errored in multiple ways in this case when it did nearly seven million dollars in damages for the defense painting over works of wall art that even the plaintiff's own expert had never heard of before would really have made the whole five dollars and surprise itself largely a statutory violation including obviously with the plaintiffs were doing nd separate and apart from the air is interpreting the  statute properly interpreted there's actually no evidence here that would be sufficient to support a finding of recognized stature for any of the works and finally the rd point that the district court erred in finding willful violations and imposing a maximum one hundred and fifty thousand dollars in statutory damages for each of the works even works that were not added to the lawsuit until long after the wor that this court said in its decision and pull our versus seymour this one is the admonition that is also you can find in supreme court cases as well that whatever else you do courts can't be assessing the merits of works the nd is that as paul our it says vera protects only a quote narrow subset of works and quote a very select protected the i mean but they could be extensive the the core of your claim is that the judge sails to recognize that temporary or is not protected the something you're asking us to address or you only think that that's part of how we're using it i would say that in a limited sense ok the works here are a special kind of temporary in the sense that it's part of a project argument is that the district judge did not apply the stature standard correct at all or correctly what is it i think that the court thought it was applying before taking on the case was not familiar with any of these works have supposed to recognize that your testified mostly about her assessment of the skill craftsmanship of the work and she you know there is a lot here about the importance of the site of five points and look the whole genesis of the lawsuit is that they were attempting to save the site why aren't all those appropriately considered i mean i would think that  i i know you were concerned about judge blocks appreciation for this area of art you can understand that i have little sensitivity for it nevertheless it has its own status and mr con is recognized in this field i would think that would allow him to offer opinion testimony as to which pieces have stature and we know that some of the pieces here were put on the five points tour so that would be another piece of evidence suggesting stature rd we have five points status now again people who are insensitive to this might question it but you know if the ship picasso is going to have more more stature than something that i scribble here today and then you get the experts who basically on her quality assessment corroborate several thing all these others have said address here the and i think it's important to distinguish between the standard the judge applied that was erroneous and whether the conclusions could be supported the standard was erroneous because the focus on merit as independently something that is important is exactly the opposite i mean like i said polarises we're not supposed to be assessing on merit that  about that and there's a temporal aspect too you need something to have achieved recognition before it was destroyed you have to destroy something that is then of recognized her it's not a retrospective we think this is good art but let me talk about co what the judge was actually looking at is she said because cohen allowed these to be painted on particular walls and left them up on some walls or stuff stayed up longer than other walls that that indicated the problem with that is i mean there are a lot of problems with that one is that he allocates the space before he sees the artwork it's not so it's he's making a judgement about the artist not about the statue when he does that but if you do that you haven't heard evidence any signs of spaces on the wall but then his decision about why did they remained and for how long they remain way cohen's decision to put something on those walls where his stayed up somewhat longer and the permanently somewhat longer it's his decision to do that make something of reckoni all those things on the walls facing the seven train were painting over something he previously decided to put there and it would be under that virus saying because he put the previous thing there that was and be a work of recognize sure he can't approve painting it over without violating the statute the artist can't do it so you would be interpreted in the statute in a way that freezes things just by virtue of that you know you take a snapshot and then you can't do anything else because you don't have any kind unless you have a serious threshold for something actually achieving recognition beyond the fact that i mean i think the arguments were clever isn't persuasive the the statute provides opportunities to remove replace whatever and part of your problem is that you  action but they might also be satisfied by being told they can come and photograph they can come and remove they can come and do whatever the statute provides your honor with respect it's not about solicitousness for other artists it's about interpret preserving thing for that that deserves longer term preservation and given content to it it's not about solicitousness for them you're creating a regime where machines we've got a text that seems to say what it says and it says as you point out recognize stature there's not much more to it than that in the text so we look at the dictionary there are other things that we can look at but we're not in the business of creating machine so if congress tells us this is the regime and it has a number of mechanisms pursuant to which a developer like your said this is the type of thing that's