Attorney Steve® - VARA Copyright Legal Updates - Vermont Law School accused of obscuring underground railroad murals. Contact us if you are involved in VARA litigation at (877) 276-5084
Here is one of the murals at issue in the Vermont Law School ("VLS") case. Vermont tried to obscure the view after getting complaints. The artist then sued for an alleged violation of his rights under V.A.R.A.
Introduction
Here is the preamble to the initial complaint filed in the United States District Court - District of Vermont in 2021.
This action arises under the Visual Artist Rights Act (VARA), 17 U.S.C. § 106A, et seq. and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. This claim arises from VLS's stated plan to destroy, distort, mutilate, or otherwise modify two murals, each 8' x 28', entitled Vermont, The Underground Railroad, and Vermont and the Fugitive Slave (the "Murals"). The murals were painted in 1994 by Mr. Kerson on two walls in Chase Hall, a building located on the VLS campus in South Royalton, Vermont, and have been on display there since then.
The murals, which depict Vermont's efforts to help slaves seeking freedom in the years before the Civil War, achieved nationwide recognition. Notwithstanding such recognition, in July of 2020, VLS announced that because of some complaints by students, who apparently. found the murals "offensive", it was going to paint over the murals.
When Kerson learned of this, he advised VLS that he did not consent to the destruction of his art and asserted his rights under VARA. Nevertheless, VLS, purporting to give notice to Kerson to remove his art, has informed Kerson that it intends to permanently cover the murals with acoustic tiles.
The Visual Artists Rights Act of 1990 (VARA), however, protects the rights of artists like Kerson, safeguarding their works from "distortion, mutilation, or other modification... which would be prejudicial to [their] honor or reputation." 17 U.S.C. § 106A(a)(3)(a).
It further protects works of "recognized stature"—including murals in buildings in particular—from intentional or negligent "destruction." Id. § 106A(a)(3)(B). Defendant's plans threaten Kerson's rights under VARA. To protect the Murals from mutilation or destruction, and thereby to ensure the future of one of his most significant achievements, Kerson brings this action for declaratory and injunctive relief.
What is VARA? Text of the Law
17 U.S. Code § 106A - Rights of certain authors to attribution and integrity
(a) Rights of Attribution and Integrity.—Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art—
(1) shall have the right—
(A) to claim authorship of that work,
and
(B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;
(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation;
and
(3) subject to the limitations set forth in section 113(d), shall have the right—
(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right,
and
(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.
(b) Scope and Exercise of Rights.— Only the author of a work of visual art has the rights conferred by subsection (a) in that work, whether or not the author is the copyright owner. The authors of a joint work of visual art are co-owners of the rights conferred by subsection (a) in that work.
(c) Exceptions.—
(1) The modification of a work of visual art which is a result of the passage of time or the inherent nature of the materials is not a distortion, mutilation, or other modification described in subsection (a)(3)(A).
(2) The modification of a work of visual art which is the result of conservation, or of the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification described in subsection (a)(3) unless the modification is caused by gross negligence.
(3) The rights described in paragraphs (1) and (2) of subsection (a) shall not apply to any reproduction, depiction, portrayal, or other use of a work in, upon, or in any connection with any item described in subparagraph (A) or (B) of the definition of “work of visual art” in section 101, and any such reproduction, depiction, portrayal, or other use of a work is not a destruction, distortion, mutilation, or other modification described in paragraph (3) of subsection (a).
(d) Duration of Rights.—
(1) With respect to works of visual art created on or after the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, the rights conferred by subsection (a) shall endure for a term consisting of the life of the author.
(2) With respect to works of visual art created before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, but title to which has not, as of such effective date, been transferred from the author, the rights conferred by subsection (a) shall be coextensive with, and shall expire at the same time as, the rights conferred by section 106.
(3) In the case of a joint work prepared by two or more authors, the rights conferred by subsection (a) shall endure for a term consisting of the life of the last surviving author.
(4) All terms of the rights conferred by subsection (a) run to the end of the calendar year in which they would otherwise expire.
