That’s today’s dissent in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, written by Justice Kagan and joined by Chief Justice Roberts (see pdf pp. 81-83). But I read the U.S. Reports only for the articles.
Note that at least one lower court decision, Cariou v. Prince [not the same Prince] (2d Cir. 2013), anticipated this. Law review articles had done the same, I’m sure (I did, for instance, in my Thinking Ahead About Freedom of Speech and Hostile Work Environment Harassment, 17 Berkeley J. Emp. & Lab. L. 305 (1996)), but I believe the Warhol dissent was the first Supreme Court decision to do this. Please let me know if there’s some other precedent I’ve missed.