protected and our saying you shouldn't do that congress has said recognize that your and the court has to give content to it whatever mechanisms there may judge was he not entitled to find that some significant number of these visual depictions were of recognized stature well  this is getting past the problem of applying the wrong fandor on the evidence then you're looking at something where he basically almost across the board did it without discrimination including stuff that had just been put up would you agree that any of the works of art fit into the category of having recognized stature of the united states i wouldn't because these were all things that were part of a large operation where there are three hundred dollars works on the wall at a time there will still love the metropolitan museum of art well yes your honor but but there is the civically what the objections the objection is that there is nothing other than the fact really that come in and put these head allowed these to be painted on those walls that said that they had ach recognized stature and including as to his own paintings that that he put up there on the court saying that's enough for that to do so it was an undiscriminati everything because the standard was completely wrong i think it was it's hard i mean so he wasn't applying the right standard so i think it would have been received on specifically what his testified all about about merit direct there was a range of evidence different cons from different coming from different sources that he relied on what you've essentially been on is i mean there were robots arguments below standard was was you didn't think the judge was considering whether they did a change stature at the time of destruction that he was relying on the expert and therefore doing a post you pointed out at the beginning of the argument that we should not be engaged in this exercise of what so we should look at community standards and so on but if if if the burden is  even come from abroad and make this part of their new york experience and and these are one i'm troubled by your notion that quality is relevant i understand th i understand that but that's what you're saying all the other evidence from what i'm saying to you is when there is evidence of contemporary recognition infected by that because he's not focusing on the question of had you identify these you know what's and again like then there is this you see it also in the blunderbus ruling everything that went up for a long time a short time except for a couple of things he throws it all in because she's testified and i've said all of this although she does testify in part about th trying to say is that in the particular the particular type of contemporary that we're dealing with here there are there can be you can conceive of something that's temporary but achieves stature in that short time but when you're dealing with a site whose whole operation is we're painting over the stuff after a certain amount of time then ye know no it's the fact that they are part it that this is all part of a larger operation of quote creative destruction where the whole way the place operates is to take the think that if you had taken a snapshot two years earlier and i want to said those were the work of recognized stature and so the people who painted over them would be in violation of that stock would you handle  know i don't see how these right that would be to the extraordinary case that's not this type of that's why i say there is this is a particular type of temporary that achieved you know overwhelming attention rd party recognition et c that that would have achieved stature but here you've got a situation where if you're going to say that the fact that you know mr cohen decided that is that there is no way to rule that these works are recognize that you're by virtue of the fact that one allocated the space for them they were on the t whatever without effectively holding that any site like this is in constant violation of error unless except by the grace of the artists not choosing not to sue or you're getting consent from all of them because if it's being there makes it recognize that you're and that's true for everybody else that the statute says that if you're going to require removal or destruction or whatever of art you have to do that up front i mean the plaintiffs if they're successful may get this maybe taste of unintended consequences for them and they may not in the long term like w but we're construing the statute at once it seems to be you're arguing that the district court was wrong in finding that they had attained stature and that constraining the statute the statute said refuse says recognize that you are but there is a very major component that is a legal decision here right congress didn't say well when we say recognized that doing this much recognition this much recognition or this much pylorus as it's supposed to be narrow and but necessarily and and but also narrow at a limited class and by definition then and what i think i hear from the court is a suggestion that i mean there's a suggestion that all  it's going to be anything that you know is on the wall and on the tour and that's going to be enough that's not a factual just a factual decision there is a statutory construction decision about how big a slice of art works is congress saying by statute it's now permanent and you can't do anything to it isn't there copyrightable issue here is not a confining or limb to that knowledge and that is not very i mean just because you can have a whole host of works of visual art there can be millions and millions in the question is how many is  works a visual arts under the definition of era they now try to backdoor an argument that temporary ephemeral art goes to the standard of recognized stature this not only disregards