Other than clarity on how to evaluate fair use, attorneys and academics generally were unsure what to expect. Intellectual property law professor Mark Lemley of Stanford University noted that the late Justice Ruth Bader Ginsberg’s death and Justice Stephen Breyer’s imminent retirement removed the two justices most interested in copyright law. That “may make everything a little more of a crapshoot,” he said.

Lemley, who joined a brief backing the Warhol Foundation in the Second Circuit, said he could see the court delivering a decision in a way that de-emphasizes transformativeness. If so that could strike at the heart of conceptual art in a way that would “make a lot of people really nervous about the status of their works.”

“The Second Circuit said a court shouldn’t be in the business of judging art, but somebody’s got to decide if this Andy Warhol art is new and transformative,” Lemley said. “And the Supreme Court said in Google v. Oracle that’s something that a judge decides rather than a jury.”