Second Circuit Rejects Claim That Obscuring Murals Violates VARA

• Published date: 01 September 2023
• Subject Matter: Intellectual Property, Copyright
• Law Firm: Frankfurt Kurnit Klein & Selz
• Author: Mr Edward Rosenthal

In thispost from March 2022, I wrote about a case pending in the the Second Circuit that raised the question whether an institution's decision to obscure murals that many considered offensive infringed the rights of the artist who created the murals under the Visual Artists Rights Act ("VARA"). Last week, the Second Circuit affirmed the District Court's grant of summary judgment dismissing the artist's claim in a decision that can be seen here.

The facts of the case are as follows: In 1993 an artist named Samuel Kerson painted two large murals on the walls of a Vermont Law School building. The works are described as depicting the evils of slavery and the efforts of abolitionists and Vermonters in helping enslaved persons seeking to escape. One panel of the mural depicts the violent capture of people in Africa, their forced sale at auction and the brutality of slave labor. The other panel depicts abolitionists and the role of Vermonters in sheltering escaped enslaved people and helping them get to Canada.

For the past 20 years, some students at Vermont Law School have been complaining about the murals, including stating that the depiction of enslaved persons were "cartoonish, almost animalistic." Following the killing of George Floyd in 2020, students submitted a petition calling for removal of the murals and an Associate Dean/Law Professor approached the Law School's President, who decided that the murals should be removed. Apparently, there was some debate over this conclusion, with some students objecting to the removal of the mural.

After concluding that the murals could not be removed without destroying them, the law school decided to cover the murals with panels that would permanently obscure the murals from view purportedly without harming them. Kerson then brought a suit under the Visual Artists Rights Act (commonly known as VARA), which is codified as Section 106A of the Copyright Act. The statute can be viewed here.

VARA, which applies to works created after 1990 (and to some older works where title remains with the creator), gives the author of a work of visual art the right to "prevent any intentional distortion, mutilation, or other modification" of that work which would be prejudicial to his or her honor or reputation" and to "prevent any destruction of a work of recognized stature." The statute was designed to afford to artists a kind of "Moral Right" such as are more broadly recognized in certain other countries. There are limitations to...