The photographer Patrick Cariou won in 2008 a lawsuit for copyright infringement against the appropriation artist Richard Prince, who had used Cariou's photographs of Jamaican Rastafarians in his appropriation artworks.
Such decision was largely reversed in appeal last April, where it was ruled that 25 of 30 paintings from Prince's "Canal Zone" were sufficiently different from Cariou's ones to be qualified as fair use, as we reported here.
Last May, Cariou asked the Second Circuit of Appeal to reconsider the case, claiming that the ruling contradicted the earlier decisions by the same court, not providing any certainty on how to qualify fair use. But the Second Circuit denied his request on June 10.
Therefore, Patrick Cariou’s lawyer recently announced the photographer will file appeal with the Supreme Court within three months, i.e. within 90 days from the Second Circuit's refusal to rehear the case.
Assuming that Cariou will file the Appeal, then the Supreme Court will not necessarily agree to hear it. Indeed, though the Supreme Court receives thousands of requests per year, it agrees to decide on a small percentage (e.g. in 2010 it was only 1%).
Anyhow, a pronunciation from the US Supreme Court could be useful to provide clarity on what can constitute fair use. Indeed, the Second Circuit's decision was largely criticized for not offering sufficient criteria for applying fair use defense in appropriation art cases.