The 5Pointz case is going to trial; cross motions for summary judgment were denied. I think it's being a little overhyped -- it's been called a "major win" for the artists and "a groundbreaking decision" -- but all that really happened is the Court ruled that the question whether the works are of "recognized stature" is a question of fact for a jury to decide. In 2013, the Court had already decided that their ephemeral nature didn't disqualify graffiti works from VARA protection.
Amy Adler notes that "there’s something ironic about trying to preserve an art form that’s about transience." (Relatedly, I'll be curious to see the plaintiffs' damages theory at trial.)
UPDATE: More from the New York Times.
UPDATE 2: Ann Althouse: "How can the artists can win this? Relying on Visual Artists Rights Act of 1990, they claim entitlement to notice in writing 90 days before the destruction of the art, which, they say, would have given them the opportunity to remove or photograph the work. The artists are not arguing that the owner can't tear down his building."
UPDATE 3: Tim Schneider: "[D]ue to the terms of the Visual Artists Rights Act (VARA), a jury will likely decide whether the [artists] receive monetary damages largely based on whether their destroyed artworks achieved 'recognized stature' in the eyes of supposed industry experts. ... [T]his question reveals the degree to which art is ensconced as an insider's niche, especially here in the US. It isn't just that self-interested experts work daily to reinforce the perception that art depends on their opinions. It's that our legislators have literally made their judgments on this topic the law of the land."
UPDATE 4: Related: a letter from the Art Law Committee of the New York City Bar Association on the "recognized stature" requirement.
