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Column: Very interested bystander to VLS murals case

  • Steve Nelson

For the Valley News
Published: 10/15/2021 10:20:02 PM
Modified: 10/15/2021 10:20:12 PM

I feel a bit like someone who planted land mines nearly 30 years ago and now read news reports about their detonation and the ensuing damage. Not literally of course.

The land mines to which I refer are Sam Kerson’s murals at Vermont Law School titled, Vermont, The Underground Railroad and Vermont and the Fugitive Slave. The murals, painted on a wall in the law school’s Chase Community Center, have been deemed offensive by students of color (and others) due to their sense that the depictions of African Americans are crude stereotypes. These concerns prompted VLS to plan to paint over the murals. Kerson got wind of the plan and an extended brouhaha commenced.

As to the planting: I was the law school’s director of development at the time. Kerson and a colleague, Fredd Lee, visited me in 1993 to propose the murals. They believed that the law school’s progressive mission made it a suitable site for a work celebrating Vermont’s place in history as part of the Underground Railroad. We scouted the campus and settled on the blank expanse in the Chase Community Center. I discussed this with the then-dean, the late Max Kempner, who provisionally supported the idea. After a review of Kerson’s detailed sketches, the project got a green light and work began.

Fast forward to today. After dialogue with Kerson, the law school revised its plan, intending to cover the murals with acoustic tiles rather than painting over them. Kerson was not satisfied and sued VLS, claiming that the plan to cover his art constituted a violation of the federal Visual Artists Rights Act, which protects a living artist’s creation from “any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right.”

VLS is seeking dismissal of the suit, and a hearing was held on Oct. 8 before federal District Court Judge Geoffrey W. Crawford. VLS argues, among other things, that covering the mural is not a violation of the Visual Artists Rights Act and, in fact, forcing the school to display the work is a violation of the school’s First Amendment rights. Crawford surprisingly admitted prior ignorance of the Visual Artists Rights Act, enacted in 1990, and did not advance the case for summary dismissal with an inapt and inept analogy. As reported by the Valley News (“Mural case on display for law students,” Oct. 9): “Crawford noted that if he owned a portrait painting and drew a mustache on it, that might be considered a modification that mocks the artist, but if he just kept the portrait in his basement and directed verbal abuse at it, then the artist would have no legal recourse.”

A mural is not a portrait. A portrait, by design, is movable without damaging, distorting, mutilating or modifying its integrity. A mural is, by stark contrast, specific as to place and its permanence is implicit. It is hard to view covering Kerson’s murals as anything but a modification. The law school’s position is not strengthened by one of the few or only Visual Artists Rights Act cases involving a mural. Kent Twitchell’s 2006 mural depicting pop artist Ed Ruscha was painted over without his approval. In 2008 Twitchell agreed to the largest settlement ever under the act — an $1.1 million judgment against the U.S. government and 12 defendants.

This case is unique for its emotional and ideological crosscurrents. Unlike Confederate statues or other art that represents a noxious world view, Kerson’s work represents the courage and nobility of the pursuit of racial justice. I know that his work and images come from the tradition of folk art, not from racist caricature. I know Sam Kerson to be a man of integrity who is committed to social justice. In that respect, it seems reasonable that he would find hiding his murals “prejudicial to his ... honor or reputation.”

On the other hand, it is not for Kerson or me to judge what should or should not be deemed offensive by people of color. It is a conundrum that captures much of the volatility of the current racial dynamic, claims of “cancel culture” and the inarguable right of people of color to question and critique how they are represented.

It seems too easy to dismiss the suit, cover the murals and be done with it. While I have no authority, moral or otherwise, to influence this case, my role in the murals’ birth makes me a very interested bystander.

As a step toward a mediated agreement, perhaps Kerson and the offended parties could sit together in good spirit and discuss the complex dynamics of the case. I think everyone would benefit.

Steve Nelson is a Valley News columnist. He can be reached at stevehutnelson@gmail.com.




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