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      "content": "You are a legal research assistant. Ground the memo in retrieved sources. Distinguish majority opinions, separate opinions, and internal notes; preserve qualifications and cite supporting passages."
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      "content": "We represent a magazine publisher considering licensing a pop-art portrait derived from a photographer's image for the cover of a paid musician retrospective. The artist says the new image changes the photograph's meaning, so a license from the photographer is unnecessary. Prepare a research memo for the supervising partner using the Supreme Court's 2023 Warhol decision. Did the first fair-use factor favor AWF for its 2016 Orange Prince magazine license? Does adding a new meaning or message settle the first factor? Distinguish the holding from the dissent and identify what the Court did not decide. Use the retrieved opinions."
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      "content": "SOURCE: Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith\nURL: https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf\nSECTION: Syllabus (not the Court's opinion)\nPDF pages: 1-6\n\n[PDF page 1]\n(Slip Opinion)              OCTOBER TERM, 2022                                       1\n\nSyllabus\n\nNOTE: Where it is feasible, a syllabus (headnote) will be released, as is\nbeing done in connection with this case, at the time the opinion is issued.\nThe syllabus constitutes no part of the opinion of the Court but has been\nprepared by the Reporter of Decisions for the convenience of the reader.\nSee United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.\n\n\nSUPREME COURT OF THE UNITED STATES\n\nSyllabus\n\nANDY WARHOL FOUNDATION FOR THE VISUAL\nARTS, INC. v. GOLDSMITH ET AL.\n\nCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR\nTHE SECOND CIRCUIT\n\nNo. 21–869.      Argued October 12, 2022—Decided May 18, 2023\nIn 2016, petitioner Andy Warhol Foundation for the Visual Arts, Inc.\n(AWF) licensed to Condé Nast for $10,000 an image of “Orange\nPrince”—an orange silkscreen portrait of the musician Prince created\nby pop artist Andy Warhol—to appear on the cover of a magazine com-\nmemorating Prince. Orange Prince is one of 16 works now known as\nthe Prince Series that Warhol derived from a copyrighted photograph\ntaken in 1981 by respondent Lynn Goldsmith, a professional photog-\nrapher. Goldsmith had been commissioned by Newsweek in 1981 to\nphotograph a then “up and coming” musician named Prince Rogers\nNelson, after which Newsweek published one of Goldsmith’s photos\nalong with an article about Prince. Years later, Goldsmith granted a\nlimited license to Vanity Fair for use of one of her Prince photos as an\n“artist reference for an illustration.” The terms of the license included\nthat the use would be for “one time” only. Vanity Fair hired Warhol to\ncreate the illustration, and Warhol used Goldsmith’s photo to create a\npurple silkscreen portrait of Prince, which appeared with an article\nabout Prince in Vanity Fair’s November 1984 issue. The magazine\ncredited Goldsmith for the “source photograph” and paid her $400. Af-\nter Prince died in 2016, Vanity Fair’s parent company (Condé Nast)\nasked AWF about reusing the 1984 Vanity Fair image for a special\nedition magazine that would commemorate Prince. When Condé Nast\nlearned about the other Prince Series images, it opted instead to pur-\nchase a license from AWF to publish Orange Prince. Goldsmith did\nnot know about the Prince Series until 2016, when she saw Orange\nPrince on the cover of Condé Nast’s magazine. Goldsmith notified\nAWF of her belief that it had infringed her copyright. AWF then sued\nGoldsmith for a declaratory judgment of noninfringement or, in the\n\n[PDF page 2]\n2      ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nSyllabus\n\nalternative, fair use. Goldsmith counterclaimed for infringement. The\nDistrict Court considered the four fair use factors in 17 U. S. C. §107\nand granted AWF summary judgment on its defense of fair use. The\nCourt of Appeals reversed, finding that all four fair use factors favored\nGoldsmith. In this Court, the sole question presented is whether the\nfirst fair use factor, “the purpose and character of the use, including\nwhether such use is of a commercial nature or is for nonprofit educa-\ntional purposes,” §107(1), weighs in favor of AWF’s recent commercial\nlicensing to Condé Nast.\nHeld: The “purpose and character” of AWF’s use of Goldsmith’s photo-\ngraph in commercially licensing Orange Prince to Condé Nast does not\nfavor AWF’s fair use defense to copyright infringement. Pp. 12–38.\n(a) AWF contends that the Prince Series works are “transformative,”\nand that the first fair use factor thus weighs in AWF’s favor, because\nthe works convey a different meaning or message than the photograph.\nBut the first fair use factor instead focuses on whether an allegedly\ninfringing use has a further purpose or different character, which is a\nmatter of degree, and the degree of difference must be weighed against\nother considerations, like commercialism. Although new expression,\nmeaning, or message may be relevant to whether a copying use has a\nsufficiently distinct purpose or character, it is not, without more, dis-\npositive of the first factor. Here, the specific use of Goldsmith’s photo-\ngraph alleged to infringe her copyright is AWF’s licensing of Orange\nPrince to Condé Nast. As portraits of Prince used to depict Prince in\nmagazine stories about Prince, the original photograph and AWF’s\ncopying use of it share substantially the same purpose. Moreover,\nAWF’s use is of a commercial nature. Even though Orange Prince adds\nnew expression to Goldsmith’s photograph, in the context of the chal-\nlenged use, the first fair use factor still favors Goldsmith. Pp. 12–27.\n(1) The Copyright Act encourages creativity by granting to the crea-\ntor of an original work a bundle of rights that includes the rights to\nreproduce the copyrighted work and to prepare derivative works. 17\nU. S. C. §106. Copyright, however, balances the benefits of incentives\nto create against the costs of restrictions on copying. This balancing\nact is reflected in the common-law doctrine of fair use, codified in §107,\nwhich provides: “[T]he fair use of a copyrighted work, . . . for purposes\nsuch as criticism, comment, news reporting, teaching . . . , scholarship,\nor research, is not an infringement of copyright.” To determine\nwhether a particular use is “fair,” the statute enumerates four factors\nto be considered. The factors “set forth general principles, the appli-\ncation of which requires judicial balancing, depending upon relevant\ncircumstances.” Google LLC v. Oracle America, Inc., 593 U. S. ___, ___.\nThe first fair use factor, “the purpose and character of the use, in-\ncluding whether such use is of a commercial nature or is for nonprofit\n\n[PDF page 3]\nCite as: 598 U. S. ____ (2023)                        3\n\nSyllabus\n\neducational purposes,” §107(1), considers the reasons for, and nature\nof, the copier’s use of an original work. The central question it asks is\nwhether the use “merely supersedes the objects of the original creation\n. . . (supplanting the original), or instead adds something new, with a\nfurther purpose or different character.” Campbell v. Acuff-Rose Music,\nInc., 510 U. S. 569, 579 (internal quotation marks and citations omit-\nted). As most copying has some further purpose and many secondary\nworks add something new, the first factor asks “whether and to what\nextent” the use at issue has a purpose or character different from the\noriginal. Ibid. (emphasis added). The larger the difference, the more\nlikely the first factor weighs in favor of fair use. A use that has a fur-\nther purpose or different character is said to be “transformative,” but\nthat too is a matter of degree. Ibid. To preserve the copyright owner’s\nright to prepare derivative works, defined in §101 of the Copyright Act\nto include “any other form in which a work may be recast, transformed,\nor adapted,” the degree of transformation required to make “trans-\nformative” use of an original work must go beyond that required to\nqualify as a derivative.\nThe Court’s decision in Campbell is instructive. In holding that par-\nody may be fair use, the Court explained that “parody has an obvious\nclaim to transformative value” because “it can provide social benefit,\nby shedding light on an earlier work, and, in the process, creating a\nnew one.” 510 U. S., at 579. The use at issue was 2 Live Crew’s copy-\ning of Roy Orbison’s song, “Oh, Pretty Woman,” to create a rap deriva-\ntive, “Pretty Woman.” 2 Live Crew transformed Orbison’s song by add-\ning new lyrics and musical elements, such that “Pretty Woman” had a\ndifferent message and aesthetic than “Oh, Pretty Woman.” But that\ndid not end the Court’s analysis of the first fair use factor. The Court\nfound it necessary to determine whether 2 Live Crew’s transformation\nrose to the level of parody, a distinct purpose of commenting on the\noriginal or criticizing it. Further distinguishing between parody and\nsatire, the Court explained that “[p]arody needs to mimic an original\nto make its point, and so has some claim to use the creation of its vic-\ntim’s (or collective victims’) imagination, whereas satire can stand on\nits own two feet and so requires justification for the very act of borrow-\ning.” Id., at 580–581. More generally, when “commentary has no crit-\nical bearing on the substance or style of the original composition, . . .\nthe claim to fairness in borrowing from another’s work diminishes ac-\ncordingly (if it does not vanish), and other factors, like the extent of its\ncommerciality, loom larger.” Id., at 580.\nCampbell illustrates two important points. First, the fact that a use\nis commercial as opposed to nonprofit is an additional element of the\nfirst fair use factor. The commercial nature of a use is relevant, but\nnot dispositive. It is to be weighed against the degree to which the use\n\n[PDF page 4]\n4      ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nSyllabus\n\nhas a further purpose or different character. Second, the first factor\nrelates to the justification for the use. In a broad sense, a use that has\na distinct purpose is justified because it furthers the goal of copyright,\nnamely, to promote the progress of science and the arts, without di-\nminishing the incentive to create. In a narrower sense, a use may be\njustified because copying is reasonably necessary to achieve the user’s\nnew purpose. Parody, for example, “needs to mimic an original to\nmake its point.” Id., at 580–581. Similarly, other commentary or crit-\nicism that targets an original work may have compelling reason to\n“conjure up” the original by borrowing from it. Id., at 588. An inde-\npendent justification like this is particularly relevant to assessing fair\nuse where an original work and copying use share the same or highly\nsimilar purposes, or where wide dissemination of a secondary work\nwould otherwise run the risk of substitution for the original or licensed\nderivatives of it. See, e.g., Google, 593 U. S., at ___ (slip op., at 26).\nIn sum, if an original work and secondary use share the same or\nhighly similar purposes, and the secondary use is commercial, the first\nfair use factor is likely to weigh against fair use, absent some other\njustification for copying. Pp. 13–20.\n(2) The fair use provision, and the first factor in particular, re-\nquires an analysis of the specific “use” of a copyrighted work that is\nalleged to be “an infringement.” §107. The same copying may be fair\nwhen used for one purpose but not another. See Campbell, 510 U. S.,\nat 585. Here, Goldsmith’s copyrighted photograph has been used in\nmultiple ways. The Court limits its analysis to the specific use alleged\nto be infringing in this case—AWF’s commercial licensing of Orange\nPrince to Condé Nast—and expresses no opinion as to the creation,\ndisplay, or sale of the original Prince Series works. In the context of\nCondé Nast’s special edition magazine commemorating Prince, the\npurpose of the Orange Prince image is substantially the same as that\nof Goldsmith’s original photograph. Both are portraits of Prince used\nin magazines to illustrate stories about Prince. The use also is of a\ncommercial nature. Taken together, these two elements counsel\nagainst fair use here. Although a use’s transformativeness may out-\nweigh its commercial character, in this case both point in the same\ndirection. That does not mean that all of Warhol’s derivative works,\nnor all uses of them, give rise to the same fair use analysis. Pp. 20–\n27.\n(b) AWF contends that the purpose and character of its use of Gold-\nsmith’s photograph weighs in favor of fair use because Warhol’s silk-\nscreen image of the photograph has a different meaning or message.\nBy adding new expression to the photograph, AWF says, Warhol made\ntransformative use of it. Campbell did describe a transformative use\nas one that “alter[s] the first [work] with new expression, meaning, or\n\n[PDF page 5]\nCite as: 598 U. S. ____ (2023)                      5\n\nSyllabus\n\nmessage.” 510 U. S., at 579. But Campbell cannot be read to mean\nthat §107(1) weighs in favor of any use that adds new expression,\nmeaning, or message. Otherwise, “transformative use” would swallow\nthe copyright owner’s exclusive right to prepare derivative works, as\nmany derivative works that “recast, transfor[m] or adap[t]” the origi-\nnal, §101, add new expression of some kind. The meaning of a second-\nary work, as reasonably can be perceived, should be considered to the\nextent necessary to determine whether the purpose of the use is dis-\ntinct from the original. For example, the Court in Campbell considered\nthe messages of 2 Live Crew’s song to determine whether the song had\na parodic purpose. But fair use is an objective inquiry into what a user\ndoes with an original work, not an inquiry into the subjective intent of\nthe user, or into the meaning or impression that an art critic or judge\ndraws from a work.\nEven granting the District Court’s conclusion that Orange Prince\nreasonably can be perceived to portray Prince as iconic, whereas Gold-\nsmith’s portrayal is photorealistic, that difference must be evaluated\nin the context of the specific use at issue. The purpose of AWF’s recent\ncommercial licensing of Orange Prince was to illustrate a magazine\nabout Prince with a portrait of Prince. Although the purpose could be\nmore specifically described as illustrating a magazine about Prince\nwith a portrait of Prince, one that portrays Prince somewhat differ-\nently from Goldsmith’s photograph (yet has no critical bearing on her\nphotograph), that degree of difference is not enough for the first factor\nto favor AWF, given the specific context and commercial nature of the\nuse. To hold otherwise might authorize a range of commercial copying\nof photographs to be used for purposes that are substantially the same\nas those of the originals.\nAWF asserts another related purpose of Orange Prince, which is to\ncomment on the “dehumanizing nature” and “effects” of celebrity. No\ndoubt, many of Warhol’s works, and particularly his uses of repeated\nimages, can be perceived as depicting celebrities as commodities. But\neven if such commentary is perceptible on the cover of Condé Nast’s\ntribute to “Prince Rogers Nelson, 1958–2016,” on the occasion of the\nman’s death, the asserted commentary is at Campbell’s lowest ebb: It\n“has no critical bearing on” Goldsmith’s photograph, thus the commen-\ntary’s “claim to fairness in borrowing from” her work “diminishes ac-\ncordingly (if it does not vanish).” Campbell, 510 U. S., at 580. The\ncommercial nature of the use, on the other hand, “loom[s] larger.” Ibid.\nLike satire that does not target an original work, AWF’s asserted com-\nmentary “can stand on its own two feet and so requires justification for\nthe very act of borrowing.” Id., at 581. Moreover, because AWF’s copy-\ning of Goldsmith’s photograph was for a commercial use so similar to\nthe photograph’s typical use, a particularly compelling justification is\n\n[PDF page 6]\n6      ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nSyllabus\n\nneeded. Copying the photograph because doing so was merely helpful\nto convey a new meaning or message is not justification enough. Pp.\n28–37.\n(c) Goldsmith’s original works, like those of other photographers, are\nentitled to copyright protection, even against famous artists. Such pro-\ntection includes the right to prepare derivative works that transform\nthe original. The use of a copyrighted work may nevertheless be fair\nif, among other things, the use has a purpose and character that is\nsufficiently distinct from the original. In this case, however, Gold-\nsmith’s photograph of Prince, and AWF’s copying use of the photo-\ngraph in an image licensed to a special edition magazine devoted to\nPrince, share substantially the same commercial purpose. AWF has\noffered no other persuasive justification for its unauthorized use of the\nphotograph. While the Court has cautioned that the four statutory fair\nuse factors may not “be treated in isolation, one from another,” but\ninstead all must be “weighed together, in light of the purposes of copy-\nright,” Campbell, 510 U. S., at 578, here AWF challenges only the\nCourt of Appeals’ determinations on the first fair use factor, and the\nCourt agrees the first factor favors Goldsmith. P. 38.\n11 F. 4th 26, affirmed.\n\nSOTOMAYOR, J., delivered the opinion of the Court, in which THOMAS,\nALITO, GORSUCH, KAVANAUGH, BARRETT, and JACKSON, JJ., joined. GOR-\nSUCH, J., filed a concurring opinion, in which JACKSON, J., joined. KAGAN,\nJ., filed a dissenting opinion, in which ROBERTS, C. J., joined."