(e) Transfer and Waiver.—
(1) The rights conferred by subsection (a) may not be transferred, but those rights may be waived if the author expressly agrees to such waiver in a written instrument signed by the author. Such instrument shall specifically identify the work and uses of that work to which the waiver applies, and the waiver shall apply only to the work and uses so identified. In the case of a joint work prepared by two or more authors, a waiver of rights under this paragraph made by one such author waives such rights for all such authors.
(2) Ownership of the rights conferred by subsection (a) with respect to a work of visual art is distinct from ownership of any copy of that work, of a copyright, or any exclusive right under a copyright in that work. Transfer of ownership of any copy of a work of visual art, or of a copyright or any exclusive right under a copyright shall not constitute a waiver of the rights conferred by subsection
(a). Except as may otherwise be agreed by the author in a written instrument signed by the author, a waiver of the rights conferred by subsection (a) with respect to a work of visual art shall not constitute a transfer of ownership of any copy of that work, or of ownership of a copyright, or of any exclusive right under a copyright in that work.
Case allegations
Here are some of the allegations made in the Complaint filed by the artist against VLS:
Congress passed the Visual Artist Rights Act (VARA) in 1990 as an amendment to the Copyright Act.
VARA extends to visual artists the legal protection of their moral rights of attribution and integrity. 17 U.S.C. § 106A.
It defines a work of visual art as "a painting, drawing, print, or sculpture, existing in a single copy" or "in a limited edition of 200 copies or fewer." Id. § 101.
Since 1990, artists have had the right to protect their works from "any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation." Id.§ 106A(a)(3)(A).
Works of "recognized stature" are further protected from "destruction," whether "intentional or grossly negligent." Id.§ 106A(a)(3)(B).
The Act's protection expressly extends to permanent murals—that is, to works of recognized stature that have been "incorporated in or made part of a building in such a way that removing the work from the building will cause the destruction, distortion, mutilation, or other modification of the work." Id. § 113(d)(1)(A).
For murals incorporated in or made part of a building after VARA's enactment in 1990, this protection shall apply unless the artist and the building owner have executed a "written instrument" that "specifies that installation of the work may be subject to destruction, distortion, mutilation, or other modification, by reason of its removal." Id. § 113 (d)(l )(B).
Additional allegations
Kerson is a well-regarded multi-disciplinary visual artist, whose work has been displayed world-wide. Collections of Kerson's works have been acquired by such esteemed institutions as the Library of Congress, the National Archives of Canada, the New York Public Library and numerous college and university libraries.
During his career, now spanning over 50 years, Kerson has created and exhibited numerous works of visual art, co-founded the Dragon Dance Theatre, and served as Artist in Residence in institutions located in Europe.
Kerson has achieved particular recognition in creating murals. In addition to the Murals at issue in this action, Kerson's murals had been displayed in the Vermont State Human Services Building and in Masaya, Nicaragua. In addition, his paintings were displayed in a curated art exhibit in the halls of the Vermont Supreme Court.
Kerson's works, including the Murals, are the subject of, or included, in artist books and portfolios, maintained in the collection of libraries in the United States, Canada, and Europe, including the British Library, London and the Bibliotheque Nationale de France, Paris.
Kerson was the winner of the 2016 Rene Caccan Public Prize, Belgium.
Currently, Kerson is finalizing the sale of two of his acrylic paintings to the city of Trois-Rivieres, Quebec, Canada. One of these paintings refers to the current Underground Railroad in France
In 1993, Kerson conceived of the idea of creating two murals commemorating Vermont and its participation with the Underground Railroad helping slaves fleeing from the South.
In March of 1993, VLS determined to have the murals placed in Chase Hall of its campus. VLS wrote to Kerson We are delighted that you have chosen VLS as the site for your mural, The Underground Railroad, Vermont and the Fugitive Slave. We agree that the mural will be painted on the walls of the upper level of the Jonathan B. Chase Community Center.
Based on this agreement by VLS, Kerson obtained funding for the project from the Puffin Foundation and with the assistance of other artists, working under his supervision, created the Murals.
The Murals were painted with acrylic paint directly onto the sheet rock walls of Chase Hall.
