Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith

NOTICE: This opinion is subject to formal revision before
publication in the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United
States, Washington, D. C. 20543, pio@supremecourt.gov, of any
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															SUPREME COURT OF THE UNITED STATES _________________ No. 21-869 _________________ ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS, INC., PETITIONER v. LYNN GOLDSMITH, et al.

															on writ of certiorari to the united states court of appeals for
the second circuit

															[May 18, 2023]

															Justice Sotomayor delivered the opinion of the Court.

															This copyright case involves not one, but two artists. The
first, Andy Warhol, is well known. His images of products like
Campbell's soup cans and of celebrities like Marilyn Monroe appear
in museums around the world. Warhol's contribution to contemporary
art is undeniable.

															The second, Lynn Goldsmith, is less well known. But she too was
a trailblazer. Goldsmith began a career in rock-and-roll
photography when there were few women in the genre. Her
award-winning concert and portrait images, however, shot to the
top. Goldsmith's work appeared in Life, Time, Rolling Stone, and
People magazines, not to mention the National Portrait Gallery and
the Museum of Modern Art. She captured some of the 20th century's
greatest rock stars: Bob Dylan, Mick Jagger, Patti Smith, Bruce
Springsteen, and, as relevant here, Prince.

															In 1984, Vanity Fair sought to license one of Goldsmith's Prince
photographs for use as an "artist reference." The magazine wanted
the photograph to help illustrate a story about the musician.
Goldsmith agreed, on the condition

															that the use of her photo be for "one time" only. 1 App. 85. The
artist Vanity Fair hired was Andy Warhol. Warhol made a silkscreen
using Goldsmith's photo, and Vanity Fair published the resulting
image alongside an article about Prince. The magazine credited
Goldsmith for the "source photograph," and it paid her $400. 2 id. , at 323, 325-326.

															Warhol, however, did not stop there. From Goldsmith's
photograph, he derived 15 additional works. Later, the Andy Warhol
Foundation for the Visual Arts, Inc. (AWF) licensed one of those
works to Condé Nast, again for the purpose of illustrating a
magazine story about Prince. AWF came away with $10,000. Goldsmith
received nothing.

															When Goldsmith informed AWF that she believed its use of her
photograph infringed her copyright, AWF sued her. The District
Court granted summary judgment for AWF on its assertion of "fair
use," 17 U. S. C. §107, but the Court of Appeals for the Second
Circuit reversed. In this Court, the sole question presented is
whether the first fair use factor, "the purpose and character of
the use, including whether such use is of a commercial nature or is
for nonprofit educational purposes," §107(1), weighs in favor of
AWF's recent commercial licensing to Condé Nast. On that narrow
issue, and limited to the challenged use, the Court agrees with the
Second Circuit: The first factor favors Goldsmith, not AWF.

															I

															Lynn Goldsmith is a professional photographer. Her specialty is
concert and portrait photography of musicians. At age 16, Goldsmith
got one of her first shots: an image of the Beatles' "trendy boots"
before the band performed live on The Ed Sullivan Show. S. Michel,
Rock Portraits, N. Y. Times, Dec. 2, 2007, p. G64. Within 10 years,
Goldsmith had photographed everyone from Led Zeppelin to James
Brown (the latter in concert in Kinshasa, no less). At that time,
Goldsmith "had few female peers." Ibid. But she was a
self-starter. She quickly became "a leading rock photographer" in
an era "when women on the scene were largely dismissed as
groupies." Ibid. In 1981, Goldsmith convinced Newsweek magazine to hire her to
photograph Prince Rogers Nelson, then an "up and coming" and "hot
young musician." 2 App. 315. Newsweek agreed, and Goldsmith took
photos of Prince in concert at the Palladium in New York City and
in her studio on West 36th Street. Newsweek ran one of the concert
photos, together with an article titled " 'The Naughty Prince of
Rock.' " Id. , at 320. Goldsmith retained the other photos.
She holds copyright in all of them.

															One of Goldsmith's studio photographs, a black and white
portrait of Prince, is the original copyrighted work at issue in
this case. See fig. 1, infra . Figure 1. A black and white portrait
photograph of Prince taken in 1981 by Lynn Goldsmith. In 1984, Goldsmith, through her agency, licensed that photograph
to Vanity Fair to serve as an "artist reference for an
illustration" in the magazine. 1 App. 85. The terms of the license
were that the illustration was "to be published in Vanity Fair
November 1984 issue. It can appear one time full page and one time
under one quarter page. No other usage right granted." Ibid .
Goldsmith was to receive $400 and a source credit.

