IP Law Daily, STRATEGIC PERSPECTIVES: Article previews upcoming Supreme Court term from IP perspective, (Sep 26, 2022)
Docket highlighted by copyright case over Andy Warhol prints that have wide-reaching effects on “fair use” jurisprudence.
The Supreme Court reconvenes for the opening day of its October 2022 term on Monday, October 3, with only one IP case currently set for review, but that case promises to be a big one, according to a new Strategic Perspectives article. Following up its 2021 decision in “the copyright case of the decade”—Google LLC v. Oracle America, Inc., No. 18-956—the Court will have the opportunity to again clarify the often-cloudy fair use defense codified at Section 107 of the Copyright Act. The case of Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, Dkt. No. 21-869 pits the owner of rights to works by the late pop artist Warhol against well-known celebrity portrait photographer Lynn Goldsmith, with the key issue being whether Warhol’s changes to Goldsmith’s portrait of rock superstar Prince were “transformative” enough to make Warhol’s “Prince Series” of art prints non-infringing fair uses. The Court’s take on the fair use test—especially the first statutory factor, the “purpose and character” of the challenged use—could have impacts on creative endeavors beyond the visual arts, including music and literature. Numerous amici, including the federal government have weighed in, with a slight majority favoring Goldsmith’s position that Warhol did not engage in fair use.
The Court also has the chance to grant certiorari in several other important IP disputes, including cases involving drug patents, Section 101 subject-matter eligibility, and parodies of famous brands.
A detailed breakdown of the Warhol v. Goldsmith case, as well as summaries of several noteworthy pending petitions for review, appears in a Strategic Perspectives article here.
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