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Vermont Law School has been knee deep in legal controversy over a mural for almost two years now. Legally speaking, there was a simple question: does the Visual Artists Rights Act prevent covering up an artist’s work? The messy bit comes from the intent and reception of the artwork. Sam Kerson created a mural that celebrated Vermont’s participation in the Underground Railroad. Unfortunately for him, several students and faculty members of Vermont Law didn’t think that the intent of the mural made up for an art style that they claim, among other things, depicted Black people as Sambos. The Second Circuit has issued a ruling, and it ain’t in Kerson’s favor. From the ABA Journal:
Murals that are deemed to be “offensive” can be covered up, despite an artist’s objections that such actions violate their rights, according to a ruling by the 2nd U.S. Circuit Court of Appeals at New York.
For the curious, said rights include the right to prevent distortions, mutilations, or modifications of an artwork that may impact the artist’s honor or reputation. Carrying on…
In an Aug. 18 opinion, the federal appeals court held that “merely ensconcing a work of art behind a barrier neither modifies nor destroys the work, as contemplated by [the Visual Artists Rights Act].”
…
“Authors of qualifying works of visual art may invoke VARA to prevent the modification and destruction of their art, albeit with some exceptions. But hiding the murals behind a barrier neither modifies nor destroys them and, therefore, does not violate VARA,” the 2nd Circuit said, in affirming the lower court.
And with that, it looks like the abolitionist mural will be locked behind a covering.
Personally, I don’t think that the mural is offensive. Sure, there are some distortions and less-than realistic skin coloration, but you should consider the style of art that the piece was done in when you’re making your aesthetic assessments. It would be easy for someone to look at The Sugar Shack and complain that the Black figures are hypersexualized, lanky, and have spines that would even make comic artists wince at the abuses of physiology, but they’d also be missing the point. Ernie Barnes’s painting is jazz incarnate — he was going for vibrancy and affect, not realism. Far from subtracting from the message, the spiny figures and exaggerated gestures capture the rapture of people letting loose in a North Carolina dance hall precisely because of the departure from a strict commitment to realistic figures. Looking at Kerson’s mural and factoring in its abolitionist bent, I’m inclined to forgive that the slave owners that are being put to death have sickly green skin.
I’m also quick to realize that I have no real skin in the game! Unlike the faculty and students of Vermont Law, I do not have to spend my days walking to and from class with the damned thing in my line of vision. Whether it’s a statue of Columbus or a school changing its name after discovering its namesake may have dabbled in hunting Natives for sport, the decisions, who makes them, and how they are implemented should center the people who are directly involved with the art and related history at hand.
So, before this gets blown up as some generalized conflict about campus free speech and wokeness gone rampant, I’d like the commend the students and faculty at Vermont Law that put the work in to change the community for their perceived better. And, if the tides change and people begin to think differently about the mural, they could always take the covers down!
…They may also ultimately be forced to. Kerson’s attorney, Steve Hyman, doesn’t seem very happy with the Second Circuit’s decision. From Law and Crime:
“The very purpose of VARA was to preserve, protect art and to prevent changes to the art that would prejudice the honor and integrity of the artist,” Hyman said. “Permanently entombing murals over 8′ x 24′ that cannot be moved and can never be seen again is contrary to what Congress clearly intended in enacting the statute.”
Hyman said he was considering all options going forward.
As it stands, Kerson is that guy whose racist-ass mural at Vermont Law School got covered up — I get why he’d want to appeal this outcome. While few cases make it to the Supreme Court, I, for one, would love to see how the justices break on the issue of an artist’s honor and reputation with regard to their work. Especially Kagan and Sotomayor.
‘Offensive’ Murals Can Be Covered, Despite Federal Law Protecting Artists, 2nd Circuit Says [ABA Journal]
Muralist Who Depicted Enslaved People As ‘Cartoonish, Almost Animalistic’ Loses Lawsuit [Law And Crime]
Earlier: Temporary Win For Vermont Law School’s Right To Veil
Hyperallergic Has Sneezing Fit Over Black Art
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.
“They were not just happy to be there,” said Dalen Cuff, who called Vermont’s 2-1 overtime victory over Marshall on ESPN2 last Monday night. “They felt like a team on a mission and they were. Their mind-set was, ‘We will be forgotten if we don’t win the whole thing.’ I think they were just very salient in the fact that if we win the whole thing, then we hit legendary status. And they were right.”
So when the Catamounts achieved what might have been a stunning outcome to just about everyone outside of their own locker room, prevailing on Max Kissel’s golden goal in the 95th minute, Cuff’s exceptional call included acknowledging the Catamounts’ own we’ve-got-this, no-glass-slipper-necessary mentality.
