Intellectual Property Law

New Matter SPRING 2022, VOLUME 47, EDITION 1


Alexandra Darraby
Art Law Firm

Procedural History of the Warhol Case

For details of the facts and analysis of Andy Warhol Foundation v. Goldsmith, see NEW MATTER (Fall 2021), discussing the district court summary judgment for the Foundation and the reversal and remand by the Second Circuit (Warhol I).1 Shortly after Warhol I, the U.S. Supreme Court decided Google LLC v. Oracle America, Inc., a fair use case involving computer code.2 The Warhol Foundation thereafter obtained a rehearing that led to withdrawal of Second Circuit’s prior opinion and a superseding opinion (Warhol II).3 In Warhol II, the Second Circuit incorporated Google, upheld its earlier reversal of Warhol I, vacated summary judgment on the infringement counterclaim and remanded. The Warhol Foundation filed a petition for certiorari at the U.S. Supreme Court, docketed December 13, 2021. As a matter of fairness to both parties, in-depth evaluation will wait until a response is filed to the petition for certiorari. Stay tuned and connected!

Below is a brief review, an update on the sequel Warhol II and a prequel to the future of transformative fair use based on Google.

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