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.