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      "content": "SOURCE: Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith\nURL: https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf\nSECTION: Opinion of the Court\nPDF pages: 7-45\n\n[PDF page 7]\nCite as: 598 U. S. ____ (2023)                              1\n\nOpinion of the Court\n\nNOTICE: This opinion is subject to formal revision before publication in the\nUnited States Reports. Readers are requested to notify the Reporter of\nDecisions, Supreme Court of the United States, Washington, D. C. 20543,\npio@supremecourt.gov, of any typographical or other formal errors.\n\n\nSUPREME COURT OF THE UNITED STATES\n_________________\n\nNo. 21–869\n_________________\n\n\nANDY WARHOL FOUNDATION FOR THE VISUAL\nARTS, INC., PETITIONER v. LYNN\nGOLDSMITH, ET AL.\nON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF\nAPPEALS FOR THE SECOND CIRCUIT\n[May 18, 2023]\n\nJUSTICE SOTOMAYOR delivered the opinion of the Court.\nThis copyright case involves not one, but two artists. The\nfirst, Andy Warhol, is well known. His images of products\nlike Campbell’s soup cans and of celebrities like Marilyn\nMonroe appear in museums around the world. Warhol’s\ncontribution to contemporary art is undeniable.\nThe second, Lynn Goldsmith, is less well known. But she\ntoo was a trailblazer. Goldsmith began a career in rock-\nand-roll photography when there were few women in the\ngenre. Her award-winning concert and portrait images,\nhowever, shot to the top. Goldsmith’s work appeared in\nLife, Time, Rolling Stone, and People magazines, not to\nmention the National Portrait Gallery and the Museum of\nModern Art. She captured some of the 20th century’s great-\nest rock stars: Bob Dylan, Mick Jagger, Patti Smith, Bruce\nSpringsteen, and, as relevant here, Prince.\nIn 1984, Vanity Fair sought to license one of Goldsmith’s\nPrince photographs for use as an “artist reference.” The\nmagazine wanted the photograph to help illustrate a story\nabout the musician. Goldsmith agreed, on the condition\n\n[PDF page 8]\n2   ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nOpinion of the Court\n\nthat the use of her photo be for “one time” only. 1 App. 85.\nThe artist Vanity Fair hired was Andy Warhol. Warhol\nmade a silkscreen using Goldsmith’s photo, and Vanity Fair\npublished the resulting image alongside an article about\nPrince. The magazine credited Goldsmith for the “source\nphotograph,” and it paid her $400. 2 id., at 323, 325–326.\nWarhol, however, did not stop there. From Goldsmith’s\nphotograph, he derived 15 additional works. Later, the\nAndy Warhol Foundation for the Visual Arts, Inc. (AWF)\nlicensed one of those works to Condé Nast, again for the\npurpose of illustrating a magazine story about Prince. AWF\ncame away with $10,000. Goldsmith received nothing.\nWhen Goldsmith informed AWF that she believed its use\nof her photograph infringed her copyright, AWF sued her.\nThe District Court granted summary judgment for AWF on\nits assertion of “fair use,” 17 U. S. C. §107, but the Court of\nAppeals for the Second Circuit reversed. In this Court, the\nsole question presented is whether the first fair use factor,\n“the purpose and character of the use, including whether\nsuch use is of a commercial nature or is for nonprofit edu-\ncational purposes,” §107(1), weighs in favor of AWF’s recent\ncommercial licensing to Condé Nast. On that narrow issue,\nand limited to the challenged use, the Court agrees with the\nSecond Circuit: The first factor favors Goldsmith, not AWF.\nI\nLynn Goldsmith is a professional photographer. Her spe-\ncialty is concert and portrait photography of musicians. At\nage 16, Goldsmith got one of her first shots: an image of the\nBeatles’ “trendy boots” before the band performed live on\nThe Ed Sullivan Show. S. Michel, Rock Portraits, N. Y.\nTimes, Dec. 2, 2007, p. G64. Within 10 years, Goldsmith\nhad photographed everyone from Led Zeppelin to James\nBrown (the latter in concert in Kinshasa, no less). At that\ntime, Goldsmith “had few female peers.” Ibid. But she was\n\n[PDF page 9]\nCite as: 598 U. S. ____ (2023)                    3\n\nOpinion of the Court\n\na self-starter. She quickly became “a leading rock photog-\nrapher” in an era “when women on the scene were largely\ndismissed as groupies.” Ibid.\nIn 1981, Goldsmith convinced Newsweek magazine to\nhire her to photograph Prince Rogers Nelson, then an “up\nand coming” and “hot young musician.” 2 App. 315.\nNewsweek agreed, and Goldsmith took photos of Prince in\nconcert at the Palladium in New York City and in her studio\non West 36th Street. Newsweek ran one of the concert pho-\ntos, together with an article titled “ ‘The Naughty Prince of\nRock.’ ” Id., at 320. Goldsmith retained the other photos.\nShe holds copyright in all of them.\nOne of Goldsmith’s studio photographs, a black and white\nportrait of Prince, is the original copyrighted work at issue\nin this case. See fig. 1, infra.\nIn 1984, Goldsmith, through her agency, licensed that\nphotograph to Vanity Fair to serve as an “artist reference\nfor an illustration” in the magazine. 1 App. 85. The terms\nof the license were that the illustration was “to be published\nin Vanity Fair November 1984 issue. It can appear one\ntime full page and one time under one quarter page. No\nother usage right granted.” Ibid. Goldsmith was to receive\n$400 and a source credit.\nTo make the illustration, Vanity Fair hired pop artist\nAndy Warhol. Warhol was already a major figure in Amer-\nican art, known among other things for his silkscreen por-\ntraits of celebrities.1 From Goldsmith’s photograph, Warhol\n\n——————\n1 A silkscreen is a fine mesh fabric used in screen printing. Warhol’s\n\npractice was to deliver a photograph to a professional silkscreen printer\nwith instructions for alterations, such as cropping and high contrasting.\n1 App. 160, 163. The latter alteration would “flatten” the image. Once\nWarhol approved, the printer would “reproduc[e]” the altered image “like\na photographic negative onto the screen.” Id., at 164. For canvas prints,\nWarhol “would then place the screen face down on the canvas, pour ink\nonto the back of the mesh, and use a squeegee to pull the ink through the\nweave and onto the canvas.” Ibid. The resulting “high-contrast half-tone\n\n[PDF page 10]\n4    ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nOpinion of the Court\n\n\n\n\nFigure 1. A black and white portrait photograph of Prince\ntaken in 1981 by Lynn Goldsmith.\n\n\ncreated a silkscreen portrait of Prince, which appeared\nalongside an article about Prince in the November 1984 is-\nsue of Vanity Fair. See fig. 2, infra. The article, titled “Pur-\nple Fame,” is primarily about the “sexual style” of the new\ncelebrity and his music. Vanity Fair, Nov. 1984, p. 66.\nGoldsmith received her $400 fee, and Vanity Fair credited\nher for the “source photograph.” 2 App. 323, 325–326. War-\nhol received an unspecified amount.\nIn addition to the single illustration authorized by the\nVanity Fair license, Warhol created 15 other works based\non Goldsmith’s photograph: 13 silkscreen prints and two\n——————\nimpressions” served as an “ ‘under-drawing,’ ” over which Warhol painted\ncolors by hand. Id., at 165.\n\n[PDF page 11]\nCite as: 598 U. S. ____ (2023)                      5\n\nOpinion of the Court\n\n\n\n\nFigure 2. A purple silkscreen portrait of Prince created in 1984\nby Andy Warhol to illustrate an article in Vanity Fair.\n\n\npencil drawings. The works are collectively referred to as\nthe “Prince Series.” See Appendix, infra. Goldsmith did not\nknow about the Prince Series until 2016, when she saw the\nimage of an orange silkscreen portrait of Prince (“Orange\nPrince”) on the cover of a magazine published by Vanity\nFair’s parent company, Condé Nast. See fig. 3, infra.\nBy that time, Warhol had died, and the Prince Series had\npassed to the Andy Warhol Foundation for the Visual Arts,\nInc. AWF no longer possesses the works,2 but it asserts copy-\nright in them. It has licensed images of the works for com-\nmercial and editorial uses. In particular, after Prince died\nin 2016, Condé Nast contacted AWF about the possibility of\nreusing the 1984 Vanity Fair image for a special edition\nmagazine that would commemorate Prince. Once AWF in-\nformed Condé Nast about the other Prince Series images,\nhowever, Condé Nast obtained a license to publish Orange\n——————\n2 AWF sold 12 of the works to collectors and galleries, and it trans-\n\nferred custody of the remaining four works to the Andy Warhol Museum\nin Pittsburgh.\n\n[PDF page 12]\n6   ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nOpinion of the Court\n\n\n\n\nFigure 3. An orange silkscreen portrait of Prince on the cover\nof a special edition magazine published in 2016 by Condé Nast.\n\n\nPrince instead. The magazine, titled “The Genius of\nPrince,” is a tribute to “Prince Rogers Nelson, 1958–2016.”\nIt is “devoted to Prince.” 2 App. 352. Condé Nast paid AWF\n$10,000 for the license. Goldsmith received neither a fee\nnor a source credit.\nRemember that Goldsmith, too, had licensed her Prince\nimages to magazines such as Newsweek, to accompany a\nstory about the musician, and Vanity Fair, to serve as an\nartist reference. But that was not all. Between 1981 and\n2016, Goldsmith’s photos of Prince appeared on or between\nthe covers of People, Readers Digest, Guitar World, and\nMusician magazines. See, e.g., fig. 4, infra.\n\n[PDF page 13]\nCite as: 598 U. S. ____ (2023)               7\n\nOpinion of the Court\n\n\n\n\nFigure 4. One of Lynn Goldsmith’s photographs of Prince\non the cover of Musician magazine.\n\n\nPeople magazine, in fact, paid Goldsmith $1,000 to use\none of her copyrighted photographs in a special collector’s\nedition, “Celebrating Prince: 1958–2016,” just after Prince\ndied. People’s tribute, like Condé Nast’s, honors the life and\nmusic of Prince. Other magazines, including Rolling Stone\nand Time, also released special editions. See fig. 5, infra.\nAll of them depicted Prince on the cover. All of them used\na copyrighted photograph in service of that object. And all\nof them (except Condé Nast) credited the photographer.\n\n[PDF page 14]\n8     ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nOpinion of the Court\n\n\n\n\nFigure 5. Four special edition magazines commemorating Prince\nafter he died in 2016.\n\nWhen Goldsmith saw Orange Prince on the cover of\nCondé Nast’s special edition magazine, she recognized her\nwork. “It’s the photograph,” she later testified. 1 App. 290.\nOrange Prince crops, flattens, traces, and colors the photo\nbut otherwise does not alter it. See fig. 6, infra.\n\n[PDF page 15]\nCite as: 598 U. S. ____ (2023)                      9\n\nOpinion of the Court\n\n\n\n\nFigure 6. Warhol’s orange silkscreen portrait of Prince superimposed\non Goldsmith’s portrait photograph.\n\nGoldsmith notified AWF of her belief that it had infringed\nher copyright. AWF then sued Goldsmith and her agency\nfor a declaratory judgment of noninfringement or, in the al-\nternative, fair use. Goldsmith counterclaimed for infringe-\nment.\nThe District Court granted summary judgment for AWF.\n382 F. Supp. 3d 312, 316 (SDNY 2019). The court consid-\nered the four fair use factors enumerated in 17 U. S. C. §107\nand held that the Prince Series works made fair use of Gold-\nsmith’s photograph. As to the first factor, the works were\n“transformative” because, looking at them and the photo-\ngraph “side-by-side,” they “have a different character, give\nGoldsmith’s photograph a new expression, and employ new\naesthetics with creative and communicative results distinct\nfrom Goldsmith’s.” 382 F. Supp. 3d, at 325–326 (internal\nquotation marks and alterations omitted). In particular,\nthe works “can reasonably be perceived to have transformed\nPrince from a vulnerable, uncomfortable person to an\n\n[PDF page 16]\n10   ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nOpinion of the Court\n\niconic, larger-than-life figure,” such that “each Prince Se-\nries work is immediately recognizable as a ‘Warhol’ rather\nthan as a photograph of Prince.” Id., at 326. Although the\nsecond factor, the nature of Goldsmith’s copyrighted work\n(creative and unpublished), “would ordinarily weigh in\n[her] favor . . . , this factor [was] of limited importance be-\ncause the Prince Series works are transformative.” Id., at\n327. The third factor, the amount and substantiality of the\nportion used in relation to the copyrighted work, favored\nAWF because, according to the District Court, “Warhol re-\nmoved nearly all the photograph’s protectible elements in\ncreating the Prince Series.” Id., at 330. Finally, the fourth\nfactor likewise favored AWF because “the Prince Series\nworks are not market substitutes that have harmed—or\nhave the potential to harm—Goldsmith.” Id., at 331.\nThe Court of Appeals for the Second Circuit reversed and\nremanded. 11 F. 4th 26, 54 (2021). It held that all four fair\nuse factors favored Goldsmith. On the first factor, “the pur-\npose and character of the use,” §107(1), the Court of Appeals\nrejected the notion that “any secondary work that adds a\nnew aesthetic or new expression to its source material is\nnecessarily transformative.” Id., at 38–39. The question\nwas, instead, “whether the secondary work’s use of its\nsource material is in service of a fundamentally different\nand new artistic purpose and character.” Id., at 42 (internal\nquotation marks omitted). Such “transformative purpose\nand character must, at bare minimum, comprise something\nmore than the imposition of another artist’s style on the pri-\nmary work.” Ibid. Here, however, “the overarching purpose\nand function of the two works at issue . . . is identical, not\nmerely in the broad sense that they are created as works of\nvisual art, but also in the narrow but essential sense that\nthey are portraits of the same person.” Ibid. (footnote omit-\nted). The Court of Appeals also rejected the District Court’s\nlogic that “ ‘each Prince Series work’ ” is transformative be-\ncause it “ ‘is immediately recognizable as a “Warhol,” ’ ”\n\n[PDF page 17]\nCite as: 598 U. S. ____ (2023)                 11\n\nOpinion of the Court\n\nwhich the Court of Appeals believed would “create a celeb-\nrity-plagiarist privilege.” Id., at 43; see also ibid. (“[T]he\nfact that Martin Scorsese’s recent film The Irishman is rec-\nognizably ‘a Scorsese’ does not absolve him of the obligation\nto license the original book” (some internal quotation marks\nand alterations omitted)).\nOn the other three factors, the Court of Appeals found\nthat the creative and unpublished nature of Goldsmith’s\nphotograph favored her, id., at 45; that the amount and sub-\nstantiality of the portion taken (here, “the ‘essence’ ” of the\nphotograph) was not reasonable in relation to the purpose\nof the use, id., at 45–47; and that AWF’s commercial licens-\ning encroached on Goldsmith’s protected market to license\nher photograph “to publications for editorial purposes and\nto other artists to create derivative works,” id., at 48–51.3\nThe court noted that there was “no material dispute that\nboth Goldsmith and AWF have sought to license (and in-\ndeed have successfully licensed) their respective depictions\nof Prince to popular print magazines to accompany articles\nabout him.” Id., at 49 (footnote omitted).\nFinally, although the District Court had not reached the\nissue, the Court of Appeals rejected AWF’s argument that\nthe Prince Series works were not substantially similar to\nGoldsmith’s photograph. See id., at 52–54.\nJudge Jacobs concurred. He stressed that the Court of\nAppeals’ holding “d[id] not consider, let alone decide,\nwhether the infringement here encumbers the original\nPrince Series works.” Id., at 54. Instead, “the only use at\n\n——————\n3 The Court of Appeals considered not only the possibility of market\n\nharm caused by the actions of AWF but also “whether ‘unrestricted and\nwidespread conduct of the sort engaged in by [AWF] would result in a\nsubstantially adverse impact on the potential market’ ” for the photo-\ngraph, including the market for derivative works. 11 F. 4th 26, 49–50\n(CA2 2021) (quoting Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569,\n590 (1994)); see also Harper & Row, Publishers, Inc. v. Nation Enter-\nprises, 471 U. S. 539, 568 (1985).\n\n[PDF page 18]\n12   ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nOpinion of the Court\n\nissue” was “the Foundation’s commercial licensing” of im-\nages of the Prince Series. Id., at 55.\nThis Court granted certiorari. 596 U. S. ___ (2022).\nII\nAWF does not challenge the Court of Appeals’ holding\nthat Goldsmith’s photograph and the Prince Series works\nare substantially similar. The question here is whether\nAWF can defend against a claim of copyright infringement\nbecause it made “fair use” of Goldsmith’s photograph. 17\nU. S. C. §107.\nAlthough the Court of Appeals analyzed each fair use fac-\ntor, the only question before this Court is whether the court\nbelow correctly held that the first factor, “the purpose and\ncharacter of the use, including whether such use is of a com-\nmercial nature or is for nonprofit educational purposes,”\n§107(1), weighs in Goldsmith’s favor. AWF contends that\nthe Prince Series works are “transformative,” and that the\nfirst factor therefore weighs in its favor, because the works\nconvey a different meaning or message than the photo-\ngraph. Brief for Petitioner 33. The Court of Appeals erred,\naccording to AWF, by not considering that new expression.\nId., at 47–48.\nBut the first fair use factor instead focuses on whether an\nallegedly infringing use has a further purpose or different\ncharacter, which is a matter of degree, and the degree of\ndifference must be weighed against other considerations,\nlike commercialism. Campbell v. Acuff-Rose Music, Inc.,\n510 U. S. 569, 579 (1994). Although new expression may be\nrelevant to whether a copying use has a sufficiently distinct\npurpose or character, it is not, without more, dispositive of\nthe first factor.\nHere, the specific use of Goldsmith’s photograph alleged\nto infringe her copyright is AWF’s licensing of Orange\nPrince to Condé Nast. As portraits of Prince used to depict\n\n[PDF page 19]\nCite as: 598 U. S. ____ (2023)             13\n\nOpinion of the Court\n\nPrince in magazine stories about Prince, the original photo-\ngraph and AWF’s copying use of it share substantially the\nsame purpose. Moreover, the copying use is of a commercial\nnature. Even though Orange Prince adds new expression\nto Goldsmith’s photograph, as the District Court found, this\nCourt agrees with the Court of Appeals that, in the context\nof the challenged use, the first fair use factor still favors\nGoldsmith.\nA\nThe Copyright Act encourages creativity by granting to\nthe author of an original work “a bundle of exclusive rights.”\nHarper & Row, Publishers, Inc. v. Nation Enterprises, 471\nU. S. 539, 546 (1985); see U. S. Const., Art. I, §8, cl. 8 (“The\nCongress shall have Power . . . To Promote the Progress of\nScience and useful Arts, by securing for limited Times to\nAuthors and Inventors the exclusive Right to their respec-\ntive Writings and Discoveries”). That bundle includes the\nrights to reproduce the copyrighted work, to prepare deriv-\native works, and, in the case of pictorial or graphic works,\nto display the copyrighted work publicly. 17 U. S. C. §106.\nThe Act, however, “reflects a balance of competing claims\nupon the public interest: Creative work is to be encouraged\nand rewarded, but private motivation must ultimately\nserve the cause of promoting broad public availability of lit-\nerature, music, and the other arts.” Twentieth Century Mu-\nsic Corp. v. Aiken, 422 U. S. 151, 156 (1975). Copyright thus\ntrades off the benefits of incentives to create against the\ncosts of restrictions on copying. The Act, for example, limits\nthe duration of copyright, §§302–305, as required by the\nConstitution; makes facts and ideas uncopyrightable, §102;\nand limits the scope of copyright owners’ exclusive rights,\n§§107–122.\nThis balancing act between creativity and availability\n(including for use in new works) is reflected in one such lim-\nitation, the defense of “fair use.” In 1976, Congress codified\n\n[PDF page 20]\n14   ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nOpinion of the Court\n\nthe common-law doctrine of fair use in §107, which pro-\nvides: “[T]he fair use of a copyrighted work, . . . for purposes\nsuch as criticism, comment, news reporting, teaching . . . ,\nscholarship, or research, is not an infringement of copy-\nright.” To determine whether a particular use is “fair,” the\nstatute sets out four factors to be considered:\n“(1) the purpose and character of the use, including\nwhether such use is of a commercial nature or is for\nnonprofit educational purposes;\n“(2) the nature of the copyrighted work;\n“(3) the amount and substantiality of the portion\nused in relation to the copyrighted work as a whole; and\n“(4) the effect of the use upon the potential market\nfor or value of the copyrighted work.”\nThe fair use doctrine “permits courts to avoid rigid appli-\ncation of the copyright statute when, on occasion, it would\nstifle the very creativity which that law is designed to fos-\nter.” Stewart v. Abend, 495 U. S. 207, 236 (1990) (internal\nquotation marks omitted). The Act’s fair use provision, in\nturn, “set[s] forth general principles, the application of\nwhich requires judicial balancing, depending upon relevant\ncircumstances.” Google LLC v. Oracle America, Inc., 593\nU. S. ___, ___ (2021) (slip op., at 14). Because those princi-\nples apply across a wide range of copyrightable material,\nfrom books to photographs to software, fair use is a “flexi-\nble” concept, and “its application may well vary depending\non context.” Id., at ___ (slip op., at 15). For example, in\napplying the fair use provision, “copyright’s protection may\nbe stronger where the copyrighted material . . . serves an\nartistic rather than a utilitarian function.” Ibid.\n1\nThe first fair use factor is “the purpose and character of\nthe use, including whether such use is of a commercial na-\nture or is for nonprofit educational purposes.” §107(1). This\n\n[PDF page 21]\nCite as: 598 U. S. ____ (2023)                    15\n\nOpinion of the Court\n\nfactor considers the reasons for, and nature of, the copier’s\nuse of an original work. The “central” question it asks is\n“whether the new work merely ‘supersede[s] the objects’ of\nthe original creation . . . (‘supplanting’ the original), or in-\nstead adds something new, with a further purpose or differ-\nent character.” Campbell, 510 U. S., at 579 (quoting Folsom\nv. Marsh, 9 F. Cas. 342, 348 (No. 4,901) (CC Mass. 1841)\n(Story, J.), and Harper & Row, 471 U. S., at 562). In that\nway, the first factor relates to the problem of substitution—\ncopyright’s bête noire. The use of an original work to\nachieve a purpose that is the same as, or highly similar to,\nthat of the original work is more likely to substitute for, or\n“ ‘supplan[t],’ ” the work, ibid.\nConsider the “purposes” listed in the preamble paragraph\nof §107: “criticism, comment, news reporting, teaching . . . ,\nscholarship, or research.” Although the examples given are\n“ ‘illustrative and not limitative,’ ” they reflect “the sorts of\ncopying that courts and Congress most commonly ha[ve]\nfound to be fair uses,” and so may guide the first factor in-\nquiry. Campbell, 510 U. S., at 577–578 (quoting §101). As\nthe Court of Appeals observed, the “examples are easily un-\nderstood,” as they contemplate the use of an original work\nto “serv[e] a manifestly different purpose from the [work]\nitself.” 11 F. 4th, at 37. Criticism of a work, for instance,\nordinarily does not supersede the objects of, or supplant, the\nwork. Rather, it uses the work to serve a distinct end.4\nNot every instance will be clear cut, however. Whether a\nuse shares the purpose or character of an original work, or\ninstead has a further purpose or different character, is a\nmatter of degree. Most copying has some further purpose,\n——————\n4 Take a critical book review, for example. Not only does the review, as\n\na whole, serve a different purpose than the book; each quoted passage\nwithin the review likely serves a different purpose (as an object of criti-\ncism) than it does in the book. That may not always be so, however, and\na court must consider each use within the whole to determine whether\nthe copying is fair. W. Patry, Fair Use §3:1, pp. 129–130 (2022).\n\n[PDF page 22]\n16   ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nOpinion of the Court\n\nin the sense that copying is socially useful ex post. Many\nsecondary works add something new. That alone does not\nrender such uses fair. Rather, the first factor (which is just\none factor in a larger analysis) asks “whether and to what\nextent” the use at issue has a purpose or character different\nfrom the original. Campbell, 510 U. S., at 579 (emphasis\nadded). The larger the difference, the more likely the first\nfactor weighs in favor of fair use. The smaller the differ-\nence, the less likely.\nA use that has a further purpose or different character is\nsaid to be “ ‘transformative.’ ” Ibid. (quoting P. Leval, To-\nward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1111\n(1990) (hereinafter Leval)). As before, “transformative-\nness” is a matter of degree. See Campbell, 510 U. S., at 579.\nThat is important because the word “transform,” though not\nincluded in §107, appears elsewhere in the Copyright Act.