WASHINGTON D.C./NEW YORK. The photographer Patrick Cariou is expected to file an appeal with the Supreme Court following the Second Circuit Court of Appeals' refusal earlier this month to rehear (en banc) his copyright infringement claim against Richard Prince. For background on the litigation see here, here and here.
The Supreme Court is of course the highest federal appellate court in the United States and its appellate jurisdiction is largely discretionary. Statistically, the odds are very much against Cariou but as his lawyer Dan Brooks says, if the Court agrees with the photographer that the law on the "fair use" exception to copyright infringement (in particular regarding what qualifies as a "transformative" work) needs to be settled or it thinks "there is a conflict between the circuits, they may agree to hear the case."