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Second Circuit Review: Permanent Concealment And the Visual Artist Rights Act of 1990

October 25, 2023

Litigation of counsel Martin Flumenbaum and firm Chairman Brad Karp’s latest Second Circuit Review column, “Permanent Concealment And the Visual Artist Rights Act of 1990,” appeared in the October 25 issue of the New York Law Journal. The authors discuss the Second Circuit’s decision in Kerson v. Vermont Law School, in which the court considered whether the permanent concealment of controversial murals violated the mural creator’s rights under the Visual Artists Rights Act of 1990 (VARA) to prevent the intentional modification of his work. In 1993, visual artist Samuel Kerson painted certain murals that commemorate Vermont’s role in the Underground Railroad. The murals subsequently attracted criticism for their “cartoonish” depiction of enslaved African people, leading the law school to permanently conceal them by installing solid acoustic panels in front of them. The Second Circuit unanimously held that the permanent concealment of the murals did not violate the mural creator’s rights under VARA, because the concealment did not constitute modifying or destroying the murals. The decision could embolden public and private property owners to conceal controversial or disliked art without the consent of the artist, heightening debates over the rights of artists, freedom of expression and the public’s role in shaping its collective visual landscape. Litigation associate Alexander Beer assisted in the preparation of this column.

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