\nThe statute defines derivative works, which the copyright\nowner has “the exclusive righ[t]” to prepare, §106(2), to in-\nclude “any other form in which a work may be recast, trans-\nformed, or adapted,” §101. In other words, the owner has a\nright to derivative transformations of her work. Such\ntransformations may be substantial, like the adaptation of\na book into a movie. To be sure, this right is “[s]ubject to”\nfair use. §106; see also §107. The two are not mutually\nexclusive. But an overbroad concept of transformative use,\none that includes any further purpose, or any different\ncharacter, would narrow the copyright owner’s exclusive\nright to create derivative works. To preserve that right, the\ndegree of transformation required to make “transformative”\nuse of an original must go beyond that required to qualify\nas a derivative.5\n——————\n5 In theory, the question of transformative use or transformative pur-\n\npose can be separated from the question whether there has been trans-\nformation of a work. In practice, however, the two may overlap. Com-\npare, e.g., Núñez v. Caribbean Int’l News Corp., 235 F. 3d 18, 21–23 (CA1\n\n[PDF page 23]\nCite as: 598 U. S. ____ (2023)                   17\n\nOpinion of the Court\n\nFor example, this Court in Campbell considered whether\nparody may be fair use. In holding that it may, the Court\nexplained that “parody has an obvious claim to transform-\native value” because “it can provide social benefit, by shed-\nding light on an earlier work, and, in the process, creating\na new one.” 510 U. S., at 579. The use at issue in Campbell\nwas 2 Live Crew’s copying of certain lyrics and musical ele-\nments from Roy Orbison’s song, “Oh, Pretty Woman,” to cre-\nate a rap derivative titled “Pretty Woman.” Without a\ndoubt, 2 Live Crew transformed Orbison’s song by adding\nnew lyrics and musical elements, such that “Pretty Woman”\nhad a new message and different aesthetic than “Oh, Pretty\nWoman.” Indeed, the whole genre of music changed from\nrock ballad to rap. That was not enough for the first factor\nto weigh in favor of fair use, however. The Court found it\nnecessary to determine whether 2 Live Crew’s transfor-\nmation of Orbison’s song rose to the level of parody, a dis-\ntinct purpose of commenting on the original or criticizing it.\nSee id., at 580–583.\nDistinguishing between parody (which targets an author\nor work for humor or ridicule) and satire (which ridicules\nsociety but does not necessarily target an author or work),\nthe Court further explained that “[p]arody needs to mimic\nan original to make its point, and so has some claim to use\nthe creation of its victim’s (or collective victims’) imagina-\ntion, whereas satire can stand on its own two feet and so\nrequires justification for the very act of borrowing.” Id., at\n580–581. More generally, when “commentary has no criti-\n\n\n——————\n2000) (newspaper’s reproduction, without alteration, of photograph of\nbeauty pageant winner to explain controversy over whether her title\nshould be withdrawn had transformative purpose because “ ‘the pictures\nwere the story’ ”), with Leibovitz v. Paramount Pictures Corp., 137 F. 3d\n109, 114–115 (CA2 1998) (film advertisement’s alteration of well-known\nphotograph by superimposing actor’s face on actress’ body had trans-\nformative purpose of parody).\n\n[PDF page 24]\n18    ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nOpinion of the Court\n\ncal bearing on the substance or style of the original compo-\nsition, . . . the claim to fairness in borrowing from another’s\nwork diminishes accordingly (if it does not vanish), and\nother factors, like the extent of its commerciality, loom\nlarger.” Id., at 580; see also id., at 597 (Kennedy, J., con-\ncurring).\nThis discussion illustrates two important points: First,\nthe fact that a use is commercial as opposed to nonprofit is\nan additional “element of the first factor.” Id., at 584. The\ncommercial nature of the use is not dispositive. Ibid.;\nGoogle, 593 U. S., at ___ (slip op., at 27). But it is relevant.\nAs the Court explained in Campbell, it is to be weighed\nagainst the degree to which the use has a further purpose\nor different character. See 510 U. S., at 579 (“[T]he more\ntransformative the new work, the less will be the signifi-\ncance of other factors, like commercialism, that may weigh\nagainst a finding of fair use”); see also id., at 580, 585.6\nSecond, the first factor also relates to the justification for\nthe use. In a broad sense, a use that has a distinct purpose\nis justified because it furthers the goal of copyright, namely,\nto promote the progress of science and the arts, without di-\nminishing the incentive to create. See id., at 579; Authors\nGuild v. Google, Inc., 804 F. 3d 202, 214 (CA2 2015) (Leval,\nJ.) (“The more the appropriator is using the copied material\nfor new, transformative purposes, the more it serves copy-\nright’s goal of enriching public knowledge and the less\nlikely it is that the appropriation will serve as a substitute\nfor the original or its plausible derivatives, shrinking the\nprotected market opportunities of the copyrighted work”).\n\n——————\n6 The authors of the Copyright Act of 1976 included the language,\n\n“ ‘whether such use is of a commercial nature or is for non-profit educa-\ntional purposes,’ ” in the first fair use factor “to state explicitly” that, “as\nunder the present law, the commercial or non-profit character of an ac-\ntivity, while not conclusive with respect to fair use, can and should be\nweighed along with other factors.” H. R. Rep. No. 94–1476, p. 66 (1976).\n\n[PDF page 25]\nCite as: 598 U. S. ____ (2023)                    19\n\nOpinion of the Court\n\nA use that shares the purpose of a copyrighted work, by con-\ntrast, is more likely to provide “the public with a substantial\nsubstitute for matter protected by the [copyright owner’s]\ninterests in the original wor[k] or derivatives of [it],” id., at\n207, which undermines the goal of copyright.\nIn a narrower sense, a use may be justified because copy-\ning is reasonably necessary to achieve the user’s new pur-\npose. Parody, for example, “needs to mimic an original to\nmake its point.” Campbell, 510 U. S., at 580–581. Simi-\nlarly, other commentary or criticism that targets an origi-\nnal work may have compelling reason to “ ‘conjure up’ ” the\noriginal by borrowing from it. Id., at 588.7 An independent\njustification like this is particularly relevant to assessing\nfair use where an original work and copying use share the\nsame or highly similar purposes, or where wide dissemina-\ntion of a secondary work would otherwise run the risk of\nsubstitution for the original or licensed derivatives of it.\nSee id., at 580, n. 14; Harper & Row, 471 U. S., at 557. Once\nagain, the question of justification is one of degree. See\nLeval 1111 (“[I]t is not sufficient simply to conclude\nwhether or not justification exists. The question remains\nhow powerful, or persuasive, is the justification, because\nthe court must weigh the strength of the secondary user’s\njustification against factors favoring the copyright owner”).\nIn sum, the first fair use factor considers whether the use\nof a copyrighted work has a further purpose or different\ncharacter, which is a matter of degree, and the degree of\n\n——————\n7 Return to the example of a book review. The review’s use of quoted\n\nmaterial may be justified in both the broad and the narrower senses.\nFirst, the use is likely to serve a different purpose than the material it-\nself. See n. 4, supra. Second, there may be compelling reason to borrow\nfrom the original to achieve that purpose because the review targets the\nmaterial for comment or criticism. But again, the question of justifica-\ntion will depend on the individual use or uses. See Patry, Fair Use §3:1,\nat 129–130. Even book reviews are not entitled to a presumption of fair-\nness. Campbell, 510 U. S., at 581.\n\n[PDF page 26]\n20    ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nOpinion of the Court\n\ndifference must be balanced against the commercial nature\nof the use. If an original work and a secondary use share\nthe same or highly similar purposes, and the secondary use\nis of a commercial nature, the first factor is likely to weigh\nagainst fair use, absent some other justification for copy-\ning.8\n2\nThe fair use provision, and the first factor in particular,\nrequires an analysis of the specific “use” of a copyrighted\nwork that is alleged to be “an infringement.” §107. The\nsame copying may be fair when used for one purpose but\nnot another. See Campbell, 510 U. S., at 585 (contrasting\nthe use of a copyrighted work “to advertise a product, even\nin a parody,” with “the sale of a parody for its own sake, let\nalone one performed a single time by students in school”);\nSony Corp. of America v. Universal City Studios, Inc., 464\nU. S. 417, 449–451 (1984) (contrasting the recording of TV\n\n\n——————\n8 Consider, for example, this Court’s analysis of the first factor in\n\nGoogle LLC v. Oracle America, Inc., 593 U. S. ___ (2021). Google stressed\nthat “[t]he fact that computer programs are primarily functional makes\nit difficult to apply traditional copyright concepts in that technological\nworld.” Id., at ___ (slip op., at 35). Still, in evaluating the purpose and\ncharacter of Google’s use of Sun Microsystems’ code, the Court looked,\nfirst, to whether the purpose of the use was significantly different from\nthat of the original; and, second, to the strength of other justifications for\nthe use. Although Google’s use was commercial in nature, it copied Sun’s\ncode, which was “created for use in desktop and laptop computers,” “only\ninsofar as needed to include tasks that would be useful in\nsmartphone[s].” Id., at ___ (slip op., at 26). That is, Google put Sun’s\ncode to use in the “distinct and different computing environment” of its\nown Android platform, a new system created for new products. Ibid.\nMoreover, the use was justified in that context because “shared inter-\nfaces are necessary for different programs to speak to each other” and\nbecause “reimplementation of interfaces is necessary if programmers are\nto be able to use their acquired skills.” Ibid.; see also id., at ___ (slip op.,\nat 8).\n\n[PDF page 27]\nCite as: 598 U. S. ____ (2023)                    21\n\nOpinion of the Court\n\n“for a commercial or profit-making purpose” with “private\nhome use”).\nHere, Goldsmith’s copyrighted photograph has been used\nin multiple ways: After Goldsmith licensed the photograph\nto Vanity Fair to serve as an artist reference, Warhol used\nthe photograph to create the Vanity Fair illustration and\nthe other Prince Series works. Vanity Fair then used the\nphotograph, pursuant to the license, when it published\nWarhol’s illustration in 1984. Finally, AWF used the pho-\ntograph when it licensed an image of Warhol’s Orange\nPrince to Condé Nast in 2016. Only that last use, however,\nAWF’s commercial licensing of Orange Prince to Condé\nNast, is alleged to be infringing.9 We limit our analysis ac-\ncordingly. In particular, the Court expresses no opinion as\nto the creation, display, or sale of any of the original Prince\nSeries works.10\n——————\n9 AWF sought a declaratory judgment that would cover the original\n\nPrince Series works, but Goldsmith has abandoned all claims to relief\nother than her claim as to the 2016 Condé Nast license and her request\nfor prospective relief as to similar commercial licensing. Brief for Re-\nspondents 3, 17–18; Tr. of Oral Arg. 80–82.\n10 The dissent, however, focuses on a case that is not before the Court.\n\nNo, not whether Francis Bacon would have made fair use of Velásquez’s\npainting, had American copyright law applied in Europe with a term of\n300 years post mortem auctoris. But cf. post, at 32–34 (opinion of KAGAN,\nJ.). Rather, Congress has directed courts to examine the purpose and\ncharacter of the challenged “use.” 17 U. S. C. §107(1). Yet the dissent\nassumes that any and all uses of an original work entail the same first-\nfactor analysis based solely on the content of a secondary work. This\nassumption contradicts the fair use statute and this Court’s precedents.\nSee supra, at 20–21. Had AWF’s use been solely for teaching purposes,\nthat clearly would affect the analysis, and the statute permits no other\nconclusion. Preferring not to focus on the specific use alleged to infringe\nGoldsmith’s copyright, the dissent begins with a sleight of hand, see post,\nat 1, n. 1, and continues with a false equivalence between AWF’s com-\nmercial licensing and Warhol’s original creation. The result is a series\nof misstatements and exaggerations, from the dissent’s very first sen-\n\n[PDF page 28]\n22    ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nOpinion of the Court\n\nA typical use of a celebrity photograph is to accompany\nstories about the celebrity, often in magazines. For exam-\nple, Goldsmith licensed her photographs of Prince to illus-\ntrate stories about Prince in magazines such as Newsweek,\nVanity Fair, and People. Supra, at 3–6. She even licensed\nher photographs for that purpose after Prince died in 2016.\nSupra, at 7. A photographer may also license her creative\nwork to serve as a reference for an artist, like Goldsmith\ndid in 1984 when Vanity Fair wanted an image of Prince\ncreated by Warhol to illustrate an article about Prince. As\nnoted by the Court of Appeals, Goldsmith introduced “un-\ncontroverted” evidence “that photographers generally li-\ncense others to create stylized derivatives of their work in\nthe vein of the Prince Series.” 11 F. 4th, at 50; see 2 App.\n291–299. In fact, Warhol himself paid to license photo-\ngraphs for some of his artistic renditions. Such licenses, for\nphotographs or derivatives of them, are how photographers\nlike Goldsmith make a living. They provide an economic\nincentive to create original works, which is the goal of copy-\nright.\nIn 2016, AWF licensed an image of Orange Prince to\nCondé Nast to appear on the cover of a commemorative edi-\ntion magazine about Prince. The edition, titled “The Genius\nof Prince,” celebrates the life and work of “Prince Rogers\nNelson, 1958–2016.” It is undisputed here that the edition\nis “devoted to Prince.” 2 App. 352. In addition to AWF’s\nimage on the cover, the magazine contains numerous con-\ncert and studio photographs of Prince. In that context, the\npurpose of the image is substantially the same as that of\nGoldsmith’s photograph. Both are portraits of Prince used\n\n\n——————\ntence, post, at 1 (“Today, the Court declares that Andy Warhol’s eye-pop-\nping silkscreen of Prince . . . is (in copyright lingo) not ‘transformative’ ”),\nto its very last, post, at 36 (“[The majority opinion] will make our world\npoorer”).\n\n[PDF page 29]\nCite as: 598 U. S. ____ (2023)                     23\n\nOpinion of the Court\n\nin magazines to illustrate stories about Prince.11 Such “en-\nvironment[s]” are not “distinct and different.” Google, 593\n\n——————\n11 The Court of Appeals observed that the “purpose and function of the\n\ntwo works at issue here is identical, not merely in the broad sense that\nthey are created as works of visual art, but also in the narrow but essen-\ntial sense that they are portraits of the same person.” 11 F. 4th, at 42\n(footnote omitted). This Court goes somewhat “further and examine[s]\nthe copying’s more specifically described ‘purpose[s]’ ” in the context of\nthe particular use at issue (here, in a magazine about Prince). Google,\n593 U. S., at ___ (slip op., at 25). The Court does not define the purpose\nas simply “commercial” or “commercial licensing.” Post, at 18, 20, n. 7,\n25, n. 8 (KAGAN, J., dissenting). Nor does the Court view Goldsmith’s\nphotograph and Warhol’s illustration as “fungible products in the maga-\nzine market.” Post, at 18; see post, at 10. Rather, the Court finds signif-\nicant the degree of similarity between the specific purposes of the origi-\nnal work and the secondary use at issue.\nAccording to the dissent, the fact that a magazine editor might prefer\none image to the other must mean the secondary use is transformative,\neither because it has a different aesthetic or conveys a different message.\nPost, at 10. The Court, because it fails to understand the difference, does\nnot have “much of a future in magazine publishing,” the dissent chides.\nIbid. While the dissent is probably correct about the Court’s business\nprospects, the editors of People, Rolling Stone, and Time chose a variety\nof different photos of Prince for their memorial issues. See fig. 5, supra.\nPortrait photos, in fact. Some black and white; some depicting Prince’s\n“ ‘corporeality’ ”; some “realistic” or “humanistic.” Post, at 9, 16 (KAGAN,\nJ., dissenting). These variations in aesthetics did not stop the photos\nfrom serving the same essential purpose of depicting Prince in a maga-\nzine commemorating his life and career.\nFortunately, the dissent’s “magazine editor” test does not have much\nof a future in fair use doctrine. The flaw in the dissent’s logic is simple:\nIf all that mattered under the first factor were whether a buyer was\n“drawn aesthetically” to a secondary work (instead of the pre-existing\nwork it adapted) or whether the buyer preferred “to convey the message\nof ” the secondary work, post, at 10, then every derivative work would\nqualify. The New Yorker might prefer an unauthorized sequel to a short\nstory, rather than the original, but that does not mean the purpose and\ncharacter of the use would weigh in its favor. Similarly, a rap label might\nprefer 2 Live Crew’s song, rather than Orbison’s original, based on the\nnew sound and lyrics (i.e., new aesthetic and message), but that was not\nenough in Campbell, and it is not enough here.\n\n[PDF page 30]\n24    ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nOpinion of the Court\n\nU. S., at ___ (slip op., at 26). AWF’s licensing of the Orange\nPrince image thus “ ‘supersede[d] the objects,’ ” Campbell,\n510 U. S., at 579, i.e., shared the objectives, of Goldsmith’s\nphotograph, even if the two were not perfect substitutes.12\nThe use also “is of a commercial nature.” §107(1). Just\nas Goldsmith licensed her photograph to Vanity Fair for\n$400, AWF licensed Orange Prince to Condé Nast for\n$10,000. The undisputed commercial character of AWF’s\nuse, though not dispositive, “tends to weigh against a find-\ning of fair use.” Harper & Row, 471 U. S., at 562.13\n——————\n12 In this way, the first factor relates to the fourth, market effect. See\n\nCampbell, 510 U. S., at 591; cf. also Harper & Row, 471 U. S., at 568\n(“The excerpts were employed as featured episodes in a story about the\nNixon pardon—precisely the use petitioners had licensed to Time”).\nWhile the first factor considers whether and to what extent an original\nwork and secondary use have substitutable purposes, the fourth factor\nfocuses on actual or potential market substitution. Under both factors,\nthe analysis here might be different if Orange Prince appeared in an art\nmagazine alongside an article about Warhol. Brief for United States as\nAmicus Curiae 33.\nWhile keenly grasping the relationship between The Two Lolitas, the\ndissent fumbles the relationship between the first and fourth fair use\nfactors. Under today’s decision, as before, the first factor does not ask\nwhether a secondary use causes a copyright owner economic harm. Cf.\npost, at 21 (opinion of KAGAN, J.). There is, however, a positive associa-\ntion between the two factors: A secondary use that is more different in\npurpose and character is less likely to usurp demand for the original\nwork or its derivatives, as the Court has explained, see Campbell, 519\nU. S., at 591. This relationship should be fairly obvious. But see post, at\n22 (KAGAN, J., dissenting) (suggesting that the first factor can favor only\nthe user and the fourth factor only the copyright owner). Still, the rela-\ntionship is not absolute. For example, copies for classroom use might\nfulfill demand for an original work. The first factor may still favor the\ncopyist, even if the fourth factor is shown not to. At the same time, other\nforms of straight copying may be fair if a strong showing on the fourth\nfactor outweighs a weak showing on the first.\n13 The dissent misconstrues the role of commercialism in this analysis.\n\nThe Court does not hold that “[a]ll that matters is that [AWF] and the\npublisher entered into a licensing transaction”; or that the first-factor\n\n[PDF page 31]\nCite as: 598 U. S. ____ (2023)                      25\n\nOpinion of the Court\n\nTaken together, these two elements—that Goldsmith’s\nphotograph and AWF’s 2016 licensing of Orange Prince\nshare substantially the same purpose, and that AWF’s use\nof Goldsmith’s photo was of a commercial nature—counsel\nagainst fair use, absent some other justification for copying.\nThat is, although a use’s transformativeness may outweigh\nits commercial character, here, both elements point in the\nsame direction.14\nThe foregoing does not mean, however, that derivative\nworks borrowing heavily from an original cannot be fair\n\n——————\ninquiry “should disregard Warhol’s creative contributions because he li-\ncensed his work”; or that an artist may not “market even a transforma-\ntive follow-on work.” Post, at 3, 19, 34 (opinion of KAGAN, J.). Instead,\nconsistent with the statute, “whether [a] use is of a commercial nature\nor is for nonprofit educational purposes” is one element of the first factor,\n§107(1); it does not dispose of that factor, much less the fair use inquiry.\nAs this opinion makes clear, the commercial character of a secondary use\nshould be weighed against the extent to which the use is transformative\nor otherwise justified. Supra, at 18 (citing Campbell, 510 U. S., at 579–\n580, 585); see also supra, at 12, 19–20, and n. 8, 25; infra, at 34–35.\n14 The dissent contends that the Court gives “little role” to “the key\n\nterm ‘character.’ ” Post, at 19 (opinion of KAGAN, J.). This is somewhat\npuzzling, as the Court has previously employed “character” to encompass\nexactly what the dissent downplays: “ ‘the commercial or nonprofit char-\nacter of an activity.’ ” Sony Corp. of America v. Universal City Studios,\nInc., 464 U. S. 417, 448–449 (1984) (quoting H. R. Rep. No. 94–1476, at\n66); see also Campbell, 510 U. S., at 572, 584–585 (repeatedly referring\nto “commercial character”). Rather than looking to this case law, the\ndissent looks up the word “character” in a dictionary. See post, at 13.\nBut the dissent’s preferred definition—“a thing’s ‘main or essential na-\nture[,] esp[ecially] as strongly marked and serving to distinguish,’ ” post,\nat 20 (quoting Webster’s Third New International Dictionary 376\n(1976))—helps Goldsmith, not AWF. Even this definition does not sup-\nport the implication that “character” is determined by any aesthetic dis-\ntinctiveness, such as the addition of any new expression. Instead, it is\nthe “main or essential nature” that must be “strongly marked and serv[e]\nto distinguish.” So return to Orange Prince on the cover of the Condé\nNast issue commemorating Prince, see fig. 5, supra, and ask, what is the\nmain or essential nature of the secondary use of Goldsmith’s photograph\nin that context?\n\n[PDF page 32]\n26   ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nOpinion of the Court\n\nuses. In Google, the Court suggested that “[a]n ‘artistic\npainting’ might, for example, fall within the scope of fair\nuse even though it precisely replicates a copyrighted ‘adver-\ntising logo to make a comment about consumerism.’ ” 593\nU. S., at ___–___ (slip op., at 24–25) (quoting 4 M. Nimmer\n& D. Nimmer, Copyright §13.05[A][1][b] (2019), in turn\nquoting N. Netanel, Making Sense of Fair Use, 15 Lewis &\nClark L. Rev. 715, 746 (2011) (some internal quotation\nmarks omitted)). That suggestion refers to Warhol’s works\nthat incorporate advertising logos, such as the Campbell’s\nSoup Cans series. See fig. 7, infra.\nYet not all of Warhol’s works, nor all uses of them, give\nrise to the same fair use analysis. In fact, Soup Cans well\nillustrates the distinction drawn here. The purpose of\nCampbell’s logo is to advertise soup. Warhol’s canvases do\n\n\n\n\nFigure 7. A print based on the Campbell’s soup can, one of\nWarhol’s works that replicates a copyrighted advertising logo.\n\n[PDF page 33]\nCite as: 598 U. S. ____ (2023)                      27\n\nOpinion of the Court\n\nnot share that purpose. Rather, the Soup Cans series uses\nCampbell’s copyrighted work for an artistic commentary on\nconsumerism, a purpose that is orthogonal to advertising\nsoup. The use therefore does not supersede the objects of\nthe advertising logo.15\nMoreover, a further justification for Warhol’s use of\nCampbell’s logo is apparent. His Soup Cans series targets\nthe logo. That is, the original copyrighted work is, at least\nin part, the object of Warhol’s commentary. It is the very\nnature of Campbell’s copyrighted logo—well known to the\npublic, designed to be reproduced, and a symbol of an every-\nday item for mass consumption—that enables the commen-\ntary. Hence, the use of the copyrighted work not only serves\na completely different purpose, to comment on consumer-\nism rather than to advertise soup, it also “conjures up” the\noriginal work to “she[d] light” on the work itself, not just\nthe subject of the work. Campbell, 510 U. S., at 579, 588.16\nHere, by contrast, AWF’s use of Goldsmith’s photograph\ndoes not target the photograph, nor has AWF offered an-\nother compelling justification for the use. See infra, at 34–\n35, and nn. 20–21.