let alone ruin them or render them unrepairable.”[18]  Likewise, the court reasoned that a modification “connotes a change to a work of art that somehow adulterates the viewing experience, presupposing that at least some portion of the work remains visible, albeit in altered form.”[19]  Further, the court concluded, “‘modification’ as employed in VARA does not encompass merely concealing an artwork from view in a manner that does not otherwise alter the work.”  Rather, a modification includes “certain alterations to the work itself, such as an additional brush stroke, erasure of content, or reorganization of a movable component” that do not radically transform the whole work.[20] 

In reaching its conclusions, the Second Circuit considered the ordinary meanings of the terms “destruction” and “modification,” their statutory context, and case law interpreting VARA.  The court also relied in part on a 2010 decision, Massachusetts Museum of Contemporary Art Foundation, Inc. v. Büchel, in which the First Circuit held that partially covering with a tarpaulin an incomplete art installation in a museum did not constitute an intentional act of distortion or modification under VARA.[21]  Unlike in that case, here there was not even a question as to whether a partial covering could create a distorted view of the art since the Vermont Law School panels completely shield the murals from public view.[22]

In response to Kerson’s argument that the term “modification” is “not limited to physical changes of the artwork itself, but rather includes changes in how the artwork is presented,”[25] the Second Circuit confirmed that an art owner retains discretion under VARA to make decisions about the display and conservation of artwork, so long as the owner does not act with gross negligence.[24]  The court further clarified that, although a choice regarding presentation may cause a modification, the choice itself is not a modification. 

Like the district court, the Second Circuit rejected Kerson’s argument that the acoustic panels would expose the murals to toxic environmental conditions that could damage them to the point of distortion, mutilation, modification or destruction.[25]  The court emphasized that “VARA prohibits only intentional modifications” and found no support in the record that Vermont Law School intended to damage or harm the murals.[26]  

Having found that the School did not modify the murals by concealing them, the Second Circuit concluded that it need not determine whether the public presentation exception applies to immovable art.  Thus, the question of whether the public presentation exception applies equally to movable and immovable art remains open in the Second Circuit.[27]

The Upshot

The Second Circuit’s decision is significant:  it will likely embolden property owners to conceal contentious art with which they don’t want to be associated.  It may also pave the way for property owners to renovate or build in ways that conceal existing works of art for practical or aesthetic reasons.  Thus, the decision serves as a clear warning to artists that their works may not be protected from concealment.  Before undertaking a commission, artists—and especially muralists or others who create works of visual art that they expect to be permanently displayed in a particular location—may benefit from negotiating contractual terms that set specific parameters related to concealment. 

1 Samuel Kerson v. Vermont Law School, Inc., 79 F.4th 257 (2d Cir. 2023).

[2] A “work of visual art” under VARA is narrowly defined to include paintings, drawings, prints or sculptures, existing in a single copy or in a limited edition of 200 or fewer signed, numbered copies.  17 U.S.C. § 101.

[3] 17 U.S.C. §§ 106A, 113(d).

[4] 17 U.S.C. § 106A(a)(3)(A).  The protection for creators of works of “recognized stature” is even more robust—creators of those works have the right to prevent their “intentional or grossly negligent destruction.”  17 U.S.C. § 106A(a)(3)(B).

[5] 17 U.S.C. §§ 106A(c)(2).

[6] Kerson, 79 F.4th at 259-60.

[7] Id. at 260-61.

[8] Id. at 261.

[9] Id.

[10] Id.

[11] Kerson v. Vermont Law School, Inc., No. 20 Civ. 202, 2021 WL 4142268 (D. Vt. Mar. 10, 2021).

[12] Samuel Kerson v. Vermont Law School, Inc., No. 20-cv-00202-gwc, 2021 WL 11691249 (D. Vt. Oct. 20, 2021).

[13] Id. at *6.

[14] Id.

[15] Id. at *7.

[16] Id. at *8.

[17] Kerson, 79 F.4th at 263.

[18] Id. at 266.

[19] Id. at 267.

[20] Id.

[21] Id. at 270 (citing Büchel, 593 F.3d 38, 61–62 (1st Cir. 2010)).

[22] Id.

[23] Kerson, 79 F.4th at 268.

[24] Id. at 268-69.

[25] Id. at 271-73.

[26] Id. at 272 (emphasis in original) (citing 17 U.S.C. § 106A(a)(3)(A) (prohibiting the intentional distortion, mutilation, or other modification” of works of visual art)).

[27] Id. at 269 n.8.