Did The Supreme Court Transform Its Transformative Use Test In Warhol?

In Andy Warhol Foundation For the Visual Arts, Inc. v. Goldsmith, No. 21-869, 598 U.S. _____, slip op. (May 18, 2023), the Supreme Court seemingly backed away from its former characterization of the "transformative use" test for evaluating the fair use defense in copyright law. The question the case raises for trademark litigation is whether the ruling signals a stricter interpretation of what "transformative" means, or whether, due to the specific issue and the parties involved, it should be viewed as sui generis.

The dispute in Warhol involved a photograph of the rock star Prince, which the photographer, Lynn Goldsmith, licensed to Vanity Fair magazine for one-time use as an "artist reference," meaning that the photograph was to form a basis for an illustration created by an artist. Slip op., p. 3. The illustration based on the photograph was duly created and ran in Vanity Fair's November 1984 issue. Id. at 4 (see the images accompanying the Supreme Court opinions