\n\n——————\n15 The situation might be different if AWF licensed Warhol’s Soup Cans\n\nto a soup business to serve as its logo. That use would share much the\nsame purpose of Campbell’s logo, even though Soup Cans has some new\nmeaning or message. This hypothetical, though fanciful, is parallel to\nthe situation here: Both Goldsmith and AWF sold images of Prince\n(AWF’s copying Goldsmith’s) to magazines to illustrate stories about the\ncelebrity, which is the typical use made of Goldsmith’s photographs.\n16 The dissent either does not follow, or chooses to ignore, this analysis.\n\nThe point is not simply that the Soup Cans series comments on consumer\nculture, similar to how Warhol’s celebrity images comment on celebrity\nculture. Post, at 15 (opinion of KAGAN, J.). Rather, as the discussion\nmakes clear, the degree of difference in purpose and character between\nCampbell’s soup label and Warhol’s painting is nearly absolute. Plus,\nWarhol’s use targets Campbell’s logo, at least in part. These features\n(which are absent in this case) strengthen Warhol’s claim to fairness in\ncopying that logo in a painting.\n\n[PDF page 34]\n28   ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nOpinion of the Court\n\nB\nAWF contends, however, that the purpose and character\nof its use of Goldsmith’s photograph weighs in favor of fair\nuse because Warhol’s silkscreen image of the photograph,\nlike the Campbell’s Soup Cans series, has a new meaning\nor message. The District Court, for example, understood\nthe Prince Series works to portray Prince as “an iconic,\nlarger-than-life figure.” 382 F. Supp. 3d, at 326. AWF also\nasserts that the works are a comment on celebrity. In par-\nticular, “Warhol’s Prince Series conveys the dehumanizing\nnature of celebrity.” Brief for Petitioner 44. According to\nAWF, that new meaning or message, which the Court of Ap-\npeals ignored, makes the use “transformative” in the fair\nuse sense. See id., at 44–48. We disagree.\n1\nCampbell did describe a transformative use as one that\n“alter[s] the first [work] with new expression, meaning, or\nmessage.” 510 U. S., at 579; see also Google, 593 U. S., at\n___ (slip op., at 24). That description paraphrased Judge\nLeval’s law review article, which referred to “new infor-\nmation, new aesthetics, new insights and understandings.”\nLeval 1111. (Judge Leval contrasted such additions with\nsecondary uses that “merely repackag[e]” the original.\nIbid.) But Campbell cannot be read to mean that §107(1)\nweighs in favor of any use that adds some new expression,\nmeaning, or message.\nOtherwise, “transformative use” would swallow the copy-\nright owner’s exclusive right to prepare derivative works.\nMany derivative works, including musical arrangements,\nfilm and stage adaptions, sequels, spinoffs, and others that\n“recast, transfor[m] or adap[t]” the original, §101, add new\nexpression, meaning or message, or provide new infor-\nmation, new aesthetics, new insights and understandings.\nThat is an intractable problem for AWF’s interpretation of\ntransformative use. The first fair use factor would not\n\n[PDF page 35]\nCite as: 598 U. S. ____ (2023)                     29\n\nOpinion of the Court\n\nweigh in favor of a commercial remix of Prince’s “Purple\nRain” just because the remix added new expression or had\na different aesthetic. A film or musical adaptation, like that\nof Alice Walker’s The Color Purple, might win awards for\nits “significant creative contribution”; alter the meaning of\na classic novel; and add “important new expression,” such\nas images, performances, original music, and lyrics. Post,\nat 11, 23 (KAGAN, J., dissenting) (internal quotation marks\nomitted). But that does not in itself dispense with the need\nfor licensing.17\nCampbell is again instructive. 2 Live Crew’s version of\nOrbison’s song easily conveyed a new meaning or message.\nIt also had a different aesthetic. Yet the Court went fur-\nther, examining whether and to what extent 2 Live Crew’s\nsong had the parodic purpose of “commenting on the origi-\nnal or criticizing it.” 510 U. S., at 583. Parody is, of course,\na kind of message. Moreover, the Court considered what\nthe words of the songs might have meant to determine\nwhether parody “reasonably could be perceived.” Ibid. But\nnew meaning or message was not sufficient. If it had been,\nthe Court could have made quick work of the first fair use\nfactor. Instead, meaning or message was simply relevant\nto whether the new use served a purpose distinct from the\noriginal, or instead superseded its objects. That was, and\nis, the “central” question under the first factor. Id., at 579.\n——————\n17 The dissent is stumped. Buried in a conclusory footnote, it suggests\n\nthat the fourth fair use factor alone takes care of derivative works like\nbook-to-film adaptations. Post, at 12, n. 5. This idea appears to come\nfrom a Hail Mary lobbed by AWF when it got caught in the same bind.\nSee Tr. of Oral Arg. 15–16. The Court is aware of no authority for the\nproposition that the first factor favors such uses (on the dissent’s view,\nthe first factor must, because the use modifies the expressive content of\nan original work), leaving it to the fourth factor to ensure that §106(2) is\nnot a dead letter. Certainly Google, which merely noted in passing that\n“[m]aking a film of an author’s book may . . . mean potential or presumed\nlosses to the copyright owner,” did not hold as much. 593 U. S., at ___\n(slip op., at 30); see id., at ___–___, ___–___ (slip op., at 24–28, 30–35).\n\n[PDF page 36]\n30   ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nOpinion of the Court\n\nThe dissent commits the same interpretive error as AWF:\nIt focuses on Campbell’s paraphrase, yet ignores the rest of\nthat decision’s careful reasoning. Indeed, upon reading the\ndissent, someone might be surprised to learn that Campbell\nwas about parody at all. Had expert testimony confirmed\nthe obvious fact that 2 Live Crew’s “Pretty Woman” differed\nin aesthetics and meaning from Orbison’s original, that\nwould have been the end of the dissent’s analysis. See post,\nat 14–17 (opinion of KAGAN, J.). Not the Court’s, however.\nCampbell was the culmination of a long line of cases and\nscholarship about parody’s claim to fairness in borrowing.\n“For purposes of copyright law,” the Court explained, “the\nheart of any parodist’s claim to quote from existing material\nis the use of some elements of a prior author’s composition\nto create a new one that, at least in part, comments on that\nauthor’s works.” 510 U. S., at 580. Campbell thus drew a\nnuanced distinction between parody and satire: While par-\nody cannot function unless it conjures up the original, “sat-\nire can stand on its own two feet and so requires justifica-\ntion for . . . borrowing.” Id., at 580–581. The objective\nmeaning or message of 2 Live Crew’s song was relevant to\nthis inquiry into the reasons for copying, but any “new ex-\npression, meaning, or message” was not the test.18\nWhat role meaning or message played in the Court of Ap-\npeals’ analysis here is not entirely clear. The court correctly\n——————\n18 The dissent makes a similar mistake with Google: It fails to read the\n\ndecision as a whole. So while the dissent claims that the “[Google] Court\nwould have told this one to go back to school,” it might be easier just to\ngo back and read Google. Post, at 2 (opinion of KAGAN, J.). The Court\ndid not hold that any secondary use that is innovative, in some sense, or\nthat a judge or Justice considers to be creative progress consistent with\nthe constitutional objective of copyright, is thereby transformative. The\nCourt instead emphasized that Google used Sun’s code in a “distinct and\ndifferent” context, and “only insofar as needed” or “necessary” to achieve\nGoogle’s new purpose. Google, 593 U. S., at ___ (slip op., at 26); see also\nn. 8, supra. In other words, the same concepts of use and justification\nthat the Court relied on in Google are the ones that it applies today.\n\n[PDF page 37]\nCite as: 598 U. S. ____ (2023)                      31\n\nOpinion of the Court\n\nrejected the idea “that any secondary work that adds a new\naesthetic or new expression to its source material is neces-\nsarily transformative.” 11 F. 4th, at 38–39. It also ap-\npeared correctly to accept that meaning or message is rele-\nvant to, but not dispositive of, purpose. See id., at 41 (“[T]he\nsecondary work itself must reasonably be perceived as em-\nbodying a distinct artistic purpose, one that conveys a new\nmeaning or message separate from its source material”);\nid., at 42 (“[T]he judge must examine whether the second-\nary work’s use of its source material is in service of a fun-\ndamentally different and new artistic purpose and charac-\nter, [which] must, at a bare minimum, comprise something\nmore than the imposition of another artist’s style on the pri-\nmary work . . . ” (internal quotation marks omitted)).\nElsewhere, however, the Court of Appeals stated that\n“the district judge should not assume the role of art critic\nand seek to ascertain the intent behind or meaning of the\nworks at issue.” Id., at 41. That statement is correct in\npart. A court should not attempt to evaluate the artistic\nsignificance of a particular work. See Bleistein v. Don-\naldson Lithographing Co., 188 U. S. 239, 251 (1903)\n(Holmes, J.) (“It would be a dangerous undertaking for per-\nsons trained only to the law to constitute themselves final\njudges of the worth of [a work], outside of the narrowest and\nmost obvious limits”).19 Nor does the subjective intent of\n——————\n19 The dissent demonstrates the danger of this approach. On its view,\n\nthe first fair use factor favors AWF’s use of Goldsmith’s photograph\nsimply because Warhol created worthy art. Goldsmith’s original work,\nby contrast, is just an “old photo,” one of Warhol’s “templates.” Post, at\n2, 17 (opinion of KAGAN, J.). In other words, the dissent (much like the\nDistrict Court) treats the first factor as determined by a single fact: “It’s\na Warhol.” This Court agrees with the Court of Appeals that such logic\nwould create a kind of privilege that has no basis in copyright law. See\n11 F. 4th, at 43. Again, the Court does not deny that Warhol was a major\nfigure in American art. But it leaves the worth of his works to the critics.\nCompare, e.g., D. Antin, Warhol: The Silver Tenement, in Pop Art: A\n\n[PDF page 38]\n32    ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nOpinion of the Court\n\nthe user (or the subjective interpretation of a court) deter-\nmine the purpose of the use. But the meaning of a second-\nary work, as reasonably can be perceived, should be consid-\nered to the extent necessary to determine whether the\npurpose of the use is distinct from the original, for instance,\nbecause the use comments on, criticizes, or provides other-\nwise unavailable information about the original, see, e.g.,\nAuthors Guild, 804 F. 3d, at 215–216.\n2\nThe District Court determined that “[t]he Prince Series\nworks can reasonably be perceived to have transformed\nPrince from a vulnerable, uncomfortable person to an\niconic, larger-than-life figure.” 382 F. Supp. 3d, at 326. To\nmake that determination, the District Court relied, in part,\non testimony by Goldsmith that her photographs of Prince\nshow that he “is ‘not a comfortable person’ and that he is ‘a\nvulnerable human being.’ ” Ibid. An expert on Warhol,\nmeanwhile, testified that the Prince Series works depict\n“Prince as a kind of icon or totem of something,” a “mask-\nlike simulacrum of his actual existence.” 1 App. 249, 257.\nThe Court of Appeals noted, correctly, that “whether a\nwork is transformative cannot turn merely on the stated or\nperceived intent of the artist or the meaning or impression\nthat a critic—or for that matter, a judge—draws from the\nwork.” 11 F. 4th, at 41. “[O]therwise, the law may well\n\n——————\nCritical History 287 (S. Madoff ed. 1997), with R. Hughes, The Shock of\nthe New 346–351 (2d ed. 1991). Whatever the contribution of Orange\nPrince, Goldsmith’s photograph is part of that contribution. A court need\nnot, indeed should not, assess the relative worth of two works to decide\na claim of fair use. Otherwise, “some works of genius would be sure to\nmiss appreciation,” and, “[a]t the other end, copyright would be denied\nto [works] which appealed to a public less educated than the judge.”\nBleistein, 188 U. S., at 251–252 (Holmes, J.). That Goldsmith’s photo-\ngraph “had [its] worth and [its] success is sufficiently shown by the desire\nto reproduce [it] without regard to [her] rights.” Id., at 252.\n\n[PDF page 39]\nCite as: 598 U. S. ____ (2023)           33\n\nOpinion of the Court\n\n‘recogniz[e] any alteration as transformative.’ ” Ibid. (quot-\ning 4 Nimmer, Copyright §13.05[B][6]). Whether the pur-\npose and character of a use weighs in favor of fair use is,\ninstead, an objective inquiry into what use was made, i.e.,\nwhat the user does with the original work.\nGranting the District Court’s conclusion that Orange\nPrince reasonably can be perceived to portray Prince as\niconic, whereas Goldsmith’s portrayal is photorealistic, that\ndifference must be evaluated in the context of the specific\nuse at issue. The use is AWF’s commercial licensing of Or-\nange Prince to appear on the cover of Condé Nast’s special\ncommemorative edition. The purpose of that use is, still, to\nillustrate a magazine about Prince with a portrait of Prince.\nAlthough the purpose could be more specifically described\nas illustrating a magazine about Prince with a portrait of\nPrince, one that portrays Prince somewhat differently from\nGoldsmith’s photograph (yet has no critical bearing on her\nphotograph), that degree of difference is not enough for the\nfirst factor to favor AWF, given the specific context of the\nuse.\nTo hold otherwise would potentially authorize a range of\ncommercial copying of photographs, to be used for purposes\nthat are substantially the same as those of the originals. As\nlong as the user somehow portrays the subject of the photo-\ngraph differently, he could make modest alterations to the\noriginal, sell it to an outlet to accompany a story about the\nsubject, and claim transformative use. Many photographs\nwill be open to various interpretations. A subject as open\nto interpretation as the human face, for example, reasona-\nbly can be perceived as conveying several possible mean-\nings. The application of an artist’s characteristic style to\nbring out a particular meaning that was available in the\nphotograph is less likely to constitute a “further purpose”\nas Campbell used the term. 510 U. S., at 579.\n\n[PDF page 40]\n34   ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nOpinion of the Court\n\nAWF asserts another, albeit related, purpose, which is to\ncomment on the “dehumanizing nature” and “effects” of ce-\nlebrity. Brief for Petitioner 44, 51. No doubt, many of War-\nhol’s works, and particularly his uses of repeated images,\ncan be perceived as depicting celebrities as commodities.\nBut again, even if such commentary is perceptible on the\ncover of Condé Nast’s tribute to “Prince Rogers Nelson,\n1958–2016,” on the occasion of the man’s death, AWF has a\nproblem: The asserted commentary is at Campbell’s lowest\nebb. Because it “has no critical bearing on” Goldsmith’s\nphotograph,20 the commentary’s “claim to fairness in bor-\nrowing from” her work “diminishes accordingly (if it does\nnot vanish).” 510 U. S., at 580.21 The commercial nature of\nthe use, on the other hand, “loom[s] larger.” Ibid.\n\n\n\n——————\n20 At no point in this litigation has AWF maintained that any of the\n\nPrince Series works, let alone Orange Prince on the cover of the 2016\nCondé Nast special edition, comment on, criticize, or otherwise target\nGoldsmith’s photograph. That makes sense, given that the photograph\nwas unpublished when Goldsmith licensed it to Vanity Fair, and that\nneither Warhol nor Vanity Fair selected the photograph, which was in-\nstead provided by Goldsmith’s agency.\n21 The dissent wonders: Why does targeting matter? See post, at 24\n\n(opinion of KAGAN, J.). The reason, as this opinion explains, is the first\nfactor’s attention to justification. Supra, at 17–20, and nn. 7–8, 29–30,\nand n. 18 (citing Campbell, 510 U. S., at 580–581; Google, 593 U. S., at\n___ (slip op., at 26)). Compare, for example, a film adaptation of Gone\nWith the Wind with a novel, The Wind Done Gone, that “inverts” the\noriginal’s “portrait of race relations” to expose its “romantic, idealized”\nportrayal of the antebellum South. SunTrust Bank v. Houghton Mifflin\nCo., 268 F. 3d 1257, 1270 (CA11 2001); id., at 1280 (Marcus, J., specially\nconcurring). Or, to build from one of the artistic works the dissent\nchooses to feature, consider a secondary use that borrows from Manet’s\nOlympia to shed light on the original’s depiction of race and sex. See R.\nStorr & C. Armstrong, Lunch With Olympia (2016). Although targeting\nis not always required, fair use is an affirmative defense, and AWF bears\nthe burden to justify its taking of Goldsmith’s work with some reason\nother than, “I can make it better.”\n\n[PDF page 41]\nCite as: 598 U. S. ____ (2023)                     35\n\nOpinion of the Court\n\nHere, the circumstances of AWF’s 2016 licensing out-\nweigh its diminished claim to fairness in copying under the\nfirst factor. Like satire that does not target an original\nwork, AWF’s asserted commentary “can stand on its own\ntwo feet and so requires justification for the very act of bor-\nrowing.” Id., at 581. Moreover, because AWF’s commercial\nuse of Goldsmith’s photograph to illustrate a magazine\nabout Prince is so similar to the photograph’s typical use, a\nparticularly compelling justification is needed. Yet AWF\noffers no independent justification, let alone a compelling\none, for copying the photograph, other than to convey a new\nmeaning or message. As explained, that alone is not\nenough for the first factor to favor fair use.\nCopying might have been helpful to convey a new mean-\ning or message. It often is. But that does not suffice under\nthe first factor. Nor does it distinguish AWF from a long\nlist of would-be fair users: a musician who finds it helpful\nto sample another artist’s song to make his own, a play-\nwright who finds it helpful to adapt a novel, or a filmmaker\nwho would prefer to create a sequel or spinoff, to name just\na few.22 As Judge Leval has explained, “[a] secondary au-\nthor is not necessarily at liberty to make wholesale takings\nof the original author’s expression merely because of how\nwell the original author’s expression would convey the sec-\nondary author’s different message.” Authors Guild, 804\nF. 3d, at 215.\n\n——————\n22 The dissent oddly suggests that under the Court’s opinion, the first\n\nfair use factor favors such uses. See post, at 12, n. 5. This ignores, well,\npretty much the entire opinion. See supra, at 14–17, 22–24, 26–27, 28–\n29, 32–33 (degree of difference in purpose and character); supra, at 18,\n24 (commercial nature); supra, at 17–19, 27, 30, 34–35 (justification). In\nparticular, the Court does not hold that the first factor favors any user\nwho “wants to reach different buyers, in different markets, consuming\ndifferent products.” Post, at 13, n. 5 (opinion of KAGAN, J.). The dissent\napparently deduces this proposition from its inverse, which is a common\nlogical fallacy.\n\n[PDF page 42]\n36   ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nOpinion of the Court\n\n3\nThe dissent would rather not debate these finer points.\nSee post, at 4, n. 2 (opinion of KAGAN, J.). It offers no theory\nof the relationship between transformative uses of original\nworks and derivative works that transform originals. No\nreason why AWF was justified in using Goldsmith’s original\nwork in this specific instance. And no limiting principle for\nits apparent position that any use that is creative prevails\nunder the first fair use factor. Instead, the dissent makes\nthe simple (and obvious) point that restrictions on copying\ncan inhibit follow-on works. “ ‘Nothing comes from noth-\ning,’ ” the dissent observes, “ ‘nothing ever could.’ ” Post, at\n11. So somewhere in the copyright statute, there must be\nan “escape valve” to create something good. Post, at 12. If\nAWF must pay Goldsmith to use her creation, the dissent\nclaims, this will “stifle creativity of every sort,” “thwart the\nexpression of new ideas and the attainment of new\nknowledge,” and “make our world poorer.” Post, at 36.\nThese claims will not age well. It will not impoverish our\nworld to require AWF to pay Goldsmith a fraction of the\nproceeds from its reuse of her copyrighted work. Recall,\npayments like these are incentives for artists to create orig-\ninal works in the first place. Nor will the Court’s decision,\nwhich is consistent with longstanding principles of fair use,\nsnuff out the light of Western civilization, returning us to\nthe Dark Ages of a world without Titian, Shakespeare, or\nRichard Rodgers. The dissent goes on at length about the\nbasic premise that copyright (like other forms of intellectual\nproperty) involves a tradeoff between stimulating innova-\ntive activity, on the one hand, and allowing follow-on inno-\nvation, on the other. See post, at 11–12, and n. 4, 24–35.\nThis theme will be familiar to any student of copyright law.\nIn tracing the history of Renaissance painting, however, the\ndissent loses sight of the statute and this Court’s cases. The\nLives of the Artists undoubtedly makes for livelier reading\n\n[PDF page 43]\nCite as: 598 U. S. ____ (2023)            37\n\nOpinion of the Court\n\nthan the U. S. Code or the U. S. Reports, but as a court, we\ndo not have that luxury.\nThe dissent thus misses the forest for a tree. Its single-\nminded focus on the value of copying ignores the value of\noriginal works. It ignores the statute’s focus on the specific\nuse alleged to be infringing. See n. 10, supra. It waves\naway the statute’s concern for derivative works. Supra, at\n28–29, and n. 17. It fails to appreciate Campbell’s nuance.\nSupra, at 29–30, 34, n. 21. And it disregards this Court’s\nrepeated emphasis on justification. Supra, at 29–30, and\nn. 18, 34, n. 21.\nThe result of these omissions is an account of fair use that\nis unbalanced in theory and, perhaps relatedly, in tone.\nThe dissent’s conclusion—that whenever a use adds new\nmeaning or message, or constitutes creative progress in the\nopinion of a critic or judge, the first fair use factor weighs\nin its favor—does not follow from its basic premise. Fair\nuse instead strikes a balance between original works and\nsecondary uses based in part on objective indicia of the use’s\npurpose and character, including whether the use is com-\nmercial and, importantly, the reasons for copying.\nFinally, copyright law is replete with escape valves: the\nidea–expression distinction; the general rule that facts may\nnot receive protection; the requirement of originality; the\nlegal standard for actionable copying; the limited duration\nof copyright; and, yes, the defense of fair use, including all\nits factors, such as whether the amount taken is reasonable\nin relation to the purpose of the use. These doctrines (and\nothers) provide ample space for artists and other creators\nto use existing materials to make valuable new works.\nThey account for most, if not all, of the examples given by\nthe dissent, as well as the dissent’s own copying (and the\nCourt’s, too). If the last century of American art, literature,\nmusic, and film is any indication, the existing copyright\nlaw, of which today’s opinion is a continuation, is a powerful\nengine of creativity.\n\n[PDF page 44]\n38   ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nOpinion of the Court\n\nIII\nLynn Goldsmith’s original works, like those of other pho-\ntographers, are entitled to copyright protection, even\nagainst famous artists. Such protection includes the right\nto prepare derivative works that transform the original.\nThe use of a copyrighted work may nevertheless be fair if,\namong other things, the use has a purpose and character\nthat is sufficiently distinct from the original. In this case,\nhowever, Goldsmith’s original photograph of Prince, and\nAWF’s copying use of that photograph in an image licensed\nto a special edition magazine devoted to Prince, share sub-\nstantially the same purpose, and the use is of a commercial\nnature. AWF has offered no other persuasive justification\nfor its unauthorized use of the photograph. Therefore, the\n“purpose and character of the use, including whether such\nuse is of a commercial nature or is for nonprofit educational\npurposes,” §107(1), weighs in Goldsmith’s favor.\nThe Court has cautioned that the four statutory fair use\nfactors may not “be treated in isolation, one from another.\nAll are to be explored, and the results weighed together, in\nlight of the purposes of copyright.” Campbell, 510 U. S., at\n578. AWF does not challenge the Court of Appeals’ deter-\nminations that the second factor, “the nature of the copy-\nrighted work,” §107(2); third factor, “the amount and sub-\nstantiality of the portion used in relation to the copyrighted\nwork as a whole,” §107(3); and fourth factor, “the effect of\nthe use upon the potential market for or value of the copy-\nrighted work,” all favor Goldsmith. See 11 F. 4th, at 45–51.\nBecause this Court agrees with the Court of Appeals that\nthe first factor likewise favors her, the judgment of the\nCourt of Appeals is\nAffirmed.\n\n[PDF page 45]\nCite as: 598 U. S. ____ (2023)                  39\n\nOpinion\nAppendix      of the of\nto opinion  Court\nthe Court\n\nAPPENDIX\n\n\n\n\nAndy Warhol created 16 works based on Lynn Goldsmith’s photograph:\n14 silkscreen prints and two pencil drawings. The works are collectively\nknown as the Prince Series."