“Oh my gosh! They do it!” exclaimed Cuff as Kissel’s goal rolled toward the net. “Don’t call them Cinderella! You can call them national champs!”
Vermont’s victory and how it occurred made the Catamounts an instant social media sensation, and the buzz carried through much of the week. On Tuesday, the match drove conversation on such shows as ESPN’s “Around The Horn,” where host Tony Reali declared it the best sporting event of the year.
I told Cuff – whom locals may remember from his time at Comcast SportsNet New England nearly a decade ago — that watching the end of the championship match reminded me of what it felt like when Doug Flutie’s Hail Mary found Gerard Phelan to lift Boston College over Miami in November 1984.
“It’s funny you mention the Flutie thing,” said Cuff, who has called four NCAA men’s soccer finals for ESPN. “When I grew up, I had the VHS tape, ‘Great Sports Moments of the ‘80s.’ One of them was the Flutie play, with the radio call: ‘He did it! He did it! Flutie did it’!
“I never thought I’d be the voice of any type of unforgettable moment, especially since I started my career as an analyst.
“I’ve heard people like Al Michaels or Mike Tirico or Joe Buck talk about when you’re calling something that has a chance to be an incredible moment, or when you’re calling a championship, ‘Do you think about it in advance? Do you rehearse?’ The weird thing is, I don’t think you can in soccer, where one moment that can define the game can happen at any time.”
Cuff said he just instinctively went with what was already on his mind.
“And what was on my mind was that they found it practically offensive to be called Cinderella,” he said. “Their point of view was, ‘We’ve won more games than anybody in this tournament the last few years. We know we’re a small school from America East, but we’re not Cinderella.’
“So we mentioned that during the broadcast a couple of times, and so in the moment I communicated that they’ll never be considered Cinderella again. Just call them champs.”
Cuff acknowledged that he didn’t quite grasp how much the championship match and Vermont’s team was resonating with sports fans until the next day.
“I walked out of there in kind of a stupor,” he said. “Not that they won, but more like, ‘I can’t believe that happened.’ The way it went down. I was kind of dumbfounded for a couple of hours, and I don’t think I understood the response and how many people watched and appreciated what they’d seen. I realized Tuesday with all of the talk about the game and people texting me how much people gravitated toward this.”
The championship aired on ESPN2 in the spot in which the “ManningCast” would normally be on as the alternate broadcast of “Monday Night Football.” But there was no show last Monday.
“Shout out to the Manning brothers for taking the week off,” said Cuff with a laugh. “Thank you for that. I’m sure some people tuned in thinking the ‘ManningCast’ was on, stuck around, and got this unbelievable game.
“I do think where it’s on television matters. It was on ESPN2 for the first time since I’ve been calling it. I think random people stumbled across the game. I recognized that part instantly. When you walk into a bar, ESPN is likely on TV. ESPNU is not likely to be on. So the platform made a difference.”
…
Jim Donaldson, an important member of an outstanding Providence Journal sports section for nearly four decades, died Thursday morning at age 73. Donaldson never smoothed the edges of his opinions as a writer, particularly when it came to the Patriots, and was a friendly companion in the press box. I enjoyed his wry sense of humor as a frequent weekend host on WEEI back in the late ‘90s and early 2000s. Even after his retirement in 2016, he remained an engaging — and opinionated, of course — presence on social media. I’ll miss hearing from him . . . Expect the Red Sox to announce their broadcast booths for both NESN and WEEI at Fenway Fest — an even kinder, gentler version of Winter Weekend, apparently on Saturday, Jan. 11. Dave O’Brien (NESN) and Will Flemming (WEEI) will remain in their play-by-play roles, but some other specifics are still being worked out.
Chad Finn can be reached at chad.finn@globe.com. Follow him @GlobeChadFinn.
Media
The University of Vermont men’s soccer team — excuse me, make that the national champion University of Vermont men’s soccer team — was undeniably an underdog along its now-storied journey.
The Catamounts were ranked No. 17 and unseeded entering the NCAA Tournament. Even as an exceptional America East program, they don’t have the resources to match the big programs from the Big Ten and Atlantic Coast Conference.
Underdog? Accurate assessment. Just don’t tell the Catamounts themselves that they were a Cinderella story, as if their success required some sort of fairy-tale caliber intervention. For one thing, Cinderella doesn’t wear flannel, as the Vermont players were prone to do when they took the field for warm-ups. For another, they were certain they could beat anyone, even while the final chapters of its extraordinary and ultimately fulfilled quest were still being written.
“They were not just happy to be there,” said Dalen Cuff, who called Vermont’s 2-1 overtime victory over Marshall on ESPN2 last Monday night. “They felt like a team on a mission and they were. Their mind-set was, ‘We will be forgotten if we don’t win the whole thing.’ I think they were just very salient in the fact that if we win the whole thing, then we hit legendary status. And they were right.”
