Journal of Intellectual Property Law
Abstract
The Supreme Court’s 2023 decision in Andy Warhol Foundation v. Goldsmith narrowed the transformative fair use inquiry but left unresolved where derivative adaptation ends and genuine transformation begins. This article proposes that the Purpose-Expression Shift (PES) Framework can supply that missing line, a dual-pronged standard rooted in § 107(1) that asks (1) whether the secondary work serves a purpose meaningfully different from the original and (2) whether its expressive alterations are tailored to realize that new purpose. Mapping two decades of case law onto a four-quadrant matrix, this article shows how the PES Framework can predict outcomes under first factor and locate the threshold beyond which uses become reliably transformative. By linking doctrinal clarity to a structured means-end analysis, the Framework preserves authors’ incentive to market derivatives while protecting follow-on creators whose reuses advance copyright’s core goal of promoting the progress of science and the arts. Courts, scholars, and practitioners can deploy this Framework to resolve post-Warhol transformative fair use disputes with greater transparency and consistency.
Recommended Citation
Sangwook Park,
Toward a Transformative Fair Use Standard After Warhol,
33
J. Intell. Prop. L.
107
(2026).
Available at:
https://digitalcommons.law.uga.edu/jipl/vol33/iss1/4