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      "content": "SOURCE: Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith\nURL: https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf\nSECTION: Gorsuch concurrence\nPDF pages: 46-51\n\n[PDF page 46]\nCite as: 598 U. S. ____ (2023)            1\n\nGORSUCH, J., concurring\n\nSUPREME COURT OF THE UNITED STATES\n_________________\n\nNo. 21–869\n_________________\n\n\nANDY WARHOL FOUNDATION FOR THE VISUAL\nARTS, INC., PETITIONER v. LYNN\nGOLDSMITH, ET AL.\nON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF\nAPPEALS FOR THE SECOND CIRCUIT\n[May 18, 2023]\n\nJUSTICE GORSUCH, with whom JUSTICE JACKSON joins,\nconcurring.\nThe question before us is a narrow one of statutory inter-\npretation. It concerns the meaning of one of four factors\nCongress has instructed courts to consult when a party in-\nvokes the affirmative defense of “fair use” to a claim of cop-\nyright infringement. The statutory factor in question re-\nquires courts to consider “the purpose and character of the\nuse.” 17 U. S. C. §107(1). The parties disagree which “pur-\npose” and “character” counts.\nOn the Foundation’s telling, the statute requires courts\nto focus on the purpose the creator had in mind when pro-\nducing his work and the character of his resulting work. So\nwhat matters in this case is that Andy Warhol intended to\napply a “ ‘new aesthetic’ ” to Lynn Goldsmith’s photograph\nand the character of his work “ ‘transformed’ ” Prince from\nthe “ ‘vulnerable, uncomfortable person’ ” depicted in Ms.\nGoldsmith’s photograph into “ ‘an iconic, larger-than-life\nfigure.’ ” Ante, at 9–10; post, at 7–10, 18 (KAGAN, J., dis-\nsenting). Because the purpose and character of Mr. War-\nhol’s work is so different from Ms. Goldsmith’s, the Foun-\ndation insists, the first statutory factor points in favor of\nfinding a fair-use affirmative defense.\nBy contrast, on Ms. Goldsmith’s reading of the law and\n\n[PDF page 47]\n2   ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nGORSUCH, J., concurring\n\nunder the Second Circuit’s approach, the first fair-use fac-\ntor requires courts to assess the purpose and character of\nthe challenged use. Ante, at 21. The Foundation now owns\nMr. Warhol’s image of Prince and it recently sought to li-\ncense that image to a magazine looking for a depiction of\nPrince to accompany an article about Prince. Ibid. Ms.\nGoldsmith seeks to license her copyrighted photograph to\nexactly these kinds of buyers. And because the purpose and\ncharacter of the Foundation’s challenged use and the pur-\npose and character of her own protected use overlap so com-\npletely, Ms. Goldsmith argues that the first statutory factor\ndoes not support a fair-use affirmative defense.\nAs I see it, the second view of the law is the better one.\nNothing in the copyright statute calls on judges to speculate\nabout the purpose an artist may have in mind when work-\ning on a particular project. Nothing in the law requires\njudges to try their hand at art criticism and assess the aes-\nthetic character of the resulting work. Instead, the first\nstatutory fair-use factor instructs courts to focus on “the\npurpose and character of the use, including whether such\nuse is of a commercial nature or is for nonprofit educational\npurposes.” §107(1) (emphases added). By its terms, the law\ntrains our attention on the particular use under challenge.\nAnd it asks us to assess whether the purpose and character\nof that use is different from (and thus complements) or is\nthe same as (and thus substitutes for) a copyrighted work.\nIt’s a comparatively modest inquiry focused on how and for\nwhat reason a person is using a copyrighted work in the\nworld, not on the moods of any artist or the aesthetic quality\nof any creation.\nTo my mind, three contextual clues confirm that this\nreading of the statutory text is the correct one.\nFirst, the statutory preamble to all four fair-use factors\ninstructs courts to assess whether the person asserting a\nfair-use defense seeks to “use” a copyrighted work “for pur-\nposes such as criticism, comment, news reporting, teaching\n\n[PDF page 48]\nCite as: 598 U. S. ____ (2023)             3\n\nGORSUCH, J., concurring\n\n. . . , scholarship, or research.” §107 (emphasis added).\nOnce more, the statute indicates that a court must examine\nthe purpose of the particular use under challenge, not the\nartistic purpose underlying a work. And once more, the\nstatute tasks courts with asking whether the challenged\nuse serves a different purpose (as, say, a “criticism” of or\n“comment” on the original) or whether it seeks to serve the\nsame purpose (as a substitute for the original).\nSecond, the copyright statute expressly protects a copy-\nright holder’s exclusive right to create “derivative works”\nthat “transfor[m]” or “adap[t]” his original work. §§101,\n106(2). So saying that a later user of a copyrighted work\n“transformed” its message and endowed it with a “new aes-\nthetic” cannot automatically mean he has made fair use of\nit. Contra, post, at 1–2, 22–23, 34–36 (KAGAN, J., dissent-\ning). To hold otherwise would risk making a nonsense of\nthe statutory scheme—suggesting that transformative uses\nof originals belong to the copyright holder (under §106) but\nthat others may simultaneously claim those transformative\nuses for themselves (under §107). We aren’t normally in\nthe business of putting a statute “at war with itself ” in this\nway. United States v. American Tobacco Co., 221 U. S. 106,\n180 (1911).\nFinally, the fourth fair-use factor requires courts to as-\nsess “the effect of the use upon the potential market for or\nvalue of the copyrighted work.” §107(4). This Court has\ndescribed the fourth factor as the “most important” one.\nHarper & Row, Publishers, Inc. v. Nation Enterprises, 471\nU. S. 539, 566 (1985). This Court has said, too, that no fac-\ntor may “be treated in isolation, one from another.” Camp-\nbell v. Acuff-Rose Music, Inc., 510 U. S. 569, 578 (1994). Nor\ndoes anything in the fourth factor call on courts to speculate\nabout artistic ambitions or aesthetics. Instead, it requires\ncourts to ask whether consumers treat a challenged use “as\na market replacement” for a copyrighted work or a market\ncomplement that does not impair demand for the original.\n\n[PDF page 49]\n4   ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nGORSUCH, J., concurring\n\nId., at 591. Reading §107 as a whole, then, it supplies\ncourts with a sequential chain of questions about the par-\nticular challenged use—starting with its purpose and char-\nacter (in the first factor) and ending with its effect (in the\nfourth). There is no double counting here. Contra, post, at\n22 (KAGAN, J., dissenting). Instead, the statute proceeds\nfrom step to step, asking judges to assess whether the chal-\nlenged use (as revealed by its purpose, character, amount\nof source material used, and effect) serves as a complement\nto or a substitute for a copyrighted work.\nWith all this in mind, the Court’s decision seems to me\nexactly right. Does Mr. Warhol’s image seek to depict\nPrince as a “larger-than-life” icon while Ms. Goldsmith’s\nphotograph attempts to cast him in a more “vulnerable”\nlight? See ante, at 28–35; post, at 9–10, 35 (KAGAN, J., dis-\nsenting). Or are the artistic purposes latent in the two im-\nages and their aesthetic character actually more similar\nthan that? Happily, the law does not require judges to tan-\ngle with questions so far beyond our competence. Instead,\nthe first fair-use factor requires courts to assess only\nwhether the purpose and character of the challenged use is\nthe same as a protected use. And here, the undisputed facts\nreveal that the Foundation sought to use its image as a com-\nmercial substitute for Ms. Goldsmith’s photograph. Of\ncourse, competitive products often differ in material re-\nspects and a buyer may find these differences reason to pre-\nfer one offering over another. Cf. post, at 10, 18 (KAGAN, J.,\ndissenting). But under the first fair-use factor the salient\npoint is that the purpose and character of the Foundation’s\nuse involved competition with Ms. Goldsmith’s image. To\nknow that much is to know the first fair-use factor favors\nMs. Goldsmith.\nIt is equally important, however, to acknowledge what\nthis case does not involve and what the Court does not de-\ncide. Worried about the fate of artists seeking to portray\nreclining nudes or papal authorities, or authors hoping to\n\n[PDF page 50]\nCite as: 598 U. S. ____ (2023)              5\n\nGORSUCH, J., concurring\n\nbuild on classic literary themes? Post, at 25–35 (KAGAN, J.,\ndissenting). Worry not. This case does not call on us to\nstrike a balance between rewarding creators and enabling\nothers to build on their work. That is Congress’s job. See\nU. S. Const., Art. I, §8, cl. 8. Nor does this case even call on\nus to interpret and apply many of the reticulated elements\nof the Copyright Act that Congress has adopted to balance\nthese competing interests. Our only job today is to interpret\nand apply faithfully one statutory factor among many Con-\ngress has deemed relevant to the affirmative defense of fair\nuse.\nThat observation points the way to another. The Court\ntoday does not even decide whether the Foundation’s image\nof Prince infringes on Ms. Goldsmith’s copyright. To uphold\na claim of infringement under the Copyright Act, a court\nmust find the defendant copied elements of the plaintiff ’s\nwork that are themselves original. Feist Publications, Inc.\nv. Rural Telephone Service Co., 499 U. S. 340, 361 (1991).\nAs part of this process, a court must isolate and vindicate\nonly the truly original elements of a copyrighted work. See\n2 Nimmer on Copyright §8.01[D] (2022). The plaintiff must\nusually show not only a similarity but a “substantial” simi-\nlarity between the allegedly infringing work and the origi-\nnal elements of his own copyrighted work. See 4 Nimmer\non Copyright §13.03[A] (2023). And even when two works\nare substantially similar, if both the plaintiff ’s and the de-\nfendant’s works copy from a third source (reworking, say, a\ntraditional artistic or literary theme), a claim for infringe-\nment generally will not succeed. See 2 Nimmer on Copy-\nright §8.01[C]. In this case, we address none of these ques-\ntions or other elements of the infringement standard\ndesigned to ensure room for later artists to build on the\nwork of their predecessors. The district court concluded\nthat it “need not address” the merits of Ms. Goldsmith’s in-\nfringement claim because the Foundation could prevail at\nsummary judgment on its affirmative defense of fair use.\n\n[PDF page 51]\n6    ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nGORSUCH, J., concurring\n\n382 F. Supp. 3d 312, 324 (SDNY 2019). The Second Circuit\nreversed, focused primarily on the district court’s “applica-\ntion of the four fair-use factors.” 11 F. 4th 26, 32 (2021); see\nid., at 36–52. And this Court granted review to decide only\nthe question of fair use and only the role of a single factor\nin that affirmative defense. 596 U. S. ___ (2022).\nLast but hardly least, while our interpretation of the first\nfair-use factor does not favor the Foundation in this case, it\nmay in others. If, for example, the Foundation had sought\nto display Mr. Warhol’s image of Prince in a nonprofit mu-\nseum or a for-profit book commenting on 20th-century art,\nthe purpose and character of that use might well point to\nfair use. But those cases are not this case. Before us, Ms.\nGoldsmith challenges only the Foundation’s effort to use its\nportrait as a commercial substitute for her own protected\nphotograph in sales to magazines looking for images of\nPrince to accompany articles about the musician. And our\nonly point today is that, while the Foundation may often\nhave a fair-use defense for Mr. Warhol’s work, that does not\nmean it always will. Under the law Congress has given us,\neach challenged use must be assessed on its own terms."