So when the Catamounts achieved what might have been a stunning outcome to just about everyone outside of their own locker room, prevailing on Max Kissel’s golden goal in the 95th minute, Cuff’s exceptional call included acknowledging the Catamounts’ own we’ve-got-this, no-glass-slipper-necessary mentality.
“Oh my gosh! They do it!” exclaimed Cuff as Kissel’s goal rolled toward the net. “Don’t call them Cinderella! You can call them national champs!”
Vermont’s victory and how it occurred made the Catamounts an instant social media sensation, and the buzz carried through much of the week. On Tuesday, the match drove conversation on such shows as ESPN’s “Around The Horn,” where host Tony Reali declared it the best sporting event of the year.
I told Cuff – whom locals may remember from his time at Comcast SportsNet New England nearly a decade ago — that watching the end of the championship match reminded me of what it felt like when Doug Flutie’s Hail Mary found Gerard Phelan to lift Boston College over Miami in November 1984.
“It’s funny you mention the Flutie thing,” said Cuff, who has called four NCAA men’s soccer finals for ESPN. “When I grew up, I had the VHS tape, ‘Great Sports Moments of the ‘80s.’ One of them was the Flutie play, with the radio call: ‘He did it! He did it! Flutie did it’!
“I never thought I’d be the voice of any type of unforgettable moment, especially since I started my career as an analyst.
“I’ve heard people like Al Michaels or Mike Tirico or Joe Buck talk about when you’re calling something that has a chance to be an incredible moment, or when you’re calling a championship, ‘Do you think about it in advance? Do you rehearse?’ The weird thing is, I don’t think you can in soccer, where one moment that can define the game can happen at any time.”
Cuff said he just instinctively went with what was already on his mind.
“And what was on my mind was that they found it practically offensive to be called Cinderella,” he said. “Their point of view was, ‘We’ve won more games than anybody in this tournament the last few years. We know we’re a small school from America East, but we’re not Cinderella.’
“So we mentioned that during the broadcast a couple of times, and so in the moment I communicated that they’ll never be considered Cinderella again. Just call them champs.”
Cuff acknowledged that he didn’t quite grasp how much the championship match and Vermont’s team was resonating with sports fans until the next day.
“I walked out of there in kind of a stupor,” he said. “Not that they won, but more like, ‘I can’t believe that happened.’ The way it went down. I was kind of dumbfounded for a couple of hours, and I don’t think I understood the response and how many people watched and appreciated what they’d seen. I realized Tuesday with all of the talk about the game and people texting me how much people gravitated toward this.”
The championship aired on ESPN2 in the spot in which the “ManningCast” would normally be on as the alternate broadcast of “Monday Night Football.” But there was no show last Monday.
“Shout out to the Manning brothers for taking the week off,” said Cuff with a laugh. “Thank you for that. I’m sure some people tuned in thinking the ‘ManningCast’ was on, stuck around, and got this unbelievable game.
“I do think where it’s on television matters. It was on ESPN2 for the first time since I’ve been calling it. I think random people stumbled across the game. I recognized that part instantly. When you walk into a bar, ESPN is likely on TV. ESPNU is not likely to be on. So the platform made a difference.”
…
Jim Donaldson, an important member of an outstanding Providence Journal sports section for nearly four decades, died Thursday morning at age 73. Donaldson never smoothed the edges of his opinions as a writer, particularly when it came to the Patriots, and was a friendly companion in the press box. I enjoyed his wry sense of humor as a frequent weekend host on WEEI back in the late ‘90s and early 2000s. Even after his retirement in 2016, he remained an engaging — and opinionated, of course — presence on social media. I’ll miss hearing from him . . . Expect the Red Sox to announce their broadcast booths for both NESN and WEEI at Fenway Fest — an even kinder, gentler version of Winter Weekend, apparently on Saturday, Jan. 11. Dave O’Brien (NESN) and Will Flemming (WEEI) will remain in their play-by-play roles, but some other specifics are still being worked out.
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UVM men’s soccer celebrates National Championship with home fans
The 2024 D-I men’s soccer National Champions, Vermont returned home to celebrate the first title in program and school history with fans.
How did University of Vermont men’s and women’s basketball teams fare during its final games before the holiday break? Read below for schedule, scores and stats from the Catamount basketball programs.
Vermont at Princeton, noon
Vermont at Dartmouth, noon
Contact Alex Abrami at aabrami@freepressmedia.com. Follow him on X, formerly known as Twitter: @aabrami5.
Contact Judith Altneu at jaltneu@gannett.com. Follow her on X, formerly known as Twitter: @Judith_Altneu.
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