VLS hosts panel & hearing for mural case, judge grants VLS’ Motion for Summary Judgment

By Lorentz Hansen, Copy Editor

On Friday, Oct. 8, Geoffrey W. Crawford, Chief Judge for the United States District Court District of Vermont, heard arguments in Vermont Law School’s court room on the school’s motion for summary judgment in Kerson v. Vermont Law School. In advance of the hearing, Vermont Law School (VLS) held a panel on Thursday, Sept. 30 to inform students about the statute at issue, the Visual Artists Rights Act (VARA) and the history behind the case. Jameson Davis (MELP ’18, JD ’21) and April Urbanowski (JD ’21), who spearheaded the recent movement to remove the mural in question, returned to campus for the panel, while Karen McAndrew, one of the school’s attorneys in the case from Burlington firm Dinse, joined virtually. 

VLS Interim President and Dean Beth McCormack moderated the panel in the School’s Chase Center, where the stairs to the second floor, where the mural is painted, are currently roped off. The panel was intended to provide some background to students who may be unfamiliar with the mural, Davis and Urbanowski’s efforts to remove the mural, Kerson’s subsequent lawsuit, and what the school is permitted to do according to VARA. After brief introductions, Davis and Urbanowski opened the discussion by sharing their first encounters with the mural and how they became involved with the push to remove it.

Davis remarked that he had previously raised his feelings about the mural with Dean Shirley Jefferson when Davis was a Master’s student applying to the JD program. After their discussion, however, he decided to table the issue because he wanted to focus on his grades and didn’t want to “rock the boat” while applying to the school’s JD program. After beginning the JD program, Davis and Urbanowski, who had become friends through classes and their work co-founding the school’s Environmental Justice Law Society, got to talking about the mural one day and shared their concerns.

Neither Davis nor Urbanowski visited VLS’ campus before enrolling; both encountered the mural for the first time once they arrived for classes. When asked if seeing the mural would have affected their decisions to attend Vermont Law School, both responded that it would have been a factor, especially depending on how any school representatives would have responded to questions about the mural and why it was at VLS.

Davis described his first encounter with the mural. “The first time I saw it, I stood and looked at it for 20 minutes to really take it in,” Davis said. He “couldn’t believe” the mural was at any school. Davis and Urbanowski shared this reaction, saying the contents of the mural fundamentally conflicted with the school’s purported values of diversity and inclusion.

Davis shared several of his observations about the mural, noting that his issues with the mural stemmed not from the fact that it depicts slavery, but mostly from two main features of the work. First, Davis took issue with the way the mural depicts African Americans and Africans as “coon characters and sambos,” caricatures that were once part of minstrel shows. Why, Davis wondered, would VLS have a mural on its campus that depicted African Americans and Africans this way? Second, Davis noted, the white people are painted green in the panels depicting slavery, but they are painted white in the panels depicting life after abolition. “To me that created a feeling of white people not wanting to associate with the wrong of slavery,” Davis said.

Davis and Urbanowski also shared some history of how other students have reacted to the mural over the years, noting that people complained about the mural “as soon as it was put up.” After a 2013 town hall on the mural, said Urbanowski, the school placed plaques below each of the panels to describe what the mural was depicting so that people would have more context when looking at the work.

“2020 was the year the administration and Board stood behind us,” said Urbanowski. Davis noted that he and Urbanowski felt compelled to act in 2020 after George Floyd and several other Black Americans were killed from racially motivated violence and police brutality. “After those who lost their lives, we felt it was time to get momentum going,” said Davis.

In early 2020, Davis reached out to Kerson to let him know that some students were talking about removing the mural, though not everyone wanted it removed. The main argument against taking the mural down was the artist’s intent, which Davis wanted to hear more about from Kerson himself. “[Kerson’s] initial reaction was ‘oh again?,'” said Davis. He and Kerson spoke for nearly two hours during that first phone call, though Davis said he did not find it particularly fruitful.

Karen McAndrew, one of the school’s attorneys in the case, then described the school’s position, the relevant provisions of VARA, what the upcoming hearing would entail, and what the different possible outcomes from the hearing would mean for VLS and the mural. “It is our position that VARA does not prevent us from covering the mural,” McAndrew began. VARA emphasizes the artist’s right to maintain the integrity of the work, McAndrew explained. She also pointed out that this particular case is complicated by the fact that the artwork is actually a part of the building, making it difficult, if not impossible, to remove the work from the premises without destroying it in the process.

For that reason, McAndrew said, the school proposed surrounding the mural with a frame that would be attached the wall bordering the mural, but would not be touching the mural itself. The frame would be “essentially a permanent cover,” she said, “but it is not destroying or mutilating the art,” which is prohibited by VARA. McAndrew then provided more details about the case’s procedural history, the school’s current plans for covering the mural, and the issues that would be discussed at the upcoming hearing.

Then panelists answered audience questions, and concluded with brief remarks. Davis closed by noting, “it’s taken students of color speaking up for years” for this issue to go anywhere. “Continue to hold everyone accountable in terms of the culture of this law school and the kind of law school you want,” he said.