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      "content": "SOURCE: Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith\nURL: https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf\nSECTION: Kagan dissent\nPDF pages: 52-87\n\n[PDF page 52]\nCite as: 598 U. S. ____ (2023)                     1\n\nKAGAN, J., dissenting\n\nSUPREME COURT OF THE UNITED STATES\n_________________\n\nNo. 21–869\n_________________\n\n\nANDY WARHOL FOUNDATION FOR THE VISUAL\nARTS, INC., PETITIONER v. LYNN\nGOLDSMITH, ET AL.\nON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF\nAPPEALS FOR THE SECOND CIRCUIT\n[May 18, 2023]\n\nJUSTICE KAGAN, with whom THE CHIEF JUSTICE joins,\ndissenting.\nToday, the Court declares that Andy Warhol’s eye-pop-\nping silkscreen of Prince—a work based on but dramati-\ncally altering an existing photograph—is (in copyright\nlingo) not “transformative.” Still more, the Court decides\nthat even if Warhol’s portrait were transformative—even if\nits expression and meaning were worlds away from the\nphoto—that fact would not matter. For in the majority’s\nview, copyright law’s first fair-use factor—addressing “the\npurpose and character” of “the use made of a work”—is un-\ninterested in the distinctiveness and newness of Warhol’s\nportrait. 17 U. S. C. §107. What matters under that factor,\nthe majority says, is instead a marketing decision: In the\nmajority’s view, Warhol’s licensing of the silkscreen to a\nmagazine precludes fair use.1\nYou’ve probably heard of Andy Warhol; you’ve probably\nseen his art. You know that he reframed and reformu-\nlated—in a word, transformed—images created first by oth-\ners. Campbell’s soup cans and Brillo boxes. Photos of ce-\nlebrity icons: Marilyn, Elvis, Jackie, Liz—and, as most\n——————\n1 By the time of the licensing, Warhol had died and the Warhol Foun-\n\ndation had stepped into his shoes. But for ease of exposition, I will refer\nto both the artist and his successor-in-interest as Warhol.\n\n[PDF page 53]\n2    ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nKAGAN, J., dissenting\n\nrelevant here, Prince. That’s how Warhol earned his con-\nspicuous place in every college’s Art History 101. So it may\ncome as a surprise to see the majority describe the Prince\nsilkscreen as a “modest alteration[ ]” of Lynn Goldsmith’s\nphotograph—the result of some “crop[ping]” and “flat-\nten[ing]”—with the same “essential nature.” Ante, at 8, 25,\nn. 14, 33 (emphasis deleted). Or more generally, to observe\nthe majority’s lack of appreciation for the way his works dif-\nfer in both aesthetics and message from the original tem-\nplates. In a recent decision, this Court used Warhol paint-\nings as the perfect exemplar of a “copying use that adds\nsomething new and important”—of a use that is “transform-\native,” and thus points toward a finding of fair use. Google\nLLC v. Oracle America, Inc., 593 U. S. ___, ___–___ (2021)\n(slip op., at 24–25). That Court would have told this one to\ngo back to school.\nWhat is worse, that refresher course would apparently be\ninsufficient. For it is not just that the majority does not\nrealize how much Warhol added; it is that the majority does\nnot care. In adopting that posture of indifference, the ma-\njority does something novel (though in law, unlike in art, it\nis rarely a good thing to be transformative). Before today,\nwe assessed “the purpose and character” of a copier’s use by\nasking the following question: Does the work “add[ ] some-\nthing new, with a further purpose or different character, al-\ntering the [original] with new expression, meaning, or mes-\nsage”? Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569,\n579 (1994); see Google, 593 U. S., at ___ (slip op., at 24).\nWhen it did so to a significant degree, we called the work\n“transformative” and held that the fair-use test’s first factor\nfavored the copier (though other factors could outweigh that\none). But today’s decision—all the majority’s protestations\nnotwithstanding—leaves our first-factor inquiry in sham-\nbles. The majority holds that because Warhol licensed his\nwork to a magazine—as Goldsmith sometimes also did—the\nfirst factor goes against him. See, e.g., ante, at 35. It does\n\n[PDF page 54]\nCite as: 598 U. S. ____ (2023)             3\n\nKAGAN, J., dissenting\n\nnot matter how different the Warhol is from the original\nphoto—how much “new expression, meaning, or message”\nhe added. It does not matter that the silkscreen and the\nphoto do not have the same aesthetic characteristics and do\nnot convey the same meaning. It does not matter that be-\ncause of those dissimilarities, the magazine publisher did\nnot view the one as a substitute for the other. All that mat-\nters is that Warhol and the publisher entered into a licens-\ning transaction, similar to one Goldsmith might have done.\nBecause the artist had such a commercial purpose, all the\ncreativity in the world could not save him.\nThat doctrinal shift ill serves copyright’s core purpose.\nThe law does not grant artists (and authors and composers\nand so on) exclusive rights—that is, monopolies—for their\nown sake. It does so to foster creativity—“[t]o promote the\n[p]rogress” of both arts and science. U. S. Const., Art. I, §8,\ncl. 8. And for that same reason, the law also protects the\nfair use of copyrighted material. Both Congress and the\ncourts have long recognized that an overly stringent copy-\nright regime actually “stifle[s]” creativity by preventing art-\nists from building on the work of others. Stewart v. Abend,\n495 U. S. 207, 236 (1990) (internal quotation marks omit-\nted); see Campbell, 510 U. S., at 578–579. For, let’s be hon-\nest, artists don’t create all on their own; they cannot do\nwhat they do without borrowing from or otherwise making\nuse of the work of others. That is the way artistry of all\nkinds—visual, musical, literary—happens (as it is the way\nknowledge and invention generally develop). The fair-use\ntest’s first factor responds to that truth: As understood in\nour precedent, it provides “breathing space” for artists to\nuse existing materials to make fundamentally new works,\nfor the public’s enjoyment and benefit. Id., at 579. In now\nremaking that factor, and thus constricting fair use’s\nboundaries, the majority hampers creative progress and\n\n[PDF page 55]\n4     ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nKAGAN, J., dissenting\n\nundermines creative freedom. I respectfully dissent.2\nI\nA\nAndy Warhol is the avatar of transformative copying. Cf.\nGoogle, 593 U. S., at ___–___ (slip op., at 24–25) (selecting\nWarhol, from the universe of creators, to illustrate what\ntransformative copying is). In his early career, Warhol\nworked as a commercial illustrator and became experienced\nin varied techniques of reproduction. By night, he used\nthose techniques—in particular, the silkscreen—to create\nhis own art. His own—even though in one sense not. The\nsilkscreen enabled him to make brilliantly novel art out of\nexisting “images carefully selected from popular culture.”\nD. De Salvo, God Is in the Details, in Andy Warhol Prints\n22 (4th rev. ed. 2003). The works he produced, connecting\ntraditions of fine art with mass culture, depended on “ap-\npropriation[s]”: The use of “elements of an extant image[ ]\nis Warhol’s entire modus operandi.” B. Gopnik, Artistic Ap-\npropriation vs. Copyright Law, N. Y. Times, Apr. 6, 2021,\np. C4 (internal quotation marks omitted). And with that\nm.o., he changed modern art; his appropriations and his\noriginality were flipsides of each other. To a public accus-\ntomed to thinking of art as formal works “belong[ing] in\n——————\n2 One preliminary note before beginning in earnest. As readers are by\n\nnow aware, the majority opinion is trained on this dissent in a way ma-\njority opinions seldom are. Maybe that makes the majority opinion self-\nrefuting? After all, a dissent with “no theory” and “[n]o reason” is not\none usually thought to merit pages of commentary and fistfuls of come-\nback footnotes. Ante, at 36. In any event, I’ll not attempt to rebut point\nfor point the majority’s varied accusations; instead, I’ll mainly rest on my\noriginal submission. I’ll just make two suggestions about reading what\nfollows. First, when you see that my description of a precedent differs\nfrom the majority’s, go take a look at the decision. Second, when you\ncome across an argument that you recall the majority took issue with, go\nback to its response and ask yourself about the ratio of reasoning to ipse\ndixit. With those two recommendations, I’ll take my chances on readers’\ngood judgment.\n\n[PDF page 56]\nCite as: 598 U. S. ____ (2023)            5\n\nKAGAN, J., dissenting\n\ngold frames”—disconnected from the everyday world of\nproducts and personalities—Warhol’s paintings landed like\na thunderclap. A. Danto, Andy Warhol 36 (2009). Think\nSoup Cans or, in another vein, think Elvis. Warhol had cre-\nated “something very new”—“shockingly important, trans-\nformative art.” B. Gopnik, Warhol 138 (2020); Gopnik, Ar-\ntistic Appropriation.\nTo see the method in action, consider one of Warhol’s pre-\nPrince celebrity silkscreens—this one, of Marilyn Monroe.\nHe began with a publicity photograph of the actress. And\nthen he went to work. He reframed the image, zooming in\non Monroe’s face to “produc[e] the disembodied effect of a\ncinematic close-up.” 1 App. 161 (expert declaration).\n\n\n\n\nAt that point, he produced a high-contrast, flattened image\non a sheet of clear acetate. He used that image to trace an\noutline on the canvas. And he painted on top—applying ex-\notic colors with “a flat, even consistency and an industrial\nappearance.” Id., at 165. The same high-contrast image\nwas then reproduced in negative on a silkscreen, designed\n\n[PDF page 57]\n6    ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nKAGAN, J., dissenting\n\nto function as a selectively porous mesh. Warhol would\n“place the screen face down on the canvas, pour ink onto the\nback of the mesh, and use a squeegee to pull the ink through\nthe weave and onto the canvas.” Id., at 164. On some of his\nMarilyns (there are many), he reordered the process—first\nink, then color, then (perhaps) ink again. See id., at 165–\n166. The result—see for yourself—is miles away from a lit-\neral copy of the publicity photo.\n\n\n\n\nAndy Warhol, Marilyn, 1964, acrylic and silkscreen ink on linen\n\nAnd the meaning is different from any the photo had. Of\ncourse, meaning in great art is contestable and contested\n(as is the premise that an artwork is great). But note what\nsome experts say about the complex message(s) Warhol’s\nMarilyns convey. On one level, those vivid, larger-than-life\npaintings are celebrity iconography, making a “secular, pro-\nfane subject[ ]” “transcendent” and “eternal.” Id., at 209 (in-\nternal quotation marks omitted). But they also function as\na biting critique of the cult of celebrity, and the role it plays\n\n[PDF page 58]\nCite as: 598 U. S. ____ (2023)            7\n\nKAGAN, J., dissenting\n\nin American life. With misaligned, “Day-Glo” colors sug-\ngesting “artificiality and industrial production,” Warhol\nportrayed the actress as a “consumer product.” The Metro-\npolitan Museum of Art Guide 233 (2012); The Metropolitan\nMuseum of Art, Marilyn (2023) (online source archived at\nhttps://www.supremecourt.gov). And in so doing, he “ex-\nposed the deficiencies” of a “mass-media culture” in which\n“such superficial icons loom so large.” 1 App. 208, 210 (in-\nternal quotation marks omitted). Out of a publicity photo\ncame both memorable portraiture and pointed social com-\nmentary.\nAs with Marilyn, similarly with Prince. In 1984, Vanity\nFair commissioned Warhol to create a portrait based on a\nblack-and-white photograph taken by noted photographer\nLynn Goldsmith:\n\n\n\n\nAs he did in the Marilyn series, Warhol cropped the photo,\nso that Prince’s head fills the whole frame: It thus becomes\n“disembodied,” as if “magically suspended in space.” Id., at\n\n[PDF page 59]\n8    ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nKAGAN, J., dissenting\n\n174. And as before, Warhol converted the cropped photo\ninto a higher-contrast image, incorporated into a silkscreen.\nThat image isolated and exaggerated the darkest details of\nPrince’s head; it also reduced his “natural, angled position,”\npresenting him in a more face-forward way. Id., at 223.\nWarhol traced, painted, and inked, as earlier described.\nSee supra, at 5–6. He also made a second silkscreen, based\non his tracings; the ink he passed through that screen left\ndifferently colored, out-of-kilter lines around Prince’s face\nand hair (a bit hard to see in the reproduction below—more\npronounced in the original). Altogether, Warhol made 14\nprints and two drawings—the Prince series—in a range of\nunnatural, lurid hues. See Appendix, ante, at 39. Vanity\nFair chose the Purple Prince to accompany an article on the\nmusician. Thirty-two years later, just after Prince died,\nCondé Nast paid Warhol (now actually his foundation, see\nsupra, at 1, n. 1) to use the Orange Prince on the cover of a\nspecial commemorative magazine. A picture (or two), as the\nsaying goes, is worth a thousand words, so here is what\nthose magazines published:\n\n\n\n\nAndy Warhol, Prince, 1984, synthetic paint and silkscreen ink on canvas\n\n[PDF page 60]\nCite as: 598 U. S. ____ (2023)                      9\n\nKAGAN, J., dissenting\n\nIt does not take an art expert to see a transformation—\nbut in any event, all those offering testimony in this case\nagreed there was one. The experts explained, in far greater\ndetail than I have, the laborious and painstaking work that\nWarhol put into these and other portraits. See 1 App. 160–\n185, 212–216, 222–224. They described, in ways I have\ntried to suggest, the resulting visual differences between\nthe photo and the silkscreen. As one summarized the mat-\nter: The two works are “materially distinct” in “their com-\nposition, presentation, color palette, and media”—i.e., in\npretty much all their aesthetic traits. Id., at 227.3 And with\nthe change in form came an undisputed change in meaning.\nGoldsmith’s focus—seen in what one expert called the “cor-\nporeality and luminosity” of her depiction—was on Prince’s\n“unique human identity.” Id., at 176, 227. Warhol’s focus\nwas more nearly the opposite. His subject was “not the pri-\nvate person but the public image.” Id., at 159. The artist’s\n“flattened, cropped, exotically colored, and unnatural depic-\ntion of Prince’s disembodied head” sought to “communicate\na message about the impact of celebrity” in contemporary\nlife. Id., at 227. On Warhol’s canvas, Prince emerged as\n“spectral, dark, [and] uncanny”—less a real person than a\n“mask-like simulacrum.” Id., at 187, 249. He was reframed\nas a “larger than life” “icon or totem.” Id., at 257. Yet he\nwas also reduced: He became the product of a “publicity ma-\nchine” that “packages and disseminates commoditized im-\nages.” Id., at 160. He manifested, in short, the dehuman-\nizing culture of celebrity in America. The message could\n\n——————\n3 The majority attempts to minimize the visual dissimilarities between\n\nWarhol’s silkscreen and Goldsmith’s photograph by rotating the former\nimage and then superimposing it on the latter one. See ante, at 9 (fig. 6);\nsee also Brief for Goldsmith 17 (doing the same thing). But the majority\nis trying too hard: Its manipulated picture in fact reveals the significance\nof the cropping and facial reorientation that went into Warhol’s image.\nAnd the majority’s WarGold combo of course cannot obscure the other\ndifferences, of color and presentation, between the two works.\n\n[PDF page 61]\n10   ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nKAGAN, J., dissenting\n\nnot have been more different.\nA thought experiment may pound the point home. Sup-\npose you were the editor of Vanity Fair or Condé Nast, pub-\nlishing an article about Prince. You need, of course, some\nkind of picture. An employee comes to you with two options:\nthe Goldsmith photo, the Warhol portrait. Would you say\nthat you don’t really care? That the employee is free to flip\na coin? In the majority’s view, you apparently would. Its\nopinion, as further discussed below, is built on the idea that\nboth are just “portraits of Prince” that may equivalently be\n“used to depict Prince in magazine stories about Prince.”\nAnte, at 12–13; see ante, at 22–23, and n. 11, 27, n. 15, 33,\n35. All I can say is that it’s a good thing the majority isn’t\nin the magazine business. Of course you would care! You\nwould be drawn aesthetically to one, or instead to the other.\nYou would want to convey the message of one, or instead of\nthe other. The point here is not that one is better and the\nother worse. The point is that they are fundamentally dif-\nferent. You would see them not as “substitute[s],” but as\ndivergent ways to (in the majority’s mantra) “illustrate a\nmagazine about Prince with a portrait of Prince.” Ante, at\n15, 33; see ante, at 22–23, and n. 11, 27, n. 15, 35. Or else\nyou (like the majority) would not have much of a future in\nmagazine publishing.\nIn any event, the editors of Vanity Fair and Condé Nast\nunderstood the difference—the gulf in both aesthetics and\nmeaning—between the Goldsmith photo and the Warhol\nportrait. They knew about the photo; but they wanted the\nportrait. They saw that as between the two works, Warhol\nhad effected a transformation.\nB\nThe question in this case is whether that transformation\nshould matter in assessing whether Warhol made “fair use”\nof Goldsmith’s copyrighted photo. The answer is yes—it\nshould push toward (although not dictate) a finding of fair\n\n[PDF page 62]\nCite as: 598 U. S. ____ (2023)                      11\n\nKAGAN, J., dissenting\n\nuse. That answer comports with the copyright statute, its\nunderlying policy, and our precedent concerning the two.\nUnder established copyright law (until today), Warhol’s ad-\ndition of important “new expression, meaning, [and] mes-\nsage” counts in his favor in the fair-use inquiry. Campbell,\n510 U. S., at 579.\nStart by asking a broader question: Why do we have “fair\nuse” anyway? The majority responds that while copyrights\nencourage the making of creative works, fair use promotes\ntheir “public availability.” Ante, at 13 (internal quotation\nmarks omitted). But that description sells fair use far\nshort. Beyond promoting “availability,” fair use itself ad-\nvances creativity and artistic progress. See Campbell, 510\nU. S., at 575, 579 (fair use is “necessary to fulfill copyright’s\nvery purpose”—to “promote science and the arts”). That is\nbecause creative work does not happen in a vacuum. “Noth-\ning comes from nothing, nothing ever could,” said song-\nwriter Richard Rodgers, maybe thinking not only about love\nand marriage but also about how the Great American Song-\nbook arose from vaudeville, ragtime, the blues, and jazz.4\nThis Court has long understood the point—has gotten how\nnew art, new invention, and new knowledge arise from ex-\nisting works. Our seminal opinion on fair use quoted the\nillustrious Justice Story:\n“In truth, in literature, in science and in art, there are,\nand can be, few, if any, things, which . . . are strictly\n\n——————\n4 In the spirit of this opinion, I might have quoted that line without\n\nfurther ascription. But lawyers believe in citations, so I will tell you that\nthe Rodgers lyric (which is, of course, from the Sound of Music) is used—\nto make the same point I do—in Rob Kapilow’s Listening for America:\nInside the Great American Songbook From Gershwin to Sondheim\n(2019). One of that book’s themes is that even the most “radically new”\nmusic builds on existing works—or as Irving Berlin put the point, “songs\nmake history, and history makes songs.” Id., at xv, 2. And so too for\nevery other form of art. See infra, at 26–34 (making this point at greater\nlength—and with pictures!).\n\n[PDF page 63]\n12   ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nKAGAN, J., dissenting\n\nnew and original throughout. Every book in literature,\nscience and art, borrows, and must necessarily borrow,\nand use much which was well known and used before.”\nId., at 575 (quoting Emerson v. Davies, 8 F. Cas. 615,\n619 (No. 4,436) (CC Mass. 1845)).\nBecause that is so, a copyright regime with no escape valves\nwould “stifle the very creativity which [the] law is designed\nto foster.” Stewart, 495 U. S., at 236. Fair use is such an\nescape valve. It “allow[s] others to build upon” copyrighted\nmaterial, so as not to “put manacles upon” creative pro-\ngress. Campbell, 510 U. S., at 575 (internal quotation\nmarks omitted). In short, copyright’s core value—promot-\ning creativity—sometimes demands a pass for copying.\nTo identify when that is so, the courts developed and Con-\ngress later codified a multi-factored inquiry. As the major-\nity describes, see ante, at 14, the current statute sets out\nfour non-exclusive considerations to guide courts. They are:\n(1) “the purpose and character of the use” made of the cop-\nyrighted work, “including whether such use is of a commer-\ncial nature”; (2) “the nature of the copyrighted work”; (3)\n“the amount and substantiality of the portion used in rela-\ntion to the copyrighted work as a whole”; and (4) “the effect\nof the use upon the potential market for or value of the cop-\nyrighted work.” 17 U. S. C. §107. Those factors sometimes\npoint in different directions; if so, a court must weigh them\nagainst each other. In doing so, we have stated, courts\nshould view the fourth factor—which focuses on the copy-\nright holder’s economic interests—as the “most important.”\nSee Harper & Row, Publishers, Inc. v. Nation Enterprises,\n471 U. S. 539, 566 (1985).5 But the overall balance cannot\n——————\n5 The fourth factor has, to use the majority’s repeated example, forced\n\nmany a filmmaker to pay for adapting books into movies—as we noted\ntwo Terms ago. See Google LLC v. Oracle America, Inc., 593 U. S. ___,\n___ (2021) (slip op., at 30) (explaining that film adaptations may founder\non “[t]he fourth statutory factor” because “[m]aking a film of an author’s\nbook” may result in “potential or presumed losses to the copyright\n\n[PDF page 64]\nCite as: 598 U. S. ____ (2023)                     13\n\nKAGAN, J., dissenting\n\ncome out right unless each factor is assessed correctly. This\ncase, of course, is about (and only about) the first.\nAnd that factor is distinctive: It is the only one that fo-\ncuses on what the copier’s use of the original work accom-\nplishes. The first factor asks about the “character” of that\nuse—its “main or essential nature[,] esp[ecially] as strongly\nmarked and serving to distinguish.” Webster’s Third New\nInternational Dictionary 376 (1976). And the first factor\nasks about the “purpose” of the use—the “object, effect, or\nresult aimed at, intended, or attained.” Id., at 1847. In that\nway, the first factor gives the copier a chance to make his\ncase. See P. Leval, Toward a Fair Use Standard, 103 Harv.\nL. Rev. 1105, 1116 (1990) (describing factor 1 as “the soul\nof ” the “fair use defense”). Look, the copier can say, at how\nI altered the original, and what I achieved in so doing. Look\nat how (as Judge Leval’s seminal article put the point) the\noriginal was “used as raw material” and was “transformed\n\n——————\nowner”). The majority asserts that it is “aware of no authority for the\nproposition” that the fourth factor can thus protect against unlicensed\nfilm adaptations, insisting that the first factor must do (or at least share\nin) the work. Ante, at 29, n. 17; see ante, at 16, 28–29, 36. But Google is\nthe “authority for the proposition”: That’s just what it said, in so many\nwords. And anyway, the majority’s own first-factor test, applied consist-\nently, would favor, not stop, the freeloading filmmaker. As you’ve seen\n(and I’ll discuss below), that test boils down to whether a follow-on work\nserves substantially the same commercial purpose as the original—here,\n“depict[ing] Prince in magazine stories about Prince.” Ante, at 12–13;\nsee ante, at 22–23, and n. 11, 27, n. 15, 33, 35. A film adaptation doesn’t\nfit that mold: The filmmaker (unlike Warhol, in the majority’s view)\nwants to reach different buyers, in different markets, consuming differ-\nent products. The majority at one point suggests it might have some\ndifferent factor 1 test in its back pocket to deal with this problem. See\nante, at 35, n. 22. But assuming the majority’s approach, as stated re-\npeatedly in its opinion, is truly the majority’s approach, factor 1 won’t\nhelp the author in the book-to-film situation. Under that approach, it is\nthe fourth factor, not the first, which has to “take[ ] care of derivative\nworks like book-to-film adaptations.” Ante, at 29, n. 17. It’s a good thing\nthe majority errs in believing that the fourth factor isn’t up to the job.