Artist of Chase mural files action in U.S. District Court to prevent mural’s covering/removal

By Lorentz Hansen, Copy Editor, & Julia Guerrein, Editor-in-Chief

VLS President and Dean Thomas McHenry notified the VLS community on Thursday evening that artist Sam Kerson, who painted the mural “The Underground Railroad, Vermont, and the Fugitive Slave” in the school’s Chase center, filed an action to “prevent removal or covering of the mural,” according to McHenry’s email.

Kerson, a former VT resident now living in Quebec, filed the complaint in the U.S. District Court of Vermont on Dec. 2. Kerson is seeking a temporary, preliminary, and permanent injunction against VLS, statutory damages of $150,000 for each of the two mural panels if VLS has “destroyed, disfigured, mutilated or otherwise modified the Murals,” actual damages, and reasonable costs and fees, according to the complaint.

The complaint states in part, “The Murals which depict Vermont’s efforts to help slaves seeking freedom in the years before the civil war, achieved nationwide recognition. Notwithstanding such recognition, in July of 2020, VLS announced that because of some complaints by students, who apparently found the murals ‘offensive’, it was going to paint over the Murals. When Kerson learned of this, he advised VLS that he did not consent to destruction of his art and asserted his rights under VARA. Nevertheless, VLS, purporting to give notice to Kerson to remove his art, has informed Kerson that it intends to permanently cover the murals with acoustic tiles.”

The claim comes after the VLS Board of Trustees voted on July 24 to have the mural removed from the community center’s walls. The Board gave Kerson 90 days to remove the mural, which elapsed on Oct. 24.

The Board’s decision followed a renewed push for the mural’s removal by current 3Ls Jameson Davis and April Urbanowski in early June. Students previously formally expressed concerns about the mural in 2013, at which time the school’s Diversity Committee held a special meeting to discuss the mural. According to Davis, who spoke with alumni about the mural, the responses at the time were “overwhelmingly negative.”

The mural depicts the capture, enslavement, auction, and forced labor of African peoples, subsequent resistance and abolition movements, and scenes of Vermonters protecting enslaved persons and helping them to the Canadian border.

Kerson and a handful of assistants painted the mural in 1993 and installed it in the Chase center on two 8′ x 24′ panels. The mural was “awarded a seed grant by the Puffin Foundation” and meant to “celebrate[] the efforts of black and white Americans in Vermont and in the United States to achieve freedom and justice,” according to Kerson’s website.

Davis and Urbanowski distributed an email about their efforts on June 30 and quickly garnered signatures from over 73 current students and 109 alumni in support of the mural’s removal. On July 6, McHenry recommended to the school’s Board that the mural be removed.

Kerson responded to Davis and Urbanowski’s renewed effort, likening it to “burning books” and comparing it to the “thuggery” behind destruction of a Frederick Douglass statue in Rochester, NY in early July. Kerson remarked that the mural “is a monument to abolition in Vermont and a description of the people who struggled against slavery, and it is important to our culture,” according to the VT Digger.

The Board’s decision and 90-day deadline was “in accordance with the Visual Artists Rights Act of 1990 (VARA),” according to McHenry’s most recent email. McHenry wrote that the school learned earlier this week about Kerson’s decision to file suit but “has been working to remove” the mural. According to an Oct. 26 email from McHenry, the removal process had faced some delays due to the COVID-19 pandemic.

VARA, passed by the United States Congress in 1990, grants visual artists protections and rights over their works and is intended “to prevent any destruction of a work of recognized stature.” Section 106A(a)(3) gives an artwork’s creator 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 states that “any intentional distortion, mutilation, or modification…or grossly negligent destruction of that work is a violation of that right.”

“If the owner of a building wishes to remove a work of visual art which is a part of such building and which can be removed from the building without the destruction, distortion, mutilation, or other modification of the work as described in section 106A(a)(3),” the artist’s rights under VARA will prevail in almost all circumstances. Exceptions, provided in § 113(d), include: when “the owner [of the building] has made a diligent, good faith attempt without success to notify the author of the owner’s intended action affecting the work,” or when “the owner did provide such notice in writing and the person so notified failed, within 90 days after receiving such notice, either to remove the work or to pay for its removal.” A good-faith attempt to provide notice is satisfied under the act if the notice was sent to the artist’s most recent address as recorded with the Register of Copyrights.

One of Kerson’s other murals also received some criticism in the past. The mural, “Columbus at the Gates of Paradise,” was located in the Skylight Conference room in Vermont’s Human Service Agency in Waterbury, VT. The Waterbury mural contained images of topless and semi-nude Indigenous women. Following criticism, it was occasionally covered by a curtain until being removed after Tropical Storm Irene damaged the building in 2011, according to the Burlington Free Press.

Vice Dean for Students & VLS Professor Beth McCormack announced in a Nov. 3 email that the school plans to hold some 1L classes in person next semester under a hybrid model. The classes would be held in Chase, the large hall in which the mural is located, to best comply with social distancing and CDC protocols, according to McCormack. “The continued display of the mural is offensive to members of our community and we will continue to pursue its removal,” wrote McHenry in his Dec. 3 email. “In the meantime, the mural will be covered until the Court has resolved this matter.”

Davis and Urbanowski declined to comment on the complaint at this time as the matter is going to court.

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