The Murals depict the history of slavery including the capture and shipment of Africans to the Americas, the selling of captured humans in slave markets, the slave's work condition, the suppression of African culture, abolition, resistance to slavery, featuring important historical figures, and the Underground Railroad.
Upon their completion, in or about 1994, VLS publicly announced the display of the Murals and sponsored an opening ceremony celebrating the Murals. Among the attendees of the ceremony was renowned civil rights attorney Florynce Kennedy.
The Murals achieved nationwide recognition. A book entitled The Underground Railroad, Vermont and the Fugitive Slave was published, containing images of scenes depicted in the Murals. The book was purchased by and is part of the collection of the libraries of the University of Arizona, the University of Colorado, the University of Vermont, VLS, St. Michael's College, Dartmouth College, Middlebury College, as well as the New York Public Library, the Boston Public Library, the Newark Public Library, and the Dennos Museum, located on the campus of Northwestern Michigan College.
Since 1994, the Murals have been displayed at Chase Hall.
In early 2020 VLS received complaints from some students about the Murals and, thereafter, determined to destroy the Murals.
In or about the beginning of July 2020, VLS publicly announced that it planned "to paint over" the Murals.
VLS gave no notice to Kerson of its intention to paint over the Murals and he only learned thereof when one of the complaining students contacted Kerson requesting that Kerson join the demand to take down the Murals.
At the time it announced its intention to paint over the Murals, VLS acted in complete ignorance and disregard of Kerson' s rights under VARA.
Thereafter, on August 5, 2020, VLS finally acknowledged the existence of VARA and Kerson's rights thereunder and sent him notice that he had 90 days to remove the Murals and, failing that, VLS would remove or cover the Murals.
During the 90-day period, VLS gave Kerson access to the Murals so that he could inspect them and determine what would be required to remove the Murals and the impact that such undertaking would have on the Murals. As a result of the inspection of the Murals, by carpenters familiar with the hanging and displaying of art, it was determined that the Murals were painted directly onto the sheet rock affixed to the building and incorporated into the walls of Chase Hall in such a manner that any effort to remove them would require disfiguring the Murals and cutting them into sections.
The inspection further determined that any attempt to remove the Murals would cause significant damage to the Murals and destroy, distort, mutilate or otherwise modify them. Thereafter, on or about October 8, 2020, Kerson's counsel advised VLS that removing the Murals would destroy them, and that Kerson could not be required to remove the Murals, and that he did not consent to VLS removing or covering the Murals.
Efforts to find an acceptable resolution by counsel for VLS and Kerson were unsuccessful and, on November 18, 2020, counsel for VLS advised that My understanding is that the current intention [ofVLS] is to cover the murals with acoustical panels that will be firmly affixed to the wall structure.
The Murals are paintings that constitute a "work of visual art" as defined by 17 U.S.C. § 101. Kerson holds a copyright to the Murals, and the work is thus a copyrightable subject matter.
The Murals have been the subject of public acclaim since they were created in 1994 and are therefore works of "recognized stature" under VARA. 17 U.S.C. § 106A(a)(3)(B).
Kerson's reputation as a mural artist, both in Vermont and in the national and world-wide arts community, will be irreparably harmed if his most notable work is distorted, mutilated, modified, or destroyed without his consent. The destruction of the Murals would be "prejudicial" to Kerson's "honor or reputation." 17 U.S.C. § 106A(a)(3)(A).
The Murals have been incorporated into or made a part of Chase Hall, a building on the VLS campus. The Murals were created in or about 1993-1994 after the enactment of VARA and Kerson has not executed or signed any written statement waiving his rights under the Visual Artists Rights Act or allowing his work to be in any manner destroyed, distorted, mutilated, or modified through removal. 17 U.S.C. § 106A(e), § 113(d)(l)(B).
Kerson has the right under 17 U.S.C. § 106A(a)(3) to prevent the destruction, distortion, mutilation, or modification of The Murals. 42. As a work of visual art incorporated in a building, the removal of the Murals would destroy, disfigure, mutilate or otherwise modify the Murals.
VLS cannot remove or cover the Murals in contravention of Kerson's rights under VARA.
