Supreme Court to Hear Warhol Fair Use Case

This post is an update on Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, which we have blogged about before (most recent post here).

As background, in March 2021, the Second Circuit Court of Appeals held that the Warhol Foundation infringed Lynn Goldsmith’s photograph of Prince when it commercially licensed the reproduction of one of Andy Warhol’s works from his Prince series as a magazine cover. Last December, the Warhol Foundation filed a petition for a writ of certiorari, seeking Supreme Court review of the Second Circuit’s judgment in the case. In doing so, the foundation argued that the Second Circuit’s approach “creates a circuit split [importantly, with the Ninth Circuit, per the foundation] and casts a cloud of legal uncertainty over an entire genre of visual art, including canonical works by Andy Warhol and countless other artists.” According to the foundation, the Supreme Court “should grant review to vindicate its precedent, resolve the confusion in the lower courts, and resurrect protections for free expression that the Second Circuit’s ruling now imperils.”

Goldsmith, for her part, opposed the petition, arguing that the Second Circuit followed prior Supreme Court precedent and its decision did not create a circuit split. Goldsmith also claimed that the Warhol Foundation exaggerates the effect of the decision below, which is a decision about the licensing of the artwork, not the artwork’s creation, and highlighted that the Second Circuit endorsed other examples of artwork that directly copied from a source work but were nonetheless transformative.

Yesterday, the Supreme Court granted the Warhol Foundation’s cert. petition. The Supreme Court will hear the case in its next term, which begins in October. The outcome of this case should provide more guidance on the application of the fair use doctrine to artistic works.