Judge grants extension to artist of controversial murals at Vermont Law School

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    A panel from murals by Sam Kerson that had been displayed at Vermont Law School in Royalton, Vt. The school plans to cover the murals, "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: 5/5/2021 10:00:20 PM
Modified: 5/5/2021 10:00:29 PM

SOUTH ROYALTON — A federal court judge has granted artist Sam Kerson more time to make his case against Vermont Law School’s plan to cover with acoustic tiles a pair of murals he painted almost three decades ago that members of the VLS community now regard as racially insensitive.

In an order issued April 30, U.S. District Court Judge Geoffrey Crawford gave Kerson until July 9 to explain how the law school’s plan might damage the murals, which each measure 8 feet by 24 feet and depict African American slaves and their flight to Vermont via the Underground Railroad. The law school will have until Aug. 2 to respond, after which the court will schedule a hearing.

Kerson also argues that the law school’s plan to cover the murals, which he and assistants painted directly on the walls of the law school’s Chase Community Center in 1993 and 1994, violates his rights under the federal Visual Artists Rights Act (VARA).

“The intentional covering of the murals — whether physically touching the wall or not — constitutes an impermissible modification of the artwork,” Kerson’s lawyers, Richard Rubin, of Barre, Vt., and Steven Hyman, a former president of the New York Civil Liberties Union, wrote in their request for time to track down experts who can attest to the soundness of the law school’s plans.

A March order from Crawford appeared to have settled the main issues of the case by allowing the law school to cover the murals with acoustic tiles attached to a frame that doesn’t touch the artwork. The law school’s written response to Crawford’s order granting Kerson more time to gather information condemns the artist’s request, and the order granting it, as “a wholly unnecessary and unwarranted use of time and resources.”

Covering the mural would not damage or destroy it, the law school’s lawyer, Justin Barnard writes. “What Kerson wants is not to ensure that his work be maintained to his specifications behind a permanent cover, but rather that the mural remain on display.”

Passed by Congress in 1990, 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.” The Vermont Law School case breaks new legal ground, as there have been no cases that test an artist’s rights when the owner of that art, in this case the law school, wants to keep it out of view. The law school’s plan is not to show the murals again. VARA protects an artwork of “recognized stature” only during the artist’s lifetime.

Kerson, who is in his mid-70s, objected last summer when law school officials expressed their intention to paint over the murals, which have been criticized by students for many years for their exaggerated depictions of African Americans. The law school gave Kerson 90 days to determine whether the murals could be removed, but experts found that any attempt to remove the murals would destroy them. He filed suit against the law school last fall.

His lawyers argue that covering the murals falls under the “other modification” label in the law.

The law school disagrees, and should its request for summary judgment be denied and the case proceed to trial, the law school will bring forward its own experts “on issues germane to VARA, including whether the mural qualifies as a work of ‘recognized stature’ subject to protection from destruction,” Barnard said in a filing on April 29.

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

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