overwhelming evidence based upon which the advisory jury in the court found recognized stature but also asked this court to inject a definition of temporary art into the statute where congress provided none which would inevitably  require this court to commit art censorship through the courts own art interpretation there is no legal issue that counsel is raising that the art qualifies the question here is of the is it of recognized stature and they take issue with the court's ruling on recognized stature in this case the court applied the carter standard it looked at the totality of the evidence you had competing experts you had an expert question and you reach agreement that it does not have to the evidence in this case that the court cited to it said that it relied on most heavily was pre destruction stature so that was that was the main focus of the under what circumstances would it not have to be under certain circumstances for example if you had a newspaper article after the fact where in the entire idea to prevent the destruction of something of yes so how do you make that assessment unless it's at the time of destruction in most instances you would need to both you and i most trouble is when you say in most instances i can't see any instance where you would make a terminations after the struction in the corridor did not specifically address that issue it said it how would you how would it be fair notice to the person who's either taking the work down or destroying  if it has reached the stature at that moment i wouldn't know how the person got there noticed that he was acting contrary to law the at the grouping of evidence most the totality of the evans really must be pre destruction in stature so that's what the point is you could consider under some circumstance it's left open in corridor and in palermo you could consider some post destruction evidence but in this case that's not what happened the court relied mostly on destruction statute if that's what it said in its decision that was the focus of his predecessor as i understand one of his key arguments is that when you have arc that can be destroyed by the artists or by someone like mr cohn at his discretion how could he possibly be viewed as not destroyable by the landlord i before any art would be painted over change modify they would get the permission and consent from the arts they would be notice and permission and that would happen on occasions the artists protected their own moral lives i didn't understand that for instance with respect to the less favorable wall that there was always eight agreement before i thought it was they went on those was understanding that it could be painted over the next day yes i was so where where was that the artists were given notice for all the walls for some of the walls what so if you just i think you just addressed it there was an understanding so when the artist would come on those rotating laws that you're referring to which are not where the works of art were in this case they were on a long standing walls there would be the understanding that it would come down  out how such works ever satisfy the stature standard when we're not claiming that those works a satisfy the stature standard the works in this case the forty five works were on the long standing walls for example some of that artwork mother green earth was up for seven years many of the works were intended to be up for more than a year so on the long standing walls in this case contain the forty five dollars works what you are referring to is other walls that gave some less less recognized orders opportunities but even in those instances there was an agreement either at the time they drew the work created the work or after to paint over it it was never you know stepping on someone's rights and just whitewashing something without notice i understand that someone might paint something whether on the wall or  cohen and any place and all of a sudden everyone in the our world in the press recognizes it as an extraordinary item in the next thing you know people are rushing to see it it's cetera et cetera determination in an area that involves a lot of turnover reaches the level of stature that the statute expects st of all cohen with the long standing walls with never paint over any of the works without the permission of the artists when we look at what what the requirement is a record of what stature requires the temporary components of it has no bearing on u nrecognized stature you know the fact the mere fact that you had to get that he always sought permission doesn't mean that the work had stature he himself says that if recognize it has to be recognized artist was given one of these walls and came by and was just blowing off steam he would have that painted over so yeah maybe he called the artist and said it was permissible but that didn't mean the work couldn't had that stature and that's why in this case we look at it so  the evidence and it wasn't just cohen's determination in this instance it was rene vera who testified extensively spending over six hundred hours researching all the art it was the two fat witnesses it was the most of her assessment whether as graffiti it had artistic the alue she she was unable to testify whether at the time of destruction it had to change a certain stature she did and there's still a by request from visitors to come on to the premises that each of the works of art that block found to contain stature some of them have very little media attention or they only have attention because they are on sites that the artist himself put it on i mean that doesn't tell us much about how it's perceived by the art community or even the general public in each of the instances  there even with those works of art where there were not rd party recognition such as a newspaper article when a vera