															To make the illustration, Vanity Fair hired pop artist Andy
Warhol. Warhol was already a major figure in American art, known
among other things for his silkscreen portraits of
celebrities.[ 1 ] From Goldsmith's photograph,
Warhol created a silkscreen portrait of Prince, which appeared
alongside an article about Prince in the November 1984 issue of
Vanity Fair. See fig. 2, infra . The article, titled "Purple
Fame," is primarily about the "sexual style" of the new celebrity
and his music. Vanity Fair, Nov. 1984, p. 66. Goldsmith received
her $400 fee, and Vanity Fair credited her for the "source
photograph." 2 App. 323, 325-326. Warhol received an unspecified
amount. Figure 2. A purple silkscreen portrait
of Prince created in 1984 by Andy Warhol to illustrate an article
in Vanity Fair. In addition to the single illustration
authorized by the Vanity Fair license, Warhol created 15 other
works based on Goldsmith's photograph: 13 silkscreen prints and two
pencil drawings. The works are collectively referred to as the
"Prince Series." See Appendix, infra . Goldsmith did not know
about the Prince Series until 2016, when she saw the image of an
orange silkscreen portrait of Prince ("Orange Prince") on the cover
of a magazine published by Vanity Fair's parent company, Condé
Nast. See fig. 3, infra . Figure 3. An orange silkscreen portrait of Prince on the cover
of a special edition magazine published in 2016 by Condé
Nast. By that time, Warhol had died, and the Prince Series had passed
to the Andy Warhol Foundation for the Visual Arts, Inc. AWF no
longer possesses the works,[ 2 ] but it asserts
copy- right in them. It has licensed images of the works for
commercial and editorial uses. In particular, after Prince died in
2016, Condé Nast contacted AWF about the possibility of reusing the
1984 Vanity Fair image for a special edition magazine that would
commemorate Prince. Once AWF informed Condé Nast about the other
Prince Series images, however, Condé Nast obtained a license to
publish Orange Prince instead. The magazine, titled "The Genius of
Prince," is a tribute to "Prince Rogers Nelson, 1958-2016." It is
"devoted to Prince." 2 App. 352. Condé Nast paid AWF $10,000 for
the license. Goldsmith received neither a fee nor a source
credit.

															Remember that Goldsmith, too, had licensed her Prince images to
magazines such as Newsweek, to accompany a story about the
musician, and Vanity Fair, to serve as an artist reference. But
that was not all. Between 1981 and 2016, Goldsmith's photos of
Prince appeared on or between the covers of People, Readers Digest,
Guitar World, and Musician magazines. See, e.g. , fig. 4, infra . Figure 4. One of Lynn Goldsmith's photographs of Prince on the
cover of Musician magazine. People magazine, in fact, paid Goldsmith $1,000 to use one of
her copyrighted photographs in a special collector's edition,
"Celebrating Prince: 1958-2016," just after Prince died. People's
tribute, like Condé Nast's, honors the life and music of Prince.
Other magazines, including Rolling Stone and Time, also released
special editions. See fig. 5, infra . All of them depicted
Prince on the cover. All of them used a copyrighted photograph in
service of that object. And all of them (except Condé Nast)
credited the photographer. Figure 5. Four special edition magazines commemorating Prince
after he died in 2016. When Goldsmith saw Orange Prince on the cover of Condé
Nast's special edition magazine, she recognized her work. "It's the
photograph," she later testified. 1 App. 290. Orange Prince crops,
flattens, traces, and colors the photo but otherwise does not alter
it. See fig. 6, infra . Figure 6. Warhol's orange silkscreen portrait of Prince
superimposed on Goldsmith's portrait photograph. Goldsmith notified AWF of her belief that it had infringed her
copyright. AWF then sued Goldsmith and her agency for a declaratory
judgment of noninfringement or, in the alternative, fair use.
Goldsmith counterclaimed for infringement.

