From Amelia Brankov here, including the following:
"Significantly, the defendants argue that VARA does not apply to the 5Pointz aerosol works because the underlying protocol at 5Pointz was that the works were generally intended to be temporary and the site curator would allow one artist's works to be painted over by another purportedly without complying with VARA's waiver/notice provisions. While the judges reserved decision on this (and all other issues) at the hearing, responses from the bench included comments that, if temporary work was not protected, then The Gates, an iconic temporary installation by Christo and Jeanne-Claude in Central Park, would not be protected by VARA, and that even if the artists' rights previously were violated by the 5Pointz curator, that does not mean that the defendants were free to disregard the artists' rights under VARA."
That's interesting. One of the odd things about the case to me has always been that it seemed to suggest:
1. Work painted over by another artist (which apparently happened routinely) ... no VARA violation.
2. The same work painted over not by another artist but by the owner of the property ... VARA violation.
But the appellate judges seem to maybe be suggesting a different answer, namely that they were VARA violations all along, that every time Artist A painted over Artist B's work it was a VARA violation but nobody did anything about it, the relevant norm in the community was to let the violation slide. But, in theory, they could have sued every time their work was painted over by the next artist up.
Counterpoint: who knows? As I said in response to a similar report last week, it can be a mistake to read too much into oral argument. Let's see what ends up happening.