On Friday, Oct. 8, Chief Judge Geoffrey W. Crawford began the hearing by introducing the attorneys and representatives for both parties. Steven Hyman, his wife and fellow attorney Miriam Hyman, and Richard Rubin appeared on behalf of Respondent, artist Sam Kerson. Kerson attended the hearing via Zoom, according to Hyman. Justin Barnard, Karen McAndrew, and VLS Dean Shirley Jefferson appeared on behalf of Petitioner, Vermont Law School. 

Most of the seating was filled, aside from a handful of seats in the front reserved for the press and the public. Several students stood and lined the walls of the room to watch the hearing. Davis and Urbanowski were unable to attend in person due to their work obligations; however, they both said at the panel that they would be joining the hearing through Zoom. 

Each side had 30 minutes to present their arguments. Justin Barnard, of Burlington-based firm Dinse, spoke first on behalf of the moving party, Vermont Law School. Barnard noted the two main issues to be addressed in the hearing. First, whether the plan for a permanent cover for the mural, which would permanently remove the mural from view, in and of itself violates VARA. 

Crawford previously ruled in March that concealment did not rise to the level of “modification or mutilation” that VARA prohibits, and therefore nothing in VARA prevented the School from erecting a permanent cover. The March hearing considered Kerson’s motion for preliminary injunction, which Crawford denied.

Barnard noted that the court did not intend to compel an institution to display something that it did not want to. Second, Barnard addressed whether the plan to install a cover will degrade the mural over time and therefore violate VARA.

Barnard began with several concessions. First, Barnard conceded that the school did not employ “best practices” when crafting its plan for a mural covering. Emily Phillips, who Kerson had evaluate the school’s plan for a mural covering, provided a statement that the permanent acoustic panel covering that the school planned to use may degrade the mural over time. There is a risk, according to Phillips’, but she did not provide any definitive statements or specific conclusions about how the mural might degrade. Barnard conceded to Phillips on this point for the purposes of this hearing, but noted that the school would present evidence on this issue if the case moved forward to trial. For the purposes of the hearing, Barnard also conceded that the mural is a work of recognized stature, which is a necessary element for VARA’s prohibition on destruction of an artwork to apply.

Barnard stated that no court has held that a holder of a work of art must provide protection to ensure that a work would not degrade over time, and there is nothing in the text of the Act that would suggest that. Nothing in the text, argued Barnard, would impose on an institution the obligation to apply a “conservation standard.” Barnard referred to language from VARA’s legislative history showing that Congress chose to exclude from the act language that would have carved out an exception for changes that occurred over time. Barnard referred to a New York case Flack v. Friends of Queen Catherine, Inc., in which mold that developed in a bronze statue did not constitute a violation of VARA on the part of the owner because the mold involved a change that occurred over time due to the nature of the materials. The U.S. District Court for the Southern District of New York stated in that case that “VARA does not provide a means of enjoining or obtaining damages due to modifications resulting from ‘the passage of time or the inherent nature of the materials.’ See 17 U.S.C. § 106A(c) (1). This is true even if the modification is caused by gross negligence.” Flack v. Friends of Queen Catherine, Inc., 139 F. Supp. 2d 526, 534 (S.D.N.Y. 2001).

Barnard raised the question of what level of care a private institution is required to provide to a private artwork. To exemplify this issue, Barnard provided the example of a private person with a painting near a fireplace or near a lot of light, asking if the artist could then sue that private party and say that the holder of the artwork could not put the piece in that location because doing so would damage the work. Barnard said that these situations would not merit a lawsuit because VARA protects against attacks on the artist’s integrity. There are two pathways under VARA for an artist to sue: if the work’s owner breaks up or takes down an artwork, which are not not the kind of processes involved in this case. The only modification prohibited under VARA is that which would be prejudicial to the artist’s reputation or honor. 

Intent matters in this circumstance, argued Barnard. For destruction of an artwork, gross negligence is the standard under VARA, which the school’s conduct does not rise to in this case. The school agreed to put in a moisture and temperature monitor behind the wall. Since there does not seem to be a way to remove the mural without destroying it in the process, the school thought erecting a wall to be a compromise. Barnard referenced a wall that the University of Vermont erected in front of a mural for over 30 years to avoid the cost of removing the piece, noting that this has been done elsewhere. 

Barnard said the school is not required to bring in an art conservator to ensure the art exists for perpetuity. The monitor would be checked from time-to-time to make sure the conditions were okay and to offer a window into what is going on. “We are not required to do that,” Barnard said. It would’ve been acceptable to just put up a wall, but throughout this process the school has wanted to respect Kerson’s needs, he said. 

Steven J. Hyman, of New York-based firm McLaughlin & Stern, LLP, opened his arguments for Respondent Kerson by noting he was “somewhat astonished at the approach” of the school—that VLS “doesn’t deign” to talk about the structure of the statute, but simply engaged in a maneuver to erect a wall, with the philosophy that “if the mural gets destroyed, we could care less.” 

