The upcoming term for the US Supreme Court includes an ambitious schedule of intellectual property cases, spanning patent, trademark, and copyright law.
The year ahead will see the court release its much-anticipated decision in Andy Warhol Foundation, Inc. v. Goldsmith regarding application of the fair use doctrine to works of art in the copyright context. Three other cases will address trademark protections and enablement in pharmaceutical patents.
In Andy Warhol, the parties focused on the standard to apply when determining whether artwork created from another’s original work—i.e., a “derivative work”—qualifies under the “fair use” exception to copyright infringement.
Here, photographer Lynn Goldsmith snapped a photo of the musician Prince for use in a magazine article in 1981. Andy Warhol modified that photo to create a derivative work that he commercialized. The court will decide whether Warhol’s work is sufficiently transformative to render it a fair use under copyright law.
During the oral arguments, Warhol advocated that adding new meaning and message to the original work is sufficiently transformative.
In contrast, Goldsmith and the government argued the copier must go further by justifying why the use of the...
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