VLS has acted, or plans to act, intentionally and in willful disregard of Kerson's rights under VARA.
Because Defendant has threatened and continues to threaten to violate Kerson's rights under VARA, there is an actual controversy between the parties within this Court's jurisdiction and a need for this Court to declare the rights and legal relations of the parties under VARA.
Kerson is entitled to temporary preliminary and injunctive relief barring VLS from removing, covering or destroying, disfiguring, mutilating or otherwise modifying the Murals.
Kerson is entitled to actual and statutory damages to the extent that VLS has destroyed, disfigured, mutilated or otherwise modified the Murals.
REQUEST FOR RELIEF WHEREFORE,
Kerson respectfully requests that this Court:
A. Declare that,
1. Plaintiff, an established artist, has the right under the Visual Artists Rights Act to prevent any intentional or negligent destruction, distortion, mutilation, or other modification of the Murals for his lifetime;
2. the Murals are works of visual art ofrecognized stature.
3. removal of the Murals would destroy, disfigure, mutilate or otherwise modify the Murals.
4. VLS cannot under VARA remove or cover the Murals.
5. to the extent that VLS has destroyed, disfigured, mutilated or otherwise modified the Murals, Kerson is awarded actual damages, as this Court determines, or, in the alternative,
6. to the extent that VLS has destroyed, disfigured, mutilated or otherwise modified the Murals, it has done so intentionally and in willful disregard of Kerson's rights under VARA and that Kerson be awarded statutory damages in the amount of $150,000 for each mural.
B. Granting and/or awarding Kerson,
1. a temporary, preliminary and permanent injunction enjoining VLS, its agents, attorneys, and employees, and all those acting in concert with them, from taking any action with regard to the Murals that will remove, cover, destroy, disfigure, mutilate or otherwise modify the Murals.
2. a monetary judgment against VLS for such actual and/or statutory damages as this Court may determine.
3. reasonable costs, expenses and attorney's fees, and such other and further relief as the Court considers just and proper.
Lower Court Decision in Favor of Vermont Law School
Notwithstanding these allegations by the Plaintiff, the judge did not agree and held as follows:
"For the following reasons, the court concludes that VLS is entitled to summary judgment on Plaintiffs claims under the VARA."
The following facts are undisputed unless noted otherwise.
A. Creation of the Murals In 1993, the artist Samuel Kerson painted two large murals on the walls of Chase Hall at VLS. The murals, titled "The Underground Railroad, Vermont and the Fugitive Slave," depict the evils of slavery and the efforts of abolitionists and Vermonters to aid slaves seeking freedom on the Underground Railroad.
The work consists of two panels, each 8 feet by 24 feet, painted in acrylic medium directly onto the Sheetrock wall.
The first panel is entitled Slavery. The panel depicts the violent capture of people in Africa; their forced sale at a slave auction in the United States; the brutality of slave labor; and a slave insurrection.
The second panel is entitled "Liberation." The panel depicts the abolitionists John Brown, Frederick Douglass, and Ha:riet Beecher Stowe; Harriet Tubman arriving in Vermont; South Royalton residents sheltering refugee slaves; and Vermonters aiding escaped slaves departing for the Canadian border. (Id. at8.)
B. Student Complaints and the Decision to Remove the Murals from View Since at least 20A7,VLS has received complaints from students expressing their discomfort with the murals. Students have spoken with Associate Dean for Student Affairs and Diversity and Associate Professor of Law Shirley Jefferson repeatedly about what some described as the oocartoonish, almost animalistic" depictions of enslaved African people. (/d.) Following complaints tn2013 and 2014, VLS attached plaques to the wall next to the artworks "explaining the purpose of the mural and its intent to depict the shameful history of slavery as well as Vermont's role in the Underground Railway.
Following the death of George Floyd in early 2020, Dean Jefferson concluded that she 'could no longer urge the students to overlook what the mural's presence said about the atmosphere at VLS for students of color." She approached VLS President Thomas McHenry to say she believed the mural should be removed, and President McHenry agreed.
