Vermont Law & Graduate School and Artists’ Moral Rights

I confess that, when I blog here, I tend to focus on tax issues related to nonprofit and tax-exempt organizations; after all, my primary area of expertise is the tax law. And tax law issues that affect nonprofits are both fascinating and nearly endless.

But the tax law (and, for that matter, state nonprofit laws) are not the only laws that touch nonprofits and tax-exempts. So today, with the beginning of a new semester at Loyola (and, I assume, many other law schools), let’s look at nonprofits and the Visual Artists Rights Act of 1990 (“VARA”).

In 1993, the Vermont Law School, a tax-exempt educational institution, commissioned artist Sam Kerson to paint two murals that depicted Vermont’s role in the Underground Railroad. Kerson painted his murals (each measuring 8 feet by 24 feet) directly on the drywall of the school’s Jonathan B. Chase Community Center.

The murals have, over their time at the law school, been controversial, with members of the VLS community pointing out that the depictions of Black people resemble cartoonish and racist stereotypes; as early as 2013, the school’s diversity committee has thought about removing them. The school was galvanized in 2020, though, after the police killed George Floyd. Originally, it was going to paint over the murals. Then, it seems, it learned about VARA, which, among other things, proscribes the destruction or modification of an artist’s work (without their consent) during the artist’s lifetime.

The school determined that it couldn’t remove the murals–again, which were painted on the drywall–without disfiguring it. So ultimately the school covered the murals with wood and acoustical panels, ensuring that they did not touch the murals and left about an inch of space between the murals and the frame for the acoustical panels.

Kerson sued, claiming that covering his murals represented the destruction or another prohibited distortion of his artwork. The district court disagreed, so he appealed. An on Friday, the Second Circuit upheld the district court’s decision. Covering a work of art, it held, does not represent its destruction or modification under VARA.

Now, I have no idea whether the Second Circuit’s opinion rests on solid legal ground. Today is the first I’ve heard of VARA. But, while VLS won, the decision is an important reminder that nonprofits have to look beyond tax and nonprofit law; as they interact with the world at large, they’re subject to most of the same laws that apply to everybody else.

Samuel D. Brunson 

Photo by Ɱ. CC BY-SA 4.0