\n\n[PDF page 65]\n14   ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nKAGAN, J., dissenting\n\nin the creation of new information, new aesthetics, new in-\nsights.” Id., at 1111. That is hardly the end of the fair-use\ninquiry (commercialism, too, may bear on the first factor,\nand anyway there are three factors to go), but it matters\nprofoundly. Because when a transformation of the original\nwork has occurred, the user of the work has made the kind\nof creative contribution that copyright law has as its object.\nDon’t take it from me (or Judge Leval): The above is ex-\nactly what this Court has held about how to apply factor 1.\nIn Campbell, our primary case on the topic, we stated that\nthe first factor’s purpose-and-character test “central[ly]”\nconcerns “whether and to what extent the new work is\n‘transformative.’ ” 510 U. S., at 579 (quoting Leval 1111).\nThat makes sense, we explained, because “the goal of copy-\nright, to promote science and the arts, is generally fur-\nthered by the creation of transformative works.” 510 U. S.,\nat 579. We then expounded on when such a transformation\nhappens. Harking back to Justice Story, we explained that\na “new work” might “merely ‘supersede[ ] the objects’ of the\noriginal creation”—meaning, that it does no more, and for\nno other end, than the first work had. Ibid. (quoting Folsom\nv. Marsh, 9 F. Cas. 342, 348 (No. 4,901) (CC Mass. 1841)).\nBut alternatively, the new work could “add[ ] something\nnew, with a further purpose or different character, altering\nthe first with new expression, meaning, or message.” 510\nU. S., at 579. Forgive me, but given the majority’s stance\n(see, e.g., ante, at 33), that bears repeating: The critical fac-\ntor 1 inquiry, we held, is whether a new work alters the first\nwith “new expression, meaning, or message.” The more it\ndoes so, the more transformative the new work. And (here\nis the final takeaway) “the more transformative the new\nwork, the less will be the significance of other factors, like\ncommercialism, that may weigh against a finding of fair\nuse.” 510 U. S., at 579. Under that approach, the Campbell\nCourt held, the rap group 2 Live Crew’s “transformative”\ncopying of Roy Orbison’s “Pretty Woman” counted in favor\n\n[PDF page 66]\nCite as: 598 U. S. ____ (2023)             15\n\nKAGAN, J., dissenting\n\nof fair use. Id., at 583. And that was so even though the\nrap song was, as everyone agreed, recorded and later sold\nfor profit. See id., at 573.\nJust two Terms ago, in Google, we made all the same\npoints. We quoted Campbell in explaining that the factor 1\ninquiry is “whether the copier’s use ‘adds something new,\nwith a further purpose or different character, altering’ the\ncopyrighted work ‘with new expression, meaning, or mes-\nsage.’ ” 593 U. S., at ___ (slip op., at 24). We again described\n“a copying use that adds something new and important” as\n“transformative.” Ibid. We reiterated that protecting\ntransformative uses “stimulate[s] creativity” and thus “ful-\nfill[s] the objective of copyright law.” Ibid. (quoting Leval\n1111). And then we gave an example. Yes, of course, we\npointed to Andy Warhol. (The majority claims not to be em-\nbarrassed by this embarrassing fact because the specific\nreference was to his Soup Cans, rather than his celebrity\nimages. But drawing a distinction between a “commentary\non consumerism”—which is how the majority describes his\nsoup canvases, ante, at 27—and a commentary on celebrity\nculture, i.e., the turning of people into consumption items,\nis slicing the baloney pretty thin.) Finally, the Court con-\nducted the first-factor inquiry it had described. Google had\nreplicated Sun Microsystems’ computer code as part of a\n“commercial endeavor,” done “for commercial profit.” 593\nU. S., at ___ (slip op., at 27). No matter, said the Court.\n“[M]any common fair uses are indisputably commercial.”\nIbid. What mattered instead was that Google had used\nSun’s code to make “something new and important”: a\n“highly creative and innovative” software platform. Id., at\n___–___ (slip op., at 24–25). The use of the code, the Court\nheld, was therefore “transformative” and “point[ed] toward\nfair use.” Id., at ___, ___ (slip op., at 25, 28).\nCampbell and Google also illustrate the difference it can\nmake in the world to protect transformative works through\nfair use. Easy enough to say (as the majority does, see ante,\n\n[PDF page 67]\n16   ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nKAGAN, J., dissenting\n\nat 36) that a follow-on creator should just pay a licensing\nfee for its use of an original work. But sometimes copyright\nholders charge an out-of-range price for licenses. And other\ntimes they just say no. In Campbell, for example, Orbison’s\nsuccessor-in-interest turned down 2 Live Crew’s request for\na license, hoping to block the rap take-off of the original\nsong. See 510 U. S., at 572–573. And in Google, the parties\ncould not agree on licensing terms, as Sun insisted on con-\nditions that Google thought would have subverted its busi-\nness model. See 593 U. S., at ___ (slip op., at 3). So without\nfair use, 2 Live Crew’s and Google’s works—however new\nand important—might never have been made or, if made,\nnever have reached the public. The prospect of that loss to\n“creative progress” is what lay behind the Court’s inquiry\ninto transformativeness—into the expressive novelty of the\nfollow-on work (regardless whether the original creator\ngranted permission). Id., at ___ (slip op., at 25); see Camp-\nbell, 510 U. S., at 579.\nNow recall all the ways Warhol, in making a Prince por-\ntrait from the Goldsmith photo, “add[ed] something new,\nwith a further purpose or different character”—all the ways\nhe “alter[ed] the [original work’s] expression, meaning,\n[and] message.” Ibid. The differences in form and appear-\nance, relating to “composition, presentation, color palette,\nand media.” 1 App. 227; see supra, at 7–10. The differences\nin meaning that arose from replacing a realistic—and in-\ndeed humanistic—depiction of the performer with an un-\nnatural, disembodied, masklike one. See ibid. The convey-\nance of new messages about celebrity culture and its\npersonal and societal impacts. See ibid. The presence of,\nin a word, “transformation”—the kind of creative building\nthat copyright exists to encourage. Warhol’s use, to be sure,\nhad a commercial aspect. Like most artists, Warhol did not\nwant to hide his works in a garret; he wanted to sell them.\nBut as Campbell and Google both demonstrate (and as fur-\n\n[PDF page 68]\nCite as: 598 U. S. ____ (2023)                  17\n\nKAGAN, J., dissenting\n\nther discussed below), that fact is nothing near the show-\nstopper the majority claims. Remember, the more trans-\nformative the work, the less commercialism matters. See\nCampbell, 510 U. S., at 579; supra, at 14; ante, at 18 (ac-\nknowledging the point, even while refusing to give it any\nmeaning). The dazzling creativity evident in the Prince\nportrait might not get Warhol all the way home in the fair-\nuse inquiry; there remain other factors to be considered and\npossibly weighed against the first one. See supra, at 2, 10,\n14. But the “purpose and character of [Warhol’s] use” of the\ncopyrighted work—what he did to the Goldsmith photo, in\nservice of what objects—counts powerfully in his favor. He\nstarted with an old photo, but he created a new new thing.6\nII\nThe majority does not see it. And I mean that literally.\nThere is precious little evidence in today’s opinion that the\nmajority has actually looked at these images, much less\nthat it has engaged with expert views of their aesthetics\nand meaning. Whatever new expression Warhol added, the\nmajority says, was not transformative. See ante, at 25. Ap-\nparently, Warhol made only “modest alterations.” Ante, at\n33. Anyone, the majority suggests, could have “crop[ped],\nflatten[ed], trace[d], and color[ed] the photo” as Warhol did.\nAnte, at 8. True, Warhol portrayed Prince “somewhat dif-\nferently.” Ante, at 33. But the “degree of difference” is too\nsmall: It consists merely in applying Warhol’s “characteris-\ntic style”—an aesthetic gloss, if you will—“to bring out a\nparticular meaning” that was already “available in [Gold-\nsmith’s] photograph.” Ibid. So too, Warhol’s commentary\non celebrity culture matters not at all; the majority is not\nwilling to concede that it even exists. See ante, at 34 (“even\n——————\n6 I have to admit, I stole that last phrase from Michael Lewis’s The\n\nNew New Thing: A Silicon Valley Story (2014). I read the book some\ntime ago, and the phrase stuck with me (as phrases often do). I wouldn’t\nhave thought of it on my own.\n\n[PDF page 69]\n18   ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nKAGAN, J., dissenting\n\nif such commentary is perceptible”). And as for the District\nCourt’s view that Warhol transformed Prince from a “vul-\nnerable, uncomfortable person to an iconic, larger-than-life\nfigure,” the majority is downright dismissive. Ante, at 32.\nVulnerable, iconic—who cares? The silkscreen and the\nphoto, the majority claims, still have the same “essential\nnature.” Ante, at 25, n. 14 (emphasis deleted).\nThe description is disheartening. It’s as though Warhol\nis an Instagram filter, and a simple one at that (e.g., sepia-\ntinting). “What is all the fuss about?,” the majority wants\nto know. Ignoring reams of expert evidence—explaining, as\nevery art historian could explain, exactly what the fuss is\nabout—the majority plants itself firmly in the “I could paint\nthat” school of art criticism. No wonder the majority sees\nthe two images as essentially fungible products in the mag-\nazine market—publish this one, publish that one, what\ndoes it matter? See ante, at 22–23; supra, at 10. The prob-\nlem is that it does matter, for all the reasons given in the\nrecord and discussed above. See supra, at 9–10. Warhol\nbased his silkscreen on a photo, but fundamentally changed\nits character and meaning. In belittling those creative con-\ntributions, the majority guarantees that it will reach the\nwrong result.\nWorse still, the majority maintains that those contribu-\ntions, even if significant, just would not matter. All of War-\nhol’s artistry and social commentary is negated by one\nthing: Warhol licensed his portrait to a magazine, and Gold-\nsmith sometimes licensed her photos to magazines too.\nThat is the sum and substance of the majority opinion.\nOver and over, the majority incants that “[b]oth [works] are\nportraits of Prince used in magazines to illustrate stories\nabout Prince”; they therefore both “share substantially the\nsame purpose”—meaning, a commercial one. Ante, at 22–\n23, 38; see ante, at 12–13, 27, n. 15, 33, 35. Or said other-\nwise, because Warhol entered into a licensing transaction\nwith Condé Nast, he could not get any help from factor 1—\n\n[PDF page 70]\nCite as: 598 U. S. ____ (2023)            19\n\nKAGAN, J., dissenting\n\nregardless how transformative his image was. See, e.g.,\nante, at 35 (Warhol’s licensing “outweigh[s]” any “new\nmeaning or message” he could have offered). The majority’s\ncommercialism-trumps-creativity analysis has only one\nway out. If Warhol had used Goldsmith’s photo to comment\non or critique Goldsmith’s photo, he might have availed\nhimself of that factor’s benefit (though why anyone would\nbe interested in that work is mysterious). See ante, at 34.\nBut because he instead commented on society—the dehu-\nmanizing culture of celebrity—he is (go figure) out of luck.\nFrom top-to-bottom, the analysis fails. It does not fit the\ncopyright statute. It is not faithful to our precedent. And\nit does not serve the purpose both Congress and the Court\nhave understood to lie at the core of fair use: “stimulat[ing]\ncreativity,” by enabling artists and writers of every descrip-\ntion to build on prior works. Google, 593 U. S., at ___ (slip\nop., at 24). That is how art, literature, and music happen;\nit is also how all forms of knowledge advance. Even as the\nmajority misconstrues the law, it misunderstands—and\nthreatens—the creative process.\nStart with what the statute tells us about whether the\nfactor 1 inquiry should disregard Warhol’s creative contri-\nbutions because he licensed his work. (Sneak preview: It\nshouldn’t.) The majority claims the text as its strong suit,\nviewing our precedents’ inquiry into new expression and\nmeaning as a faulty “paraphrase” of the statutory language.\nAnte, at 28–30. But it is the majority, not Campbell and\nGoogle, that misreads §107(1). First, the key term “charac-\nter” plays little role in the majority’s analysis. See ante, at\n12–13, 22–23, and n. 11, 29 (statements of central test or\nholding referring only to “purpose”). And you can see why,\ngiven the counter-intuitive meaning the majority (every so\noften) provides. See ante, at 24–25, and n. 14. When refer-\nring to the “character” of what Warhol did, the majority\nsays merely that he “licensed Orange Prince to Condé Nast\nfor $10,000.” See ante, at 24. But that reductionist view\n\n[PDF page 71]\n20    ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nKAGAN, J., dissenting\n\nrids the term of most of its ordinary meaning. “Character”\ntypically refers to a thing’s “main or essential nature[,]\nesp[ecially] as strongly marked and serving to distinguish.”\nWebster’s Third 376; see supra, at 13. The essential and\ndistinctive nature of an artist’s use of a work commonly in-\nvolves artistry—as it did here. See also Campbell, 510\nU. S., at 582, 588–589 (discussing the expressive “charac-\nter” of 2 Live Crew’s rap). So the term “character” makes\nsignificant everything the record contains—and everything\neveryone (save the majority) knows—about the differences\nin expression and meaning between Goldsmith’s photo and\nWarhol’s silkscreen.\nSecond, the majority significantly narrows §107(1)’s ref-\nerence to “purpose” (thereby paralleling its constriction of\n“character”). It might be obvious to you that artists have\nartistic purposes. And surely it was obvious to the drafters\nof a law aiming to promote artistic (and other kinds of ) cre-\nativity. But not to the majority, which again cares only\nabout Warhol’s decision to license his art. Warhol’s pur-\npose, the majority says, was just to “depict Prince in [a]\nmagazine stor[y] about Prince” in exchange for money.\nAnte, at 12–13. The majority spurns all that mattered to\nthe artist—evident on the face of his work—about “expres-\nsion, meaning, [and] message.” Campbell, 510 U. S., at 579;\nGoogle, 593 U. S., at ___ (slip op., at 24). That indifference\nto purposes beyond the commercial—for what an artist,\nmost fundamentally, wants to communicate—finds no sup-\nport in §107(1).7\n——————\n7 The majority seeks some statutory backing in what it describes as\n\n§107’s reference to the “specific ‘use’ ” of a work “alleged to be ‘an infringe-\nment.’ ” Ante, at 20; see also ante, at 2, 4 (GORSUCH, J., concurring). Be-\ncause the challenged use here is a licensing (so says the majority), all\nthat matters is that Goldsmith engaged in similar commercial transac-\ntions. But the majority is both rewriting and splicing the statute. The\nkey part of the statute simply asks whether the “use made of a [copy-\nrighted] work” is fair. (The term “alleged infringement,” which the ma-\njority banks on, nowhere exists in the text; indeed, all the statute says\n\n[PDF page 72]\nCite as: 598 U. S. ____ (2023)                    21\n\nKAGAN, J., dissenting\n\nStill more, the majority’s commercialism-über-alles view\nof the factor 1 inquiry fits badly with two other parts of the\nfair-use provision. To begin, take the preamble, which gives\nexamples of uses often thought fair: “criticism, comment,\nnews reporting, teaching[,] . . . scholarship, or research.”\n§107. As we have explained, an emphasis on commercial-\nism would “swallow” those uses—that is, would mostly de-\nprive them of fair-use protection. Campbell, 510 U. S., at\n584. For the listed “activities are generally conducted for\nprofit in this country.” Ibid. (internal quotation marks\nomitted). “No man but a blockhead,” Samuel Johnson once\nnoted, “ever wrote[ ] except for money.” 3 Boswell’s Life of\nJohnson 19 (G. Hill ed. 1934). And Congress of course knew\nthat when it drafted the preamble.\nNext, skip to the last factor in the fair-use test: “the effect\nof the use upon the potential market for or value of the cop-\nyrighted work.” §107(4). You might think that when Con-\ngress lists two different factors for consideration, it is be-\ncause the two factors are, well, different. But the majority\ntransplants factor 4 into factor 1. Recall that the majority\nconducts a kind of market analysis: Warhol, the majority\nsays, licensed his portrait of Prince to a magazine that\nGoldsmith could have licensed her photo to—and so may\nhave caused her economic harm. See ante, at 22–23; see\nalso ante, at 19 (focusing on whether a follow-on work is a\nmarket “substitute” for the original); ante, at 4 (GORSUCH,\nJ., concurring) (describing the “salient point” as whether\nWarhol’s “use involved competition with Ms. Goldsmith’s\n——————\nabout infringement, and in a separate sentence, is that a fair use doesn’t\ncount as one.) The statute—that is, the actual one—thus focuses atten-\ntion on what the copier does with the underlying work. So when the\nstatute more particularly asks (in factor 1) about the “purpose and char-\nacter of the use”—meaning again, the “use made of [the copyrighted]\nwork”—it is asking to what end, and with what result, the copier made\nuse of the original. And that necessarily involves the issue of transfor-\nmation—more specifically here, how Warhol’s silkscreen transformed\nGoldsmith’s photo.\n\n[PDF page 73]\n22   ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nKAGAN, J., dissenting\n\nimage”). That issue is no doubt important in the fair-use\ninquiry. But it is the stuff of factor 4: how Warhol’s use\naffected the “value of ” or “market for” Goldsmith’s photo.\nFactor 1 focuses on the other side of the equation: the new\nexpression, meaning, or message that may come from some-\none else using the original. Under the statute, courts are\nsupposed to strike a balance between the two—and thus be-\ntween rewarding original creators and enabling others to\nbuild on their works. That cannot happen when a court, à\nla the majority, double-counts the first goal and ignores the\nsecond.\nIs it possible I overstate the matter? I would like for that\nto be true. And a puzzling aspect of today’s opinion is that\nit occasionally acknowledges the balance that the fair-use\nprovision contemplates. So, for example, the majority notes\nafter reviewing the relevant text that “the central question\n[the first factor] asks” is whether the new work “adds some-\nthing new” to the copyrighted one. Ante, at 15 (internal\nquotation marks omitted). Yes, exactly. And in other\nplaces, the majority suggests that a court should consider\nin the factor 1 analysis not merely the commercial context\nbut also the copier’s addition of “new expression,” including\nnew meaning or message. Ante, at 12; see ante, at 18, 24–\n25, n. 13, 25, 32. In that way, the majority opinion differs\nfrom JUSTICE GORSUCH’s concurrence, which would exclude\nall inquiry into whether a follow-on work is transformative.\nSee ante, at 2, 4. And it is possible lower courts will pick up\non that difference, and ensure that the “newness” of a fol-\nlow-on work will continue to play a significant role in the\nfactor 1 analysis. If so, I’ll be happy to discover that my\n“claims [have] not age[d] well.” Ante, at 36. But that would\nrequire courts to do what the majority does not: make a se-\nrious inquiry into the follow-on artist’s creative contribu-\ntions. The majority’s refusal to do so is what creates the\noddity at the heart of today’s opinion. If “newness” matters\n(as the opinion sometimes says), then why does the majority\n\n[PDF page 74]\nCite as: 598 U. S. ____ (2023)            23\n\nKAGAN, J., dissenting\n\ndismiss all the newness Warhol added just because he li-\ncensed his portrait to Condé Nast? And why does the ma-\njority insist more generally that in a commercial context\n“convey[ing] a new meaning or message” is “not enough for\nthe first factor to favor fair use”? Ante, at 35.\nCertainly not because of our precedent—which conflicts\nwith nearly all the majority says. As explained earlier, this\nCourt has decided two important cases about factor 1. See\nsupra, at 14–16. In each, the copier had built on the origi-\nnal to make a product for sale—so the use was patently\ncommercial. And in each, that fact made no difference, be-\ncause the use was also transformative. The copier, we held,\nhad made a significant creative contribution—had added\nreal value. So in Campbell, we did not ask whether 2 Live\nCrew and Roy Orbison both meant to make money by “in-\ncluding a catchy song about women on a record album.” But\ncf. ante, at 12–13 (asking whether Warhol and Goldsmith\nboth meant to charge for “depict[ing] Prince in magazine\nstories about Prince”). We instead asked whether 2 Live\nCrew had added significant “new expression, meaning,\n[and] message”; and because we answered yes, we held that\nthe group’s rap song did not “merely supersede the objects\nof the original creation.” 510 U. S., at 579 (internal quota-\ntion marks and alteration omitted). Similarly, in Google,\nwe took for granted that Google (the copier) and Sun (the\noriginal author) both meant to market software platforms\nfacilitating the same tasks—just as (in the majority’s re-\nfrain) Warhol and Goldsmith both wanted to market images\ndepicting the same subject. See 593 U. S., at ___, ___ (slip\nop., at 25, 27). “So what?” was our basic response. Google’s\ncopying had enabled the company to make a “highly crea-\ntive and innovative tool,” advancing “creative progress” and\nthus serving “the basic constitutional objective of copy-\nright.” Id., at ___ (slip op., at 25) (internal quotation marks\nomitted). Search today’s opinion high and low, you will see\n\n[PDF page 75]\n24   ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nKAGAN, J., dissenting\n\nno such awareness of how copying can help produce valua-\nble new works.\nNor does our precedent support the majority’s strong dis-\ntinction between follow-on works that “target” the original\nand those that do not. Ante, at 35. (Even the majority does\nnot claim that anything in the text does so.) True enough\nthat the rap song in Campbell fell into the former category:\n2 Live Crew urged that its work was a parody of Orbison’s\nsong. But even in discussing the value of parody, Campbell\nmade clear the limits of targeting’s importance. The Court\nobserved that as the “extent of transformation” increases,\nthe relevance of targeting decreases. 510 U. S., at 581,\nn. 14. Google proves the point. The new work there did not\nparody, comment on, or otherwise direct itself to the old:\nThe former just made use of the latter for its own devices.