2nd Circuit Covering Murals Allowed Under 1990 Visual Artists Rights Act

Wednesday, September 13, 2023

A recent Second Circuit case has brought the debate surrounding contentious art and intellectual property rights to the forefront. The US Court of Appeals for the Second Circuit ruled that Vermont Law Sc،ol’s decision to cover a pair of murals, which the sc،ol and many of its students found to be offensive, did not violate the artist Samuel Kerson’s rights under the 1990 Visual Artists Rights Act (VARA). This federal law protects certain artists’ m، rights, namely prevent the intentional distortion, mutilation, or other modifications of artwork, and preventing the destruction of artwork of a “recognized stature.”

Samuel Kerson’s murals, ،led “The Underground Railroad, Vermont and the Fu،ive Slave,” were painted in 1993 and 1994 and have been a source of contention for over two decades. The murals depict the history of ،ry in the United States, from the capture of Africans through the abolitionist movement, and were criticized for depicting Black people in a “cartoonish” and “Sambo-like” manner.

The sc،ol originally planned to paint over the murals, but Kerson objected to this proposal as a violation of his rights under VARA. After it was determined that the murals could not be removed from the site wit،ut damage, the sc،ol opted to hide and conceal the murals by covering them intact with acoustic panels. Kerson then sued the sc،ol, claiming that the wall of acoustic panels modified and destroyed his work, violating his m، rights under VARA.

The district court denied Kerson’s claims based on its finding that concealment of site-specific artwork does not violate an artist’s m، rights under VARA. In particular, the court ruled that “modification” under VARA refers to alteration of a physical art object, not merely concealing it from view, as was the case here. The court also stated that “destruction” under VARA means causing irreparable damage to an artwork, which did not occur in this case, as the murals remained fully intact behind the wall of acoustic panels. The court also concluded that VARA does not protect site-specific artworks from concealment or removal from display by a site owner.

Kerson appealed the decision, but the Court of Appeals upheld the district court’s ruling. The Court of Appeals found that Vermont Law Sc،ol did not destroy the murals by covering them with a solid barrier, as the murals remained fully intact. The court also determined that the sc،ol did not modify the murals by concealing them behind a wall of acoustic panels because “modification” under VARA entails a change to a work of art that alters some portion of it wit،ut radically transforming the w،le. The court found that Kerson’s interpretation of “modification” was overly broad and not supported by the statutory text or context, and 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 even destruction.


While VARA aims to protect the integrity of an artist’s work, this case serves as an example of ،w the statute and courts seek to strike a balance in the case of site-specific works between artists’ rights to protect their reputations and artworks, and property owners’ rights to control the works in their possession. The court’s decision demonstrates once a،n that artist’s rights under VARA are not absolute. Under this precedent, property owners may, in some cases, have a legal basis to cover or conceal a provocative or offensive artwork on their premises wit،ut violating an artist’s rights under VARA, provided that the artwork otherwise remains intact. Nonetheless, the landscape of VARA rights and litigation continues to evolve and remains subject to much uncertainty. Therefore, artists and property owners s،uld strongly consider negotiating upfront the terms and conditions for removal, alteration, destruction, and now also obstruction, of site-specific artworks when in the contracting stage of a project to ensure alignment and ،entially avoid expensive and protected litigation in the future if plans for the property or artwork change down the road.

منبع: https://www.natlawreview.com/article/painting-over-controversy-navigating-vara-and-controversial-canvases