Publications

The Supreme Court decision in Andy Warhol Foundation v. Goldsmith changed the way fair use is analyzed. In determining fair use, four factors are examined. The first fair use factor examines the purpose and character of the use. Prior to this case, the focus has been on the transformative nature of the work itself. The Supreme Court in Campbell v. Acuff-Rose Music established this transformative use analysis when it said that the first fair use factor is an inquiry into whether “the new work merely “supersedes the objects” of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message[,]. . . in other words, whether and to what extent the new work is transformative.” This transformative use analysis took on great importance and often eclipsed the other fair use factors. Prior to this case, the focus was on whether the second work had a different aesthetic or conveyed a different meaning. If the work was transformative, it was almost always found to be fair use. 

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In response to Google L.L.C.’s (“Google”) and other’s petitions for inter partes review (“I.P.R.”) of two patents owned by Parus Holdings, Inc. (“Parus”), the Patent Trial and Appeal Board (“PTAB”) of the United States Patent and Trademark Office (“USPTO”) found a number of claims obvious over prior art. The Court of Appeals for the Federal Circuit affirmed the PTAB’s decision, shedding additional light on the requirements and burdens of patent owners when responding to I.P.R. petitions.

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On June 7, 2023, the Ninth Circuit issued its opinion in VHT, Inc. v. Zillow Group, Inc., in which it affirmed the trial court’s findings of infringement against Zillow and the award of statutory damages. In 2019, the Ninth Circuit had previously found mostly in Zillow’s favor as to an earlier trial and had reversed and remanded the case back for further proceedings.

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The Federal Circuit Court of Appeals continues to strike down patents directed to abstract ideas under the Alice test for patent subject matter eligibility. In People.ai, Inc. v. Clari Inc. (Fed. Cir. 2023) U.S. App. LEXIS 8294, the court invalidated seven patents owned by People.ai.

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In a closely watched copyright case, the U.S. Supreme Court ruled Thursday that Andy Warhol’s portraits of music legend Prince did not qualify as fair use under copyright law. The decision affirms a previous ruling by the Second Circuit, which found that Warhol’s artwork shared the same commercial purpose as the original photograph taken by photographer Lynn Goldsmith.

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