Their decision coincided with a student petition calling for removal of the murals. On August 5,2020, President McHenry sent Mr. Kerson a letter notifying him of the school's intent to remove or cover the murals permanently. President McHenry gave Mr. Kerson the opportunity to remove the murals himself and offered to return full ownership to him. This lawsuit followed. Public response to VLS's decision has been mixed. In December 2020, a student petition seeking to halt the destruction of the murals was circulated and delivered to President McHenry.
Plaintiff has provided statements from both Black and white students and others who object to the removal of the murals from view. Mr. Kerson believes the destruction of the murals would be prejudicial to his honor or reputation. He believes that permanent concealment of the murals would mark this artwork as "offlensive" and "unworthy to be viewed," and would damage his standing as an o'artist committed to progressive causes."
Furthermore, he believes that VLS's proposed plan to cover his works of art would destroy, distort, mutilate, or otherwise modify the murals.
C. YLS's PIan to Conceal the Murals - Mr. Kerson and VLS agree that the sheetrock cannot be removed without damaging the murals. VLS proposes to cover the works of art by building a wooden frame around the murals that will support acoustic panels. The panels will permanently conceal the murals from view.Neither the frame nor the panels will actually touch the murals.
VLS has submitted detailed information on its plans to pernanently conceal the murals from view. In a declaration filed with the court, Jeffrey Knudsen, the Building and Grounds Supervisor at VLS, stated the following:
[T]he frame and cover will consist of three layers. The first layer will be an outer frame constructed of approximately 1" x 4" wood, affixed to the wall surrounding the mural, likely with threaded bolts or screws. This will be the only part of the framework and cover to make contact with the wall. It will not make contact with the mural itself. The second layer will be a wooden overlay frame to hold the acoustic panels, constructed of approximately LY+" x 6" boards and affixed to the first layer (the outer frame), likely using screws. As depicted in the construction drawings, this second level of framing will include uprights that will pass over the mural, but will be set off from the surface of the mural by approximately 1" (as they will be built on top of the outer frame). The third layer will be the acoustic panels themselves, which will sit on top of the second level of frame and be affixed to the frame with mounting hardware supplied with panels.
As detailed in the cut sheet that was submitted as Exhibit A to my earlier Declaration, the panels are 2" deep and are covered in fabric, with a mineral wool core. The frames are designed to maintain space between the acoustic panels and mural to prevent the panels from deflecting into the mural.
Page three of the construction drawings presents a profile view of the frames and panels; as depicted there, the frames will maintain a distance of approximately 2%" between the mural and the acoustic panels.
As with any construction project, details may need to be adjusted in the field to account for unanticipated conditions. Any such adjustments would be made in a way intended to avoid contact with the mural. The declaration is accompanied by construction drawings that illustrate the three layers of the screen. ln opposing VLS's motion for summary judgment, Plaintiff argues, and submits declarations contending, that there exist "significant factual questions as to the accuracy of VLS's contention that its proposed concealment of the Murals will not damage or destroy the Murals." Plaintiff identifies three presently unanswered questions which, he argues, are critical to this court's consideration of the motion for summary judgment.
These questions relate to: the size of the panels, the mode of construction of the panels, whether the panels create a closed environment resulting in condensation issues, . . . the monitoring of VLS's proposed system to control humidity, the presence of vents, and how degradation of and damage to the Mural's paint is determined and, if necessary, repaired . . . [and] whether the use of acoustic panels to conceal the Murals will cause an acidic atmosphere as well as trapping moisture behind the panels. Plaintiff contends that "all of these concerns must be firmly investigated and resolved before a determination can be made whether or not VLS's stated plan will damage or destroy the Murals."
One of the declarations submitted by Plaintiff's from Daniel Hecht, a carpenter and artist who lives in Montpelier, Vermont. Hecht's Declaration expresses the following concerns regarding VLS' s proposed concealment mechanism: a. VLS has acquired 8' panels to conceal an 8' mural, but the frame must be several inches from the mural, so the 8' panels will be too small for the frame. There is no description of how the panels are constructed. Are they covered with fabric glued to their surface with a glue which will form an acid environment as they degrade? Is there a plywood backing, and how is it affixed to the panel? Will the panels create a closed environment and result in condensation of moisture on the paint, causing damage? VLS proposed some monitoring system for humidity, acknowledging this potential problem. What exactly is the monitoring technology, and who will monitor the monitoring device? Will there be vents to allow for air circulation? Will this be sufficient? Who will determine if the environment degrades the paint and damages the mural? Who will repair the damage?
