Kerson v. Vermont Law School, Inc., No. 21-2904 (2d Cir. 2023)
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Plaintiff painted two large murals directly onto the walls inside a building on the campus of Defendant-Appellee Vermont Law School, Inc. The work stirred controversy, which eventually prompted the law school to erect a wall of acoustic panels around the murals to permanently conceal them from public view. Plaintiff brought suit against the law school, alleging that obscuring his work behind a permanent barrier violated his rights under the Visual Artists Rights Act of 1990 (“VARA”). The district court denied Plaintiff's motion for a preliminary injunction, concluding that he had failed to establish a likelihood of success on his VARA claim. Further, the court held that VARA does not prohibit the permanent concealment of a work of art, absent any physical change to the work itself.
The Second Circuit affirmed. The court held that merely ensconcing a work of art behind a barrier neither modifies nor destroys the work, as contemplated by VARA and thus does not implicate VARA’s protections. The court explained that this case presents weighty concerns that pin an artist’s moral right to maintain the integrity of artwork against a private entity’s control over the art in its possession. On the facts presented here, the court resolved this tension by hewing to the statutory text, which reflects Congress’s conscientious balancing of the competing interests at stake. Because mere concealment of the Murals neither “modifies” nor “destroys” them, the Law School has not violated any of VARA’s prohibitions. As such, VARA does not entitle Plaintiff to an order directing the Law School to take the barrier down and continue to display the Murals.
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