\nYet that fact never made an appearance in the Court’s opin-\nion; what mattered instead was the “highly creative” use\nGoogle had made of the copied code. That decision is on\npoint here. Would Warhol’s work really have been more\nworthy of protection if it had (somehow) “she[d] light” on\nGoldsmith’s photograph, rather than on Prince, his celeb-\nrity status, and celebrity culture? Ante, at 27. Would that\nGoldsmith-focused work (whatever it might be) have more\nmeaningfully advanced creative progress, which is copy-\nright’s raison d’être, than the work he actually made? I\ncan’t see how; more like the opposite. The majority’s pref-\nerence for the directed work, apparently on grounds of ne-\ncessity, see ante, at 27, 34–35, again reflects its undervalu-\ning of transformative copying as a core part of artistry.\nAnd there’s the rub. (Yes, that’s mostly Shakespeare.) As\nCongress knew, and as this Court once saw, new creations\ncome from building on—and, in the process, transforming—\nthose coming before. Today’s decision stymies and sup-\npresses that process, in art and every other kind of creative\nendeavor. The decision enhances a copyright holder’s\npower to inhibit artistic development, by enabling her to\n\n[PDF page 76]\nCite as: 598 U. S. ____ (2023)                    25\n\nKAGAN, J., dissenting\n\nblock even the use of a work to fashion something quite dif-\nferent. Or viewed the other way round, the decision im-\npedes non-copyright holders’ artistic pursuits, by prevent-\ning them from making even the most novel uses of existing\nmaterials. On either account, the public loses: The decision\noperates to constrain creative expression.8\nThe effect, moreover, will be dramatic. Return again to\nJustice Story, see supra, at 11–12: “[I]n literature, in sci-\nence and in art, there are, and can be, few, if any, things”\nthat are “new and original throughout.” Campbell, 510\nU. S., at 575 (quoting Emerson, 8 F. Cas., at 619). Every\nwork “borrows, and must necessarily” do so. 510 U. S., at\n575. Creators themselves know that fact deep in their\nbones. Here is Mark Twain on the subject: “The kern[e]l,\nthe soul—let us go further and say the substance, the bulk,\nthe actual and valuable material” of creative works—all are\n“consciously and unconsciously drawn from a million out-\nside sources.” Letter from M. Twain to H. Keller, in 2 Mark\nTwain’s Letters 731 (1917); see also id., at 732 (quoting Ol-\niver Wendell Holmes—no, not that one, his father the\npoet—as saying “I have never originated anything alto-\ngether myself, nor met anybody who had”). “[A]ppropria-\ntion, mimicry, quotation, allusion and sublimated collabo-\nration,” novelist Jonathan Lethem has explained, are “a\nkind of sine qua non of the creative act, cutting across all\nforms and genres in the realm of cultural production.” The\n——————\n8 No worries, the majority says: Today’s decision is only about the com-\n\nmercial licensing of artistic works, not about their “creation” or their\nother uses. See ante, at 21, and n. 10. So, for example, if Warhol had\nused his Prince silkscreen “for teaching purposes” or sought to “display\n[it] in a nonprofit museum,” the first factor could have gone the other\nway. Ante, at 21, n. 10; ante, at 6 (GORSUCH, J., concurring). But recall\nwhat Samuel Johnson said about “blockheads”: Unless an artist is one,\nhe makes art for money. See supra, at 21. So when the majority denies\nfollow-on artists the full reward of their creativity, it diminishes their\nincentive to create. And as should go without saying, works not created\nwill not appear in classrooms and museums.\n\n[PDF page 77]\n26    ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nKAGAN, J., dissenting\n\nEcstasy of Influence, in Harper’s Magazine 61 (Feb. 2007).\nOr as Mary Shelley once wrote, there is no such thing as\n“creating out of [a] void.” Frankenstein ix (1831).9\nConsider, in light of those authorial references, how the\nmajority’s factor 1 analysis might play out in literature.\nAnd why not start with the best? Shakespeare borrowed\nover and over and over. See, e.g., 8 Narrative and Dramatic\nSources of Shakespeare 351–352 (G. Bullough ed. 1975)\n(“Shakespeare was an adapter of other men’s tales and\nplays; he liked to build a new construction on something\ngiven”). I could point to a whole slew of works, but let’s take\nRomeo and Juliet as an example. Shakespeare’s version\ncopied most directly from Arthur Brooke’s The Tragical His-\ntory of Romeus and Juliet, written a few decades earlier\n(though of course Brooke copied from someone, and that\nperson copied from someone, and that person . . . going back\nat least to Ovid’s story about Pyramus and Thisbe). Shake-\nspeare took plot, characters, themes, even passages: The\nfriar’s line to Romeo, “Art thou a man? Thy form cries out\nthou art,” appeared in Brooke as “Art thou a man? The\nshape saith so thou art.” Bullough 387. (Shakespeare was,\namong other things, a good editor.) Of course Shakespeare\nalso added loads of genius, and so made the borrowed sto-\nries “uniquely Shakespearian.” G. Williams, Shakespeare’s\nBasic Plot Situation, 2 Shakespeare Quarterly No. 4, p. 313\n(Oct. 1951). But on the majority’s analysis? The two\nworks—Shakespeare’s and Brooke’s—are just two stories of\nstar-crossed lovers written for commercial gain. Shake-\nspeare would not qualify for fair use; he would not even\n——————\n9 OK, one last one: T. S. Eliot made the same point more, shall we say,\n\npoetically. We often harp, he wrote, on “the poet’s difference from his\npredecessors.” The Sacred Wood 43 (1921). “[But] we shall often find\nthat not only the best, but the most individual parts of his work may be\nthose in which the dead poets, his ancestors, assert their immortality\nmost vigorously. . . . No poet, no artist of any art, has his complete mean-\ning alone.” Id., at 43–44.\n\n[PDF page 78]\nCite as: 598 U. S. ____ (2023)            27\n\nKAGAN, J., dissenting\n\ncome out ahead on factor 1.\nAnd if you think that’s just Shakespeare, here are a cou-\nple more. (Once you start looking, examples are every-\nwhere.) Lolita, though hard to read today, is usually\nthought one of the greatest novels of the 20th century. But\nthe plotline—an adult man takes a room as a lodger; em-\nbarks on an obsessive sexual relationship with the preteen\ndaughter of the house; and eventually survives her death,\nremaining marked forever—appears in a story by Heinz von\nLichberg written a few decades earlier. Oh, and the girl’s\nname is Lolita in both versions. See generally M. Maar, The\nTwo Lolitas (2005). All that said, the two works have little\nin common artistically; nothing literary critics admire in\nthe second Lolita is found in the first. But to the majority?\nJust two stories of revoltingly lecherous men, published for\nprofit. So even factor 1 of the fair-use inquiry would not aid\nNabokov. Or take one of the most famed adventure stories\never told. Here is the provenance of Treasure Island, as\nRobert Louis Stevenson himself described it:\n“No doubt the parrot once belonged to Robinson Cru-\nsoe. No doubt the skeleton is conveyed from [Edgar Al-\nlan] Poe. I think little of these, they are trifles and de-\ntails; and no man can hope to have a monopoly of\nskeletons or make a corner in talking birds. . . . It is my\ndebt to Washington Irving that exercises my con-\nscience, and justly so, for I believe plagiarism was\nrarely carried farther. . . . Billy Bones, his chest, the\ncompany in the parlor, the whole inner spirit and a\ngood deal of the material detail of my first chapters—\nall were there, all were the property of Washington Ir-\nving.” My First Book—Treasure Island, in 21 Syracuse\nUniversity Library Associates Courier No. 2, p. 84\n(1986).\nOdd that a book about pirates should have practiced piracy?\nNot really, because tons of books do—and not many in order\n\n[PDF page 79]\n28   ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nKAGAN, J., dissenting\n\nto “target” or otherwise comment on the originals. “Thomas\nMann, himself a master of [the art,] called [it] ‘higher crib-\nbing.’ ” Lethem 59. The point here is that most writers\nworth their salt steal other writers’ moves—and put them\nto other, often better uses. But the majority would say,\nagain and yet again in the face of such transformative cop-\nying, “no factor 1 help and surely no fair use.”\nOr how about music? Positively rife with copying of all\nkinds. Suppose some early blues artist (W. C. Handy, per-\nhaps?) had copyrighted the 12-bar, three-chord form—the\nessential foundation (much as Goldsmith’s photo is to War-\nhol’s silkscreen) of many blues songs. Under the majority’s\nview, Handy could then have controlled—meaning, cur-\ntailed—the development of the genre. And also of a fair bit\nof rock and roll. “Just another rendition of 12-bar blues for\nsale in record stores,” the majority would say to Chuck\nBerry (Johnny B. Goode), Bill Haley (Rock Around the\nClock), Jimi Hendrix (Red House), or Eric Clapton (Cross-\nroads). Or to switch genres, imagine a pioneering classical\ncomposer (Haydn?) had copyrighted the three-section so-\nnata form. “One more piece built on the same old structure,\nfor use in concert halls,” the majority might say to Mozart\nand Beethoven and countless others: “Sure, some new\nnotes, but the backbone of your compositions is identical.”\nAnd then, there’s the appropriation of those notes, and\naccompanying words, for use in new and different ways.\nStravinsky reportedly said that great composers do not im-\nitate, but instead steal. See P. Yates, Twentieth Century\nMusic 41 (1967). At any rate, he would have known. He\ntook music from all over—from Russian folk melodies to\nSchoenberg—and made it inimitably his own. And then—\nas these things go—his music became a source for others.\nCharlie Parker turned The Rite of Spring into something of\na jazz standard: You can still hear the Stravinsky lurking,\nbut jazz musicians make the composition a thing of a differ-\nent kind. And popular music? I won’t point fingers, but\n\n[PDF page 80]\nCite as: 598 U. S. ____ (2023)                    29\n\nKAGAN, J., dissenting\n\nmaybe rock’s only Nobel Laureate and greatest-ever lyricist\nis known for some appropriations? See M. Gilmore, The\nRolling Stone Interview, Rolling Stone, Sept. 27, 2012, pp.\n51, 81.10 He wouldn’t be alone. Here’s what songwriter\nNick Cave (he of the Bad Seeds) once said about how music\ndevelops:\n“The great beauty of contemporary music, and what\ngives it its edge and vitality, is its devil-may-care atti-\ntude toward appropriation—everybody is grabbing\nstuff from everybody else, all the time. It’s a feeding\nfrenzy of borrowed ideas that goes toward the advance-\nment of rock music—the great artistic experiment of\nour era.” The Red Hand Files (Apr. 2020) (online\nsource archived at https://www.supremecourt.gov).\nBut not as the majority sees the matter. Are these guys\nmaking money? Are they appropriating for some different\nreason than to critique the thing being borrowed? Then\nthey’re “shar[ing] the objectives” of the original work, and\nwill get no benefit from factor 1, let alone protection from\n——————\n10 He is, though, also one of modern music’s most bounteous sources.\n\nHis work has been copied so often that Rolling Stone (whose name was\npartly inspired by—OK, you guessed it—Bob Dylan) recently published\na list of the 80 greatest Dylan covers. See J. Wenner, A Letter from the\nEditor, Rolling Stone, Nov. 9, 1967, p. 2; J. Dolan et al., The 80 Greatest\nDylan Covers of All Time, Rolling Stone, May 24, 2021 (online source\narchived at https://www.supremecourt.gov). (The list’s collators noted\nthat Dylan so “loved the ide[a] of other people doing his songs” that they\nstruggled to settle on 80. Ibid.) To see how important all that copying\nwas, consider Mr. Tambourine Man. When the Byrds first heard Dylan’s\ndemo of the song, they weren’t sure they could use it. (David Crosby\nthought it was way too long.) But Roger McGuinn decided he could\n“save” the tune. Ibid. Add a Bach-inspired guitar lick (truly, J. S. Bach)\nand a Beatles-inspired beat, and the “pound of Dylan’s acoustic guitars”\nwas “transformed” into a “danceable” and “uplifting” megahit. R. Unter-\nberger, Turn! Turn! Turn! 137 (2002). And that rendition (not Dylan’s\nown) launched a thousand ships. Among other things, it “spawned an\nentirely new style” of music—what soon came to be known as “folk-rock.”\nId., at 108, 132–133.\n\n[PDF page 81]\n30   ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nKAGAN, J., dissenting\n\nthe whole fair-use test. Ante, at 24.\nFinally, back to the visual arts, for while Warhol may\nhave been the master appropriator within that field, he had\nplenty of company; indeed, he worked within an established\ntradition going back centuries (millennia?). The represent-\natives of three giants of modern art (you may know one for\nhis use of comics) describe the tradition as follows: “[T]he\nuse and reuse of existing imagery” are “part of art’s life-\nblood”—“not just in workaday practice or fledgling student\nefforts, but also in the revolutionary moments of art his-\ntory.” Brief for Robert Rauschenberg, Roy Lichtenstein,\nand Joan Mitchell Foundations et al. as Amici Curiae 6.\nConsider as one example the reclining nude. Probably\nthe first such figure in Renaissance art was Giorgione’s\nSleeping Venus. (Note, though, in keeping with the “noth-\ning comes from nothing” theme, that Giorgione apparently\nmodeled his canvas on a woodcut illustration by Francesco\nColonna.) Here is Giorgione’s painting:\n\n\n\n\nGiorgione, Sleeping Venus, c. 1510, oil on canvas\n\n[PDF page 82]\nCite as: 598 U. S. ____ (2023)           31\n\nKAGAN, J., dissenting\n\nBut things were destined not to end there. One of Gior-\ngione’s pupils was Titian, and the former student undertook\nto riff on his master. The resulting Venus of Urbino is a\nprototypical example of Renaissance imitatio—the creation\nof an original work from an existing model. See id., at 8; 1\nG. Vasari, Lives of the Artists 31, 444 (G. Bull transl. 1965).\nYou can see the resemblance—but also the difference:\n\n\n\n\nTitian, Venus of Urbino, 1538, oil on canvas\n\nThe majority would presumably describe these Renaissance\ncanvases as just “two portraits of reclining nudes painted to\nsell to patrons.” Cf. ante, at 12–13, 22–23. But wouldn’t\nthat miss something—indeed, everything—about how an\nartist engaged with a prior work to create new expression\nand add new value?\nAnd the reuse of past images was far from done. For here\nis Édouard Manet’s Olympia, now considered a founda-\ntional work of artistic modernism, but referring in obvious\nways to Titian’s (and back a step, to Giorgione’s) Venus:\n\n[PDF page 83]\n32   ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nKAGAN, J., dissenting\n\n\n\n\nManet, Olympia, 1863, oil on canvas\n\nHere again consider the account of the Rauschenberg, Lich-\ntenstein, and Mitchell Foundations: “The revolutionary\nshock of the painting depends on how traditional imagery\nremains the painting’s recognizable foundation, even as\nthat imagery is transformed and wrenched into the pre-\nsent.” Brief as Amici Curiae 9. It is an especially striking\nexample of a recurrent phenomenon—of how the develop-\nment of visual art works across time and place, constantly\nbuilding on what came earlier. In fact, the Manet has itself\nspawned further transformative paintings, from Cézanne\nto a raft of contemporary artists across the globe. See id.,\nat 10–11. But the majority, as to these matters, is uninter-\nested and unconcerned.\nTake a look at one last example, from a modern master\nvery different from Warhol, but availing himself of the same\nappropriative traditions. On the left (below) is Velázquez’s\nportrait of Pope Innocent X; on the right is Francis Bacon’s\nStudy After Velázquez’s Portrait.\n\n[PDF page 84]\nCite as: 598 U. S. ____ (2023)                 33\n\nKAGAN, J., dissenting\n\n\n\n\nVelázquez, Pope Innocent X,       Francis Bacon, Study After\nc. 1650, oil on canvas        Velázquez’s Portrait of Pope\nInnocent X, 1953, oil on canvas\n\n\nTo begin with, note the word “after” in Bacon’s title. Copy-\ning is so deeply rooted in the visual arts that there is a nam-\ning convention for it, with “after” denoting that a painting\nis some kind of “imitation of a known work.” M. Clarke, The\nConcise Oxford Dictionary of Art Terms 5 (2d ed. 2010). Ba-\ncon made frequent use of that convention. He was espe-\ncially taken by Velázquez’s portrait of Innocent X, referring\nto it in tens of paintings. In the one shown above, Bacon\nretained the subject, scale, and composition of the Veláz-\nquez original. Look at one, look at the other, and you know\nBacon copied. But he also transformed. He invested his\nportrait with new “expression, meaning, [and] message,”\nconverting Velázquez’s study of magisterial power into one\nof mortal dread. Campbell, 510 U. S., at 579.\nBut the majority, from all it says, would find the change\nimmaterial. Both paintings, after all, are “portraits of\n[Pope Innocent X] used to depict [Pope Innocent X]” for\nhanging in some interior space, ante, at 12–13; so on the\n\n[PDF page 85]\n34   ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nKAGAN, J., dissenting\n\nmajority’s reasoning, someone in the market for a papal\nportrait could use either one, see ante, at 22–23. Veláz-\nquez’s portrait, although Bacon’s model, is not “the object of\n[his] commentary.” Ante, at 27; see A. Zweite, Bacon’s\nScream, in Francis Bacon: The Violence of the Real 71 (A.\nZweite ed. 2006) (Bacon “was not seeking to expose Veláz-\nquez’s masterpiece,” but instead to “adapt it” and “give it a\nnew meaning”). And absent that “target[ing],” the majority\nthinks the portraits’ distinct messages make no difference.\nAnte, at 27. Recall how the majority deems irrelevant the\nDistrict Court’s view that the Goldsmith Prince is vulnera-\nble, the Warhol Prince iconic. Too small a “degree of differ-\nence,” according to the majority. Ante, at 33–34; see supra,\nat 17. So too here, presumably: the stolid Pope, the dis-\nturbed Pope—it just doesn’t matter. But that once again\nmisses what a copier accomplished: the making of a wholly\nnew piece of art from an existing one.\nThe majority thus treats creativity as a trifling part of the\nfair-use inquiry, in disregard of settled copyright principles\nand what they reflect about the artistic process. On the\nmajority’s view, an artist had best not attempt to market\neven a transformative follow-on work—one that adds sig-\nnificant new expression, meaning, or message. That added\nvalue (unless it comes from critiquing the original) will no\nlonger receive credit under factor 1. And so it can never\nhope to outweigh factor 4’s assessment of the copyright\nholder’s interests. The result will be what this Court has\noften warned against: suppression of “the very creativity\nwhich [copyright] law is designed to foster.” Stewart, 495\nU. S., at 236; see supra, at 11–12. And not just on the mar-\ngins. Creative progress unfolds through use and reuse,\nframing and reframing: One work builds on what has gone\nbefore; and later works build on that one; and so on through\ntime. Congress grasped the idea when it directed courts to\nattend to the “purpose and character” of artistic borrow-\n\n[PDF page 86]\nCite as: 598 U. S. ____ (2023)           35\n\nKAGAN, J., dissenting\n\ning—to what the borrower has made out of existing materi-\nals. That inquiry recognizes the value in using existing ma-\nterials to fashion something new. And so too, this Court—\nfrom Justice Story’s time to two Terms ago—has known\nthat it is through such iterative processes that knowledge\naccumulates and art flourishes. But not anymore. The ma-\njority’s decision is no “continuation” of “existing copyright\nlaw.” Ante, at 37. In declining to acknowledge the im-\nportance of transformative copying, the Court today, and\nfor the first time, turns its back on how creativity works.\nIII\nAnd the workings of creativity bring us back to Andy\nWarhol. For Warhol, as this Court noted in Google, is the\nvery embodiment of transformative copying. He is proof of\nconcept—that an artist working from a model can create\nimportant new expression. Or said more strongly, that ap-\npropriations can help bring great art into being. Warhol is\na towering figure in modern art not despite but because of\nhis use of source materials. His work—whether Soup Cans\nand Brillo Boxes or Marilyn and Prince—turned something\nnot his into something all his own. Except that it also be-\ncame all of ours, because his work today occupies a signifi-\ncant place not only in our museums but in our wider artistic\nculture. And if the majority somehow cannot see it—well,\nthat’s what evidentiary records are for. The one in this case\ncontained undisputed testimony, and lots of it, that War-\nhol’s Prince series conveyed a fundamentally different idea,\nin a fundamentally different artistic style, than the photo\nhe started from. That is not the end of the fair-use inquiry.\nThe test, recall, has four parts, with one focusing squarely\non Goldsmith’s interests. But factor 1 is supposed to meas-\nure what Warhol has done. Did his “new work” “add[ ]\nsomething new, with a further purpose or different charac-\nter”? Campbell, 510 U. S., at 579. Did it “alter[ ] the first\nwith new expression, meaning, or message”? Ibid. It did,\n\n[PDF page 87]\n36   ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.\nv. GOLDSMITH\nKAGAN, J., dissenting\n\nand it did. In failing to give Warhol credit for that trans-\nformation, the majority distorts ultimate resolution of the\nfair-use question.\nStill more troubling are the consequences of today’s rul-\ning for other artists. If Warhol does not get credit for trans-\nformative copying, who will? And when artists less famous\nthan Warhol cannot benefit from fair use, it will matter\neven more. Goldsmith would probably have granted War-\nhol a license with few conditions, and for a price well within\nhis budget. But as our precedents show, licensors some-\ntimes place stringent limits on follow-on uses, especially to\nprevent kinds of expression they disapprove. And licensors\nmay charge fees that prevent many or most artists from\ngaining access to original works. Of course, that is all well\nand good if an artist wants merely to copy the original and\nmarket it as his own. Preventing those uses—and thus in-\ncentivizing the creation of original works—is what copy-\nrights are for. But when the artist wants to make a trans-\nformative use, a different issue is presented. By now, the\nreason why should be obvious. “Inhibit[ing] subsequent\nwriters” and artists from “improv[ing] upon prior works”—\nas the majority does today—will “frustrate the very ends\nsought to be attained” by copyright law. Harper & Row, 471\nU. S., at 549. It will stifle creativity of every sort. It will\nimpede new art and music and literature. It will thwart the\nexpression of new ideas and the attainment of new\nknowledge. It will make our world poorer."
    },
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      "content": "The first fair-use factor favored Goldsmith for AWF's 2016 licensing of Orange Prince to Condé Nast. The photograph and licensed image served substantially the same magazine-illustration purpose, and the challenged use was commercial. A new meaning or message alone does not settle the first factor. See Warhol, opinion of the Court, pp. 20–27, 32–38.\n\nThe Court did not decide whether creating, displaying, or selling the original Prince Series works would be fair use. Its analysis addressed the particular license at issue. See opinion of the Court, pp. 21–22.\n\nKagan's dissent, joined by Roberts, argues that Warhol's transformation should favor fair use under the first factor. That is the dissent's position, not the holding.\n\nFor our publisher, the proposed commercial cover use resembles the use the majority examined. The artist's assurance about a changed message does not, by itself, resolve the first-factor question. We should compare the precise purposes and licensing circumstances before giving a clearance recommendation. This memo addresses the first factor; it does not resolve all four factors or determine the outcome for the client's proposed image."
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