A federal court has ruled against artist Sam Kerson, who sued the Vermont Law School after it covered up his murals featuring offensive stereotypical depictions of Black people. The ruling issued on August 18 marks the second time a court has sided with the school. According to United States Circuit Chief Judge Debra Livingston’s 39-page opinion, the case presented “weighty concerns” over an artist’s moral right to maintain their work’s integrity and a private entity’s right to control the art in its collection.
The school commissioned Kerson, a White artist who runs a giant puppet company, to paint the two 8-by-24-foot murals in the early 1990s. The pair of works, jointly titled “The Underground Railroad, Vermont and the Fugitive Slave,” depict Kerson’s interpretation of the New England state’s role in the 19th-century Abolitionist movement. They comprise colorful, cartoonish renderings of enslaved people, enslavers, and White abolitionists. As noted in the Friday decision, critiques of the murals have noted that they portray Black people in an “almost animalistic style” that is “eerily similar to ‘Sambos’ or other racist … caricatures.”
Vermont Law School first started receiving complaints about Kerson’s murals as early as 2001. The institution’s diversity committee first considered their removal in 2013, and in 2020, students Jameson Davis and April Urbanowski circulated a letter calling attention to the work’s stereotypical portrayals of Black people. They garnered dozens of supporters at the small school, which had about 170 students enrolled this past school year. In an interview with the school newspaper The Forum, Davis described the murals as “insensitive, demoralizing, inaccurate, [and] dispiriting.”
The institution took action, announcing that year that it would paint over “The Underground Railroad, Vermont and the Fugitive Slave.” The school gave the artist 90 days to remove the works, but Kerson found there was no way to extricate the murals from the underlying drywall without damaging them. The school decided it would cover the paintings with acoustic panels. In December 2020, Kerson sued the school under the 1990 Visual Artists Right Act (VARA), which protects creators from the modification or destruction of their work.
A 2021 decision ruled against Kerson on the basis that concealing an artwork is not the same as modifying or destroying it. The school installed the panels two inches above the mural’s surface, but Kerson appealed.
According to Judge Livingston’s opinion, hiding the murals behind a barrier “neither modifies nor destroys them” and VARA does “not mandate the preservation of art at all costs and without due regard for the rights of others.”
Philippa Loengard, an art law professor at Columbia University, told Hyperallergic she believes the ruling was appropriate. “Any other conclusion would force a right to display on anyone who owns a piece of artwork,” Leongard explained. “Without some recourse to address changing tastes, norms, or even mere decorative style, I would fear no individual or institution would commission a work without first getting an artist’s complete waiver of her VARA rights, a great loss for the artist.”
Kerson’s lawyer, Steven Hyman of McLaughlin and Stern, said in a statement that he was “disappointed” in the court’s interpretation of VARA and is considering options to move forward, adding that the “very purpose of VARA was to preserve, protect art and to prevent changes to the art that would prejudice the honor and integrity of the artist” and that covering the murals “is contrary to what Congress clearly intended in enacting the statute.”
Kerson used to live in Vermont but now resides in Montreal, where he runs the puppet company Dragon Dance Theater with his wife Katah Katah. The couple provided the following statement to Hyperallergic:
Aiding Fugitive slaves is part of our Vermont Cultural heritage, especially at the time of the Fugitive Slave Act, Vermont took a progressive stand on 13 November 1850, the Vermont Legislature passed the Habeas Corpus law that protected fugitives at a state level. Even the Vermont state courts protected fugitives. Thanks to the Quakers for carrying this idea forward in Montpelier. Our murals, created by the Dragon Dance Community in 1993, at the Vermont Law School in South Royalton, Vermont were a restatement of that Vermont ethic. Which we echo today when we say, Open Borders, Safe Passage, Stand up for Your Rights, Welcome our Brothers and Sisters. This unfortunate misunderstanding and misreading of our murals, The Underground Railroad, Vermont and the Fugitive Slave will not deter us. Peace in Ukraine, Stop the Bombing.
A spokesperson for the Vermont Law School told Hyperallergic, “Vermont Law and Graduate School is pleased with the Second Circuit Court of Appeals’ decision, which we believe strikes the appropriate balance among the competing interests at stake.”