corroborated with with cohen's testimony with cohen's findings that these works with reckon i stature we always had testimony from the knave era we always had testimony from cohen that these were on his will as this is part of his collection his special collection of five points t particular particular place location is an important factor here this was five points we know from the martin never dispositive it's never dispositive it's a starting point so if a work of art for example is in the loo that would be a significant starting point it got there for a reason this was the world's largest open hours so museum the work that got in the longstanding walls got there for a reason there was a tremendous amount of tourists and there must be recognition on the one of those categories provisions in vera that provide for a written waiver a specific written waiver unlike some of the other countries that belong to the convention where you can't obtain a waiver under any circumstances here the owner and the artist can enter into that agreement and you haven't noticed provisions in this instance there was ample opportunity for the owner of this property to provide a ninety to ninety dangerous i mean that's a legal requirement e at least a dozen maybe more could have been removed in whole or in part and what's also important that's just pieces that you could take we know you can take what you know that are on you don't want to removable piece had the artist been given an opportunity to protect their moral rights that is to go in and assess the walls it could have very well been that a lot more could have been done they could have removed parts of the wall in today's world it's not uncommon to remove a part of a wall and preserve it or maybe to preserve their moral rights they want to take a photograph or say goodbye to the photo they were completely denied that opportunity as a as an intentional act by what cost to prevent them from under that scenario there are likely would be no protection there hasn't been an absolute conclusive finding throughout all the district but i think of a very fair interpretation of the cases that are out there is collins because he wasn't painting the walls you're referring to are the rotating walls where he gave the younger artist the less experience art as an opportunity to paint but for those that made his collection on the walls that could be seen by the public many of those most of those are made up unchanged one of them i referred to before grandmother up green mother earth was up for over seven years and the intention and the discussions with cohen at the time that was not the rules that were filed followed at five points that didn't happen it was a set of rules where there would always be notice and permission to an artist before paintings works for  of the net might as your honor had indicated previously that it might have been upfront calling might have said well you can paint on the wall but you know just so you know tomorrow it's going to be coming down on the on the on a rotating wall so that i understand was always had it might have been before or after now thank you very much thank you and many of the artist testified that he could always have stuff painted over including on the longstanding walls and but the point about it not being in writing is the key one as you're saying it has to be in writing to comply with the statute so for so there are some significant number of these repainted in two thousand and thirteen on the so called long standing wall long standing walls just to be clear is relevant relative term they weren't permanent those things were like being in a gallery and rotating or being in a museum and you know the reason it's not hanging their picture the reason it's not is because they're don't rehang the place operates by painting over and destroying the works so that their interpretation of the statute is one where it's a violation where they don't have written waivers and then they're saying it's ok for us but it's if it's a violation under fire it's a violation votes away have helped you because it would just suggest that there were violations that you know are part of this lawsuit but that doesn't necessarily mean you were conned out by a way it helps me your honor i think is that it's an illustration that it doesn't interpret as being reasonable in the sense that if you interpret it as references to quality being a bad determining whether it was recognized for its quality at the time if you interpret it the way that it was interpreted in this case so question is the was the work meritorious at the time struction recognized as marriage or recognize as well set aside that have stature at the time of destruction that's part of it right i think you can only look in stature through the prism of recognition for the ok so you don't think that it's a it's one holistic i don't think it's a separate requirement if it's recognized as having stand that's your problem i forgot to mention poured the two words that were referred to those were all for the the reason the ritz words was for the inside works of people can readily see not it's not that the specific words on the outside and even for the inside works there was an evidence that they were going to see specifically these work that we want to see of the stuff inside we want to see the work by particular artists the finally in terms of being denied an opportunity even take pictures judge block at the p r hearing said i'm going to let him do this take pictures if you want to take pictures because it's going to come down once the the order  have time to do it before the order issues because i wanted issues this is going to happen to be at the little disingenuous judge block made it plain that they were going to be allowed to go forward with building plans which there was reason to think was