David Akst
In 1993, artist Samuel Kerson painted a two-panel mural called The Underground Railroad, Vermont and the Fugitive Slave, on a wall of the private Vermont Law School (VLS), which had commissioned him to do so.[1] Eight feet high and 48 feet across, the mural depicted the violence of American slavery and Vermont’s role in freeing some slaves.[2] The piece was painted directly onto sheetrock, mostly eliminating the possibility of its removal without destruction. That would become a big issue when, after 20+ years of student complaints and the summer of 2020, VLS decided it would no longer display the mural.[3] But VLS also may have known or suspected that the mural would meet the standard of “works of recognized stature” under the federal Visual Artists Rights Act of 1990 (VARA), which largely prohibits the destruction of such works even by their owner during the life of the artist; VLS decided to conceal the mural with a “permanent” wall of acoustic panels.[4]
On October 20 of this year, the US District Court for the District of Vermont granted summary judgement in the case of Kerson v. Vermont Law School, Inc., allowing VLS to construct a wooden frame an inch above the mural’s surface and cover it with acoustic panels.[5] The court rejected Kerson’s arguments that concealing the mural in this way constituted either “modification” or “destruction” of the work.[6] It looked to the common meanings of “modify” and “destroy” and instead likened the concealment to “a portrait or bust that is removed from public exhibition and placed in storage.”[7]
Had it existed at the time, VARA might have prevented the 1934 destruction of Diego Rivera’s mural Man at the Crossroads at Rockefeller Center, where the conspicuous inclusion of Lenin’s portrait in the work they’d commissioned antagonized the Rockefellers and the Center’s management to the point of having it destroyed.[8] At that point, property rights defeated artists’ rights handily. Under VARA artists’ rights in mural art can challenge real property rights, though litigation on the subject has been limited. One such issue arose recently in the famous case of Castillo v. G&M Reality L.P. (2d Cir. 2020) when a property developer hoping to demolish the iconic street-art-covered factory buildings as 5 Pointz in New York’s Long Island City whitewashed the artwork.[9] The developer had owned the buildings since before VARA’s enactment and had allowed many of the murals to be painted post-VARA.[10] Dozens of the lost works at 5 Pointz were found to be “of recognized stature”, and statutory damages of nearly $7 million were awarded to the artists following the destruction.[11]
In the 5 Pointz case some pieces could have been removed. But often removal of mural art is all but impossible, as in Kerson, given the nature of the medium: walls, usually intended and expected to stay in one place.
As the Kerson court notes, there is no artists’ right to the presentation or display of their works under VARA, and the owner of a VARA-protected work is welcome to let it sit in a bank vault or an attic for decades. But storage does not imply permanence, to most, while the court and VLS describe the plan to cover Kerson’s mural as “permanent.”[12] The permanence of this concealment seems noteworthy, though the court makes little importance of it.
The court in Kerson points to another decision, English v. BFC R East 11th St. LLC, from the Southern District of New York, which rejected the argument “that permanently concealing an exterior mural from view is the equivalent of destroying it.”[13] Holding otherwise, the English court said, would allow building owners to block development of adjacent lots “by simply painting a mural on the side of their building.”[14] In that case a new building was to be constructed close enough to obstruct the view of the murals at issue, without physically altering or touching the murals.
Any sort of right of display under VARA does seem unreasonable to me, and the English court was right to be concerned about the real-property effects of treating concealment of murals as destruction. But one must wonder whether there are some limits to the permissibility of permanent concealment.
Imagine: Vermont Law School decides it wants to bulldoze the building currently housing Kerson’s mural and build a gleaming new glass-and-steel behemoth in its place. It cannot destroy Kerson’s mural as long as he lives, and it doesn’t want to wait around. So it bulldozes everything except the 48-foot stretch of wall bearing the mural. This it surrounds in two feet of rebar-reinforced concrete on all sides (leaving, of course, an inch between the mural and its concrete coffin). Then it builds the rest of the building around and above that block. Let’s assume that the conservation impact on the mural is negligible.
This is probably fine under what limited caselaw exists on the subject. But once a work of art has been entombed in 100,000 tons of concrete and steel, has it not been effectively destroyed? Is it really any harder to repair a Rothko canvas painting which has been sliced a handful of times with a kitchen knife than it is to level a full city block to access a buried stretch of sheetrock? Has the artist, and the world, not just as meaningfully lost something in the latter scenario as in the former?
The Kerson decision seems reasonable given the facts at hand, and doesn’t seem to frustrate the purpose of VARA. But we can be confident that property developers, faced with immovable-yet-protected mural art standing between them and a big payday, will be willing to get creative with concealment of a kind far less reversible than a long wood-and-foam panel.[15] To maintain VARA’s potency in the mural context, such future action should be closely scrutinized.
[1]Kerson v. Vermont Law School, Inc., No. 5:20-cv-00202-gwc (D. Vt. Oct. 20, 2021). Available at: https://fingfx.thomsonreuters.com/gfx/legaldocs/lbpgnombavq/IP%20VERMONT%20VARA%20ruling.pdf.
[2] For photos of the work and descriptions from the artist, see Samuel Kerson, The Underground Railroad, Vermont and the Fugitive Slave, https://www.samkerson.com/murals/undergroundmural.html.
[3]Kerson, No. 5:20-cv-00202-gwc at 3.
[4]Id. at 1; 17 U.S.C. §106(A).
[5]Kerson, No. 5:20-cv-00202-gwc.
[6] Id.
[7]Id. at 11-13, 15-17; quote at 13.
[8]Wikipedia, Man at the Crossroads, https://en.wikipedia.org/wiki/Man_at_the_Crossroads.
[9]Castillo v. G&M Realty L.P., 950 F.3d 155 (2d Cir. 2020).
[10]Id.
[11]Id.
[12]Kerson, No. 5:20-cv-00202-gwc at 4.
[13]Id. at 15, describing English v. BFC&R East 11th Street LLC, No. 97 Civ. 7446(HB), 1997 WL 746444 (S.D.N.Y. Dec. 3, 1997), aff’d sub nom. On other grounds, English v. BFC Partners, 198 F.3d 233 (2d Cir. 1999).
[14]English, No. 97 Civ. 7446(HB), 1997 WL 746444 at *6.
[15] It is worth noting that the artists’ VARA rights against destruction or modification can be waived. This is not helpful, however, for developers who obtain properties whose previous owner commissioned or allowed a mural post-VARA without seeking such a waiver.