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Kerson v. Vermont Law School, Inc.

United States Court of Appeals for the Second Circuit
79 F.4th 257 (2023)

Written by Jamie Milne, JD

Facts

In 1993, Vermont Law School (VLS) (defendant) commissioned artist Samuel Kerson (plaintiff) to paint two large murals on the sheetrock walls inside a student center. The murals commemorated Vermont’s role in the Underground Railroad, depicting eight scenes related to the history of slavery in America. Starting in 2001, VLS began receiving periodic complaints about the murals, specifically about the way they depicted African people in a cartoonish, animalistic way. In 2020, VLS received a petition from many students, alumni, and staff calling for the murals’ removal. Because the murals could not be separated from the sheetrock without being damaged, the school decided to instead cover the murals with fabric acoustic panels. Kerson sued VLS, seeking an injunction preventing VLS from covering the murals. Kerson argued that installing the panels would modify or destroy the murals in a manner violating his rights under the Visual Artists Rights Act of 1990 (VARA). The district court granted summary judgment in VLS’s favor, holding that hiding the murals behind acoustic panels neither modified nor destroyed the murals and thus did not violate VARA. Kerson appealed.

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Holding and Reasoning (Livingston, C.J.)

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