The Supreme Court granted a petition for writ of certiorari filed by the Andy Warhol Foundation for the Visual Arts that arises from a copyright infringement action filed by photographer Lynn Goldsmith, who took the photos of Prince that were subsequently the subject of Warhol’s allegedly infringing works. In short, Warhol painted multiple works of art utilizing Goldsmith’s photographs as source material. Warhol and now his foundation believed that the work was transformative in nature and therefore not infringing. Goldsmith disagreed and filed suit in federal court.

The United States District Court agreed with the Warhol Foundation and granted a motion for summary judgment, finding that the work was transformative in nature and therefore entitled to protection under the fair use doctrine. Goldsmith appealed to the Second Circuit Court of Appeals, which promptly reversed the district court in a ruling that held the secondary work must, at a bare minimum, do more than impose the next artist’s style on the primary work. This ruling effectively eviscerated the spirit and intent of the fair use doctrine. Not surprisingly, the Warhol Foundation asked the Second Circuit to reconsider the matter en banc and consider the effect of the Supreme Court’s ruling in Google v. Oracle. The Second Circuit did exactly that yet still reached the same conclusion. Accordingly, the Warhol Foundation petitioned the Supreme Court. The Supreme Court granted that petition and will resolve the apparent circuit split.

This may be one of the most important Supreme Court rulings concerning intellectual property in years for creatives. If the Supreme Court affirms the decision of the Second Circuit, creatives throughout the country will be hamstrung with respect to their ability to use source material as part of their secondary works, effectively stifling creativity. There will be a lot riding on this decision, and I’m certain artists and other creatives throughout the U.S. will be watching closely.


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