Hyman did not concede that “modification” according to the statute requires destruction. The purpose of this statute, stated Hyman, is not the regulation of art; rather, it is about culture and the preservation of art, about the protection of artists so that we can further the cultural history in this country. The statute is concerned with what is happening to the art in relation to the artist, and artists play a very important role of capturing a moment in time for future generations, Hyman said. Hyman quoted Senator Ed Markey’s comments from VARA’s passing: “it is often through art that we’re able to see truths both beautiful and ugly.” 

Hyman focused on how the school’s actions have affected Kerson. The definition of honor and reputation as concerns this statute focus on professional honor or reputation of the individual—it need not be analogous to defamation, said Hyman. That definition of honor must be subjective according to the trier of fact. The school asked Kerson to paint the mural, “and now what are they doing? Covering and permanently preventing the mural from being seen,” said Hyman. The school is essentially saying that Kerson is “a bad person, a terrible artist,” Hyman said. 

“That’s a little over the top, don’t you think?” asked Chief Judge Crawford.

Yes and no, responded Hyman, arguing it says a lot about the art that the school doesn’t want it seen. 

Chief Judge Crawford posed a hypothetical, asking: if VLS has hired the best conservator, “fit for the last supper,” could the school still not cover the mural? Hyman responded that covering the mural would still violate VARA, even in that circumstance. What if the school sought to cover an oil painting that could be moved, asked Chief Judge Crawford. To which Hyman responded that a moveable piece of visual art is a different situation.

The school could have obtained a waiver under VARA § 113(d)(1), Hyman said. “I’m in a law school and they didn’t know the law,” Hyman said. Chief Judge Crawford responded that the statute (passed in 1990) was relatively new at the time the mural was painted (in 1993), and it was not common knowledge at the time; therefore, it was not unreasonable that the school did not obtain a waiver under VARA. “I’d never heard of VARA until this case,” conceded Chief Judge Crawford.  

Hyman stated that the law school and moving parties “have made no effort to try to find a way that would work with Sam.” 

Hyman argued that erecting a wall in and of itself harms Kerson’s reputation. Hyman then went on to suggest erecting a glass or plastic wall instead, to which Chief Judge Crawford responded, “there’s an expert who would say that’s harmful.” Hyman responded that he wanted to point out that there are other ways of covering the wall that would prevent vandalism. “But we don’t have to play pretend,” he said, the purpose of the wall is to hide the mural from view. 

The school is creating the environment with the intention of the art not being seen and once it’s not seen it’s no longer an issue, said Hyman. Hyman stated that he could not see how that sits with the purpose of the statute, as Congress understood that time factors in in terms of damage over time, but creating the environment in which the damage occurs is not. Based on Phillips’ statement, Hyman said, it is more likely than not that the wall would damage the mural. Chief Judge Crawford paused and noted that Phillips’ statement may not even be admissible at trial, noting that Phillips was an unpaid volunteer and that she does not actually know what will happen to the mural. The court wouldn’t accept the same kind of statement from a mechanic as admissible evidence at trial, he said. “How can we have something so thin driving the case?”

Hyman responded that they could get more statements to support that at trial, to which Chief Judge Crawford responded: “Now is the time. You can’t tell me she’ll say more then.” This critique was not to criticize Phillips, Chief Judge Crawford noted, but Phillips’ statement amounts to “pretty close to nothing.” Hyman responded that the court could not ignore what Phillips said, the court has not disputed that she’s an expert, and that they have sufficient material to move forward here. 

In his rebuttal, Barnard began, “as best as I can tell, the line between when the wall is permissible in one place or the other is intent.” Barnard described Respondents desired outcome—requiring a private party to continue to display a piece of art—as “problematic.” Barnard alluded to constitutional issues that they could have going forward regarding this issue, but noted that they did not raise the issues because of the doctrine of constitutional avoidance, according to which a court should avoid delving into issues involving the constitution if a case can be solved without addressing those issues.

A private institution determined in this case that keeping this piece in view is in conflict with its values, and it is entitled to no longer display this mural. It is true that murals are treated differently, but if anything, with walls, the act is more solicitous of the private institution, Barnard said. The piece of art being a mural rather than a moveable painting doesn’t change their rights to determine whether to display the piece, he said.

Barnard referred to Chief Judge Crawford’s previous ruling in this case, in which he noted that “when a child is playing hide and seek they don’t ‘modify’ themselves from view.” Case law says that removing a work from view does not violate VARA, Barnard said. Barnard also clarified, “it is absolutely not our position that putting up a wall is prejudicial to his reputation.” “It may indicate how VLS feels, but that doesn’t rise to the level of a violation of VARA.” 

Chief Judge Crawford thanked both sides for their arguments, saying the hearing was “super helpful.” The four attorneys and Chief Judge Crawford stayed after the hearing for a question-and-answer session with attendees. 

On Wednesday, Oct. 20, 2021, Chief Judge Crawford ruled in favor of Vermont Law School, granting the school’s Motion for Summary Judgment.

In an email to the VLS community, Interim Dean and President Beth McCormack wrote, “[a]lthough it is expected that the plaintiff will appeal, our counsel suggests that Judge Crawford crafted a fairly strong opinion providing a thorough treatment of the issues, which should help in securing affirmance on appeal.”

For past coverage of this issue by The Forum, see:

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