On Friday August 18, 2023, the Second Circuit Court of Appeals issued its ruling inKerson v. Vermont Law School, a case that "presents weighty concerns that pin an artist's moral right to maintain the integrity of an artwork against a private entity's control over the art in its possession." Kerson v. Vermont Law School, No. 21-2904, p. 38.
Vermont Law School commissioned murals depicting Vermont's support for the "Underground Railroad" of Black Americans fleeing slavery prior to the Civil War. Starting in approximately 2020, Vermont Law School faced protests over how the murals depicted slaves, those helping them escape servitude, and others. When the Law School decided to permanently conceal the murals, the artist sued under the Visual Artists Rights Act ("VARA"), which allows living authors to prevent the destruction or intentional distortion, mutilation or other modification of any work of visual art they have created since VARA became law in 1991. See 17 U.S.C. § 106A(a)(3)(A) (prohibiting the "intentional distortion, mutilation, or other modification" of works of visual art).
The lower court refused to issue an injunction against concealment, and ultimately granted summary judgment to the Law School, which then installed acoustic barriers that did not touch the murals, but as intended, prevented anyone from seeing them. Kerson appealed the dismissal of his lawsuit, arguing that concealing the murals constituted either destruction or mutilation of them under VARA. In a victory for property and art owners' rights to determine whether and how to display works of art, the Appeals Court affirmed the dismissal of the artist's claims against Vermont Law School for allegedly destroying them. Citing multiple prior decisions, the Appeals Court found that "Kerson's reading [of VARA] does not comport with any conventional understanding of the word 'destruction,'" and affirmed the lower court's conclusion that hiding an artwork behind acoustic panels that did not touch it could not constitute 'destruction.'" Kerson, p. 19.
The artist also claimed that concealing his artwork constituted illegal "modification" of it, arguing that "VARA endows artists with the right 'to prevent 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[.]' 17 U.S.C. § 106A(a)(3)(A)." Kerson, p. 20. Again, the Appeals Court confirmed the lower court's order, ruling that "[t]he statutory context supports a reading of 'modification' that is cabined to perceptible changes to an artwork that affect how the work is viewed." Kerson, p. 22.
Most significantly, the Appeals Court ruling clarifies that destruction and mutilation concern only physical actions taken with respect to an artwork. Such actions must be considered in isolation from the conditions in which an artwork is displayed or stored. Such actions must also be considered separately from their effects on the artist's reputation. The court ruled:"Kerson claims that when placed in its proper context the word 'modification' 'must be considered in conjunction with how the modification impacts . . . the author's honor or reputation.' We disagree. The word "modification" as used in VARA connotes a change to a work of art that somehow adulterates the viewing experience, presupposing that at least some portion of the work remains visible, albeit in altered form. ... Modification, as conventionally understood, does not include concealing a work of art behind a solid barrier, assuming the work remains intact while hidden from view." Kerson, pp. 20-21 (citations omitted, emphasis added). "[A]n art owner retains discretion to make decisions about how to display and conserve art after it has been purchased, so long as the owner does not act with gross negligence." Id., p. 26.
In many circumstances, moving or modifying a work of visual art, or merely the conditions in which such artwork is displayed or stored, exposes the owner to a lawsuit under VARA by the living author. Significant financial penalties apply to intentional destruction, gross negligence, or even mere removal of a work of visual art if it results in destruction, mutilation or modification of the work in violation of the author's rights under VARA. There are many exceptions to those rights, but they are detailed, and turn on such details as the extent of conservation efforts by the owner of the work of art or the property where it is installed, the stature of the work of art, how it is stored or displayed, whether it may be removed without destroying or mutilating it, and the content and timing of any written waivers or notices sent to the artist prior to the artwork's installation or removal.
Property and art owners are well advised to proceed with caution, and to consult counsel knowledgeable about VARA rights before modifying, removing or destroying any work of visual art created since 1991 or indeed any work of visual art of recognized stature created prior thereto. Altering, moving (or even, asthe Kerson case shows, merely concealing) a sculpture or painting out an existing mural, even one with little artistic stature, can result in legal action. Attorneys in Moses Singer's intellectual property and real estate practices are experienced in and frequently advise on such matters.
Originally published by Westlaw.
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