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Artist sues over Vermont Law School’s plan to remove murals

  • A panel from a mural by Sam Kerson that had been displayed at Vermont Law School in Royalton, Vt. The school plans to paint over the mural, "The Underground Railroad Vermont and the Fugitive Slave," painted in 1993, because "the depictions of the African-Americans on the mural are offensive to many in our community and, upon reflection and consultation, we have determined that the mural is not consistent with our School’s commitment to fairness, inclusion, diversity, and social justice," according to a statement from VLS Dean Dean Thomas McHenry on July 6, 2020. (Image courtesy Sam Kerson)

Valley News Staff Writer
Published: 12/11/2020 10:41:15 PM
Modified: 12/11/2020 10:41:29 PM

BURLINGTON — The artist who painted two now-contentious murals at Vermont Law School has filed a lawsuit against the school seeking to preserve the artwork or to recover financial damages if the law school removes them or covers them up.

Sam Kerson and others painted the murals, titled Vermont, The Underground Railroad and Vermont and the Fugitive Slave, in 1993 and 1994 in the law school’s Chase Community Center. Earlier this year, students asked the school to remove the murals, contending that their depiction of African Americans is offensive.

Law school officials announced in July plans to have the 8-by-24-foot murals, “painted over.” Kerson object ed, and in late July the South Royalton-based law school gave him 90 days to have them removed.

In the lawsuit, filed Dec. 2 in U.S. District Court in Burlington, Kerson contends that the murals cannot be moved, as they were painted directly on the walls of the law school’s Chase Community Center.

Under the Visual Artists Rights Act, or VARA, a 1990 federal law, the murals are safeguarded from removal or destruction, according to the lawsuit.

Passed as an amendment to the Copyright Act, VARA allows artists to protect their work from “any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation.”

Further, the law protects works of “recognized stature” from destruction either through intent or gross negligence.

“The answer is, the property owner does not have the right to destroy the mural,” Steven Hyman, a New York City-based lawyer who has a home in Andover, Vt., and is representing Kerson in the lawsuit, said in an interview Friday. “It’s as definitive as that.”

Hyman was the board president of the New York Civil Liberties Union, and also represented the creator of the celebrated Charging Bull sculpture in lower Manhattan, who contended that the Fearless Girl sculpture installed facing the bull infringed on his artistic copyright.

If the law school has “destroyed, disfigured, mutilated or otherwise modified the murals,” under the provisions of VARA, the lawsuit requests a financial award of $150,000 for each mural.

Kerson’s lawsuit also asks for an injunction preventing the law school from removing or even covering the murals.

Vermont Law School has not filed a response to the lawsuit with the court, but issued a written statement from Glenn Berger, chairman of the school’s board of trustees. “The board is supportive of and sympathetic to the many students, faculty and staff, and other members of the VLS community who find the mural offensive because of how it caricatures enslaved Africans specifically and casually stereotypes Black bodies in general,” Berger said

“VLS has gone to great effort and in accordance with The Visual Artists Rights Act of 1990 (VARA) to provide the artist with ample time to have the mural removed without success. We will urge the District Court to permit the Law School to remove the mural. In the meantime, we do not believe VARA prohibits covering the work, and we will do so until the Court has resolved this matter.”

The law school sought to paint over the mural after students said its depiction of African Americans was exaggerated to the point of caricature.

In a letter to the law school earlier this year, students Jameson Davis and April Urbanowski pointed out that a diversity committee raised questions about the murals as far back as 2013.

The murals, which depict the trans-Atlantic slave trade and slaves escaping via the Underground Railroad to Vermont, are Kerson’s “most notable work,” his lawsuit asserts, and his reputation as an artist will be “irreparably harmed” if the murals are modified or destroyed without his consent.

Now 74 and a longtime resident of Quebec, Kerson was living in Middlesex, Vt., when he and others painted the murals. The lawsuit cites a letter from the law school at the time.

“We are delighted that you have chosen VLS as the site for your mural,” the letter reads, according to the lawsuit. Kerson was participating in a cyber arts conference in Mexico on Friday and wasn’t available for comment.

When the mural was painted, the law school could have worked out a contract with Kerson under which it could have reserved the right to remove the murals, Hyman said. Or VLS officials could have arranged for the murals to be painted on a movable surface, rather than directly on the walls.

Kerson and “carpenters familiar with the hanging and displaying of art” examined the murals after the law school gave him 90 days to remove them, but they found that “any effort to remove them would require disfiguring the Murals and cutting them into sections,” the lawsuit says.

Kerson told the law school on Oct. 8 that he could not be required to remove the murals and that he did not consent to the law school removing or covering them.

While VARA offers some protection to artists, there are limits.

“VARA only protects during the lifetime of the artist. Though I’m not advocating that they can be destroyed,” after Kerson dies, Hyman said. “During the artist’s lifetime, he has a right to have that preserved.”

Alex Hanson can be reached at ahanson@vnews.com or 603-727-3207.




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