The question of whether something is transformative isn't always clear-cut, but when it is ruled transformative, it's independently copyrightable. (IANAL, but

The question of whether something is transformative isn't always clear-cut, but when it is ruled transformative, it's independently copyrightable. (IANAL, but personal opinion: appeals whiffed on this one and SCOTUS is going to give them a gentle wrist-slapping. Yes, there is a certain aspect of deciding the transformative nature of a work that requires the judge to step into the role of art critic. The nature of the test is to decide if a new work adds significant creative elements, and that's inherently subjective; the existence of the test doesn't let a judge dodge the art-critique responsibility).