This is an update to my prior post on the long-running copyright battle over Andy Warhol’s “Prince Series.” Today, the Supreme Court granted the Warhol Foundation's petition to hear its appeal of the Second Circuit's ruling, which held that Warhol’s “Prince Series” infringed on photographer Lynn Goldsmith’s portrait of Prince and was not fair use. 

Given the prominence of appropriation in contemporary art, this case will be closely watched. In its cert petition, the Warhol Foundation argued that the Second Circuit’s decision “casts a cloud of legal uncertainty” over an entire genre of Pop Art. In opposition, Goldsmith argued that this concern is overstated, because the Second Circuit’s ruling was limited to the Warhol Foundation’s “commercial licensing of the Prince Series, not Warhol’s original creation.” Goldsmith highlighted that the Second Circuit’s decision did “not consider, let alone decide, whether the infringement encumbers the original Prince Series works.”

The Supreme Court will hear the case during its next term, which begins in October. Last year, the Supreme Court issued a groundbreaking fair use ruling in Google v. Oracle—finding that Google’s copying of 11,500 lines of Oracle’s software code was “transformative” and fair use because Google used the code to create a new product. It remains to be seen whether the Supreme Court will take a similarly expansive view of the fair use doctrine in the context of artistic works.