Plaintiffs Claims In this case, are are concerned with the artist's right of integrity. The right of integrity limits what a subsequent owner can do to an artwork. It also protects works of recognized stature against destruction. The provisions at issue confer the following rights on artists:
(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right,
and
(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.
Exceptions to these provisions appear at 17 U.S.C. 106A:
(1) The modification of a work of visual art which is a result of the passage of time or the inherent nature of the materials is not a distortion, mutilation, or other modification described in subsection (a)(3)(A).
(2) The modification of a work of visual art which is a result of conservation, or of the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification described in subsection (a)(3) unless the modification is caused by gross negligence.
A final exception relevant only to works such as murals that form part of a building appears at 17 U.S.C. 113(d). It exempts works installed in a building prior to passage of the VARA in 1990 as well as subsequent works for which the artist has executed a waiver.
Neither of these exceptions applies in this case.
Defendant argues that concealment is different from either modification or destruction and that an artist has no right under the VARA to prevent an owner from "covering his or her work and removing it from view" so long as the work remains intact.
Modification appears as one of three actions falling short of outright destruction that give rise to VARA protections of the right of integrity. These actions are the intentional distortion, mutilation, or other modification of the work.
The first two actions plainly require some change to the mural itself. Few would describe concealing the mural as a "distortion" or a mutilation."
The real question before the court is whether there is something about the word "modification" that invites a broader definition that includes the concealment of the artwork behind a fixed wall.
In construing the words of a statute, courts turn to their ordinary meanings. "[E]very word employed in the constitution is to be expounded in its plain, obvious and common sense, unless the context furnishes some ground to control, qualify, or enlarge it." See Greenery Rehab. Grp., Inc. v. Hammon, 150 F.3d 226,231 QdCir.1998) ("Individual statutory words are assumed to carry their ordinary, contemporary, common meaning.").
Understanding the meaning of modify is made easier because "modification" is a word with a particular legal provenance. It generally refers to an incremental change to the object at issue. See MCI Telecomms. Corp. v. Am. Tel. & Tel. Co.,512 U.S. 218,225 (1994). The common theme in all these decisions is that modify refers to small-scale changes and adjustments. There is a second reason why the court limits the definition of "modification" to changes made to the artwork itself.
After the construction of the acoustic panel wall, the murals will not "look different" as in the Biichel ruling. Indeed, they will not be seen at all. The murals will have the same status as a portrait or bust that is removed from public exhibition and placed in storage. Their concealment violates neither the right of attribution-because there is no confusion about who painted the murals-nor the right of integrity, as they will not be seen in a manner different from that created by the artist.
Is concealment a form of destruction of the work? The question of "destruction" is easier. The parties agree that for purposes of summary judgment, the murals qualify as a "work of recognized stature" and are consequently protected from intentional or grossly negligent destruction. For purposes of the VARA, concealing the murals behind a wall of acoustic panels is the same as removing a painting from a gallery and storing it out of public view.
CONCLUSION The court GRANTS the Defendant's motion for summary judgment."
2nd Circuit Court of Appeals affirmed grant of summary judgment
IP PODCAST: Click below to hear Attorney Steve® explain the holding of the case.
What is an action for Declaratory Judgment?
If there is a case or controversy, you may be able to seek declaratory relief under 28 U.S.C. 2201:
(a) In a case of actual controversy within its jurisdiction, except with respect to Federal taxes other than actions brought under section 7428 of the Internal Revenue Code of 1986, a proceeding under section 505 or 1146 of title 11, or in any civil action involving an antidumping or countervailing duty proceeding regarding a class or kind of merchandise of a free trade area country (as defined in section 516A(f)(9) of the Tariff Act of 1930), as determined by the administering authority, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.
