We recently reported on the Warhol Foundation’s petition to the United States Supreme Court to review the Second Circuit’s decision in Andy Warhol Found. for Visual Arts, Inc. v. Goldsmith, 11 F.4th 26 (2d Cir. 2021). On March 28, 2022, the Supreme Court granted certiorari, which means the Court will hear the case next term and issue a decision on the merits. Specifically, the Court will consider “whether a work of art is ‘transformative’ when it conveys a different meaning or message from its source material (as [the U.S. Supreme Court, the U.S. Court of Appeals for the Ninth Circuit], and other courts of appeals have held), or whether a court is forbidden from considering the meaning of the accused work where it ‘recognizably deriv[es] from’ its source material (as [the U.S. Court of Appeals for] the Second Circuit has held).” Petition for a Writ of Certiorari, Case No. 21-869, at i (December 9, 2021). As we reported previously, the Supreme Court’s decision in this case will have important consequences for artists, photographers, and others seeking to use or modify existing works. We will continue to monitor this case as it progresses through the Supreme Court and report on further developments.
