UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2022

(Argued: January 27, 2023 Decided: August 18, 2023)

No. 21-2904

––––––––––––––––––––––––––––––––––––

SAMUEL KERSON

Plaintiff-Appellant,

-v.-

VERMONT LAW SCHOOL, INC.

Defendant-Appellee.

–––––––––––––––––––––––––––––––––––– Before: LIVINGSTON, Chief Judge, CABRANES, Circuit Judge, and KOVNER, District Judge. *

Plaintiff-Appellant Samuel Kerson 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. Kerson brought suit against the law school, alleging that

Judge Rachel P. Kovner of the United States District Court for the Eastern District * of New York, sitting by designation.

1 obscuring his work behind a permanent barrier violated his rights under the Visual Artists Rights Act of 1990 (“VARA”), which creates a cause of action for artists to prevent the modification and, in certain instances, destruction of works of visual art. But 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. Accordingly, the judgment of the United States District Court for the District of Vermont (Crawford, J.) granting summary judgment to the law school is AFFIRMED. FOR PLAINTIFF-APPELLANT: STEVEN J. HYMAN (Oliver R. Chernin, on the brief), McLaughlin & Stern, LLP, New York NY.

Richard I. Rubin, on the brief, Rubin, Kidney, Myer & Vincent, Barre, VT. FOR DEFENDANT-APPELLEE: JUSTIN B. BARNARD (Karen McAndrew, on the brief), Dinse P.C., Burlington, VT.

(Lia N. Ernst, ACLU Foundation of Vermont, Montpelier, VT, for American Civil Liberties Union of Vermont, as amicus curiae) DEBRA ANN LIVINGSTON, Chief Judge:

In 1993, Plaintiff-Appellant Samuel Kerson (“Kerson”) painted two large murals (the “Murals”), together entitled The Underground Railroad, Vermont and the Fugitive Slave, directly onto the sheet rock walls inside a building on the campus of Defendant-Appellant Vermont Law School, Inc. (“VLS” or the “Law School”). The work commemorates Vermont’s role in the Underground Railroad, depicting

2 scenes from the United States’ sordid history with slavery and Vermont’s participation in the abolitionist movement. Responding to concerns within the Law School community that the Murals’ depiction of this history was, in fact, offensive, the Law School informed Kerson in 2020 of its intent to erect a wall of fabric-cushioned acoustic panels, which would permanently conceal the Murals from public view. Kerson objected and filed suit to enjoin the Law School from following through with this plan on the grounds that ensconcing the Murals behind a wall violated his rights under the Visual Artists Rights Act of 1990 (“VARA”), Pub. L. No. 101-650 (tit. VI), 104 Stat. 5089, 5128–33 (codified in scattered sections of 17 U.S.C