Monday, March 28, 2022

BREAKING: Cert Granted in Warhol-Goldsmith Fair Use Case (UPDATED)

Big news.

Background here.

UPDATE: Unsurprisingly, lots of coverage. Adam Liptak in the Times ("The case will test the scope of the fair use defense to copyright infringement and how to assess if a new work based on an older one meaningfully transformed it"), Eileen Kinsella at artnet news ("The decision may have big implications for artists who appropriate or remix existing images, an area of law that has long remained murky").

Sergio Muñoz Sarmiento:

"We certainly hope–as much as one can hope for anything these days–that SCOTUS cleans up the wasteland that has become of 'fair use' interpretation. One would think, and hope I suppose, that with many of the sitting justices adhering to textualism, they will fully jettisons the nonsensical 'transformativeness' test that has plagued us like a really bad case of Covid since the mid-1990s."

Dave Steiner likewise hopes it "rid[s] us of the odious 'transformative' test for fair use."

Brian Frye: "Considerable likelihood of reversal, but not a sure thing. But it would be unusual for SCOTUS to take a case like this one, unless there were the votes to reverse."

Mark Lemley also hopes for a reversal of "a truly disastrous Second Circuit opinion," but cautions: "I admit there is a risk of disaster, especially with Justice Breyer leaving the Court.  But I'm not sure they would have taken it if they wanted to leave the decision in place."

Never underestimate the odds of disaster.