															The District Court granted summary judgment for AWF. 382 F.
Supp. 3d 312, 316 (SDNY 2019). The court considered the four fair
use factors enumerated in17 U. S. C. §107 and held that the Prince
Series works made fair use of Goldsmith's photograph. As to the
first factor, the works were "transformative" because, looking at
them and the photograph "side-by-side," they "have a different
character, give Goldsmith's photograph a new expression, and employ
new aesthetics with creative and communicative results distinct
from Goldsmith's." 382 F. Supp. 3d, at 325-326 (internal quotation
marks and alterations omitted). In particular, the works "can
reasonably be perceived to have transformed Prince from a
vulnerable, uncomfortable person to an iconic, larger-than-life
figure," such that "each Prince Series work is immediately
recognizable as a 'Warhol' rather than as a photograph of Prince." Id. , at 326. Although the second factor, the nature of
Goldsmith's copyrighted work (creative and unpublished), "would
ordinarily weigh in [her] favor . . . , this factor [was] of
limited importance because the Prince Series works are
transformative." Id. , at 327. The third factor, the amount
and substantiality of the portion used in relation to the
copyrighted work, favored AWF because, according to the District
Court, "Warhol removed nearly all the photograph's protectible
elements in creating the Prince Series." Id. , at 330.
Finally, the fourth factor likewise favored AWF because "the Prince
Series works are not market substitutes that have harmed-or have
the potential to harm-Goldsmith." Id. , at 331.

															The Court of Appeals for the Second Circuit reversed and
remanded. 11 F. 4th 26, 54 (2021). It held that all four fair use
factors favored Goldsmith. On the first factor, "the purpose and
character of the use," §107(1), the Court of Appeals rejected the
notion that "any secondary work that adds a new aesthetic or new
expression to its source material is necessarily transformative." Id. , at 38-39. The question was, instead, "whether the
secondary work's use of its source material is in service of a
fundamentally different and new artistic purpose and character." Id. , at 42 (internal quotation marks omitted). Such
"transformative purpose and character must, at bare minimum,
comprise something more than the imposition of another artist's
style on the primary work." Ibid. Here, however, "the
overarching purpose and function of the two works at issue . . . is
identical, not merely in the broad sense that they are created as
works of visual art, but also in the narrow but essential sense
that they are portraits of the same person." Ibid. (footnote
omitted). The Court of Appeals also rejected the District Court's
logic that " 'each Prince Series work' " is transformative because
it " 'is immediately recognizable as a "Warhol," ' " which the
Court of Appeals believed would "create a celebrity-plagiarist
privilege." Id. , at 43; see also ibid. ("[T]he fact
that Martin Scorsese's recent film The Irishman is
recognizably 'a Scorsese' does not absolve him of the obligation to
license the original book" (some internal quotation marks and
alterations omitted)).

															On the other three factors, the Court of Appeals found that the
creative and unpublished nature of Goldsmith's photograph favored
her, id. , at 45; that the amount and substantiality of the
portion taken (here, "the 'essence' " of the photograph) was not
reasonable in relation to the purpose of the use, id. , at
45-47; and that AWF's commercial licensing encroached on
Goldsmith's protected market to license her photograph "to
publications for editorial purposes and to other artists to create
derivative works," id. , at 48-51.[ 3 ] The
court noted that there was "no material dispute that both Goldsmith
and AWF have sought to license (and indeed have successfully
licensed) their respective depictions of Prince to popular print
magazines to accompany articles about him." Id. , at 49
(footnote omitted).

															Finally, although the District Court had not reached the issue,
the Court of Appeals rejected AWF's argument that the Prince Series
works were not substantially similar to Goldsmith's photograph. See id. , at 52-54.

															Judge Jacobs concurred. He stressed that the Court of Appeals'
holding "d[id] not consider, let alone decide, whether the
infringement here encumbers the original Prince Series works." Id. , at 54. Instead, "the only use at issue" was "the
Foundation's commercial licensing" of images of the Prince Series. Id. , at 55.

															This Court granted certiorari. 596 U. S. ___ (2022).

															II

															AWF does not challenge the Court of Appeals' holding that
Goldsmith's photograph and the Prince Series works are
substantially similar. The question here is whether AWF can defend
against a claim of copyright infringement because it made "fair
use" of Goldsmith's photograph.17 U. S. C. §107.

															Although the Court of Appeals analyzed each fair use factor, the
only question before this Court is whether the court below
correctly held that the first factor, "the purpose and character of
the use, including whether such use is of a commercial nature or is
for nonprofit educational purposes," §107(1), weighs in Goldsmith's
favor. AWF contends that the Prince Series works are
"transformative," and that the first factor therefore weighs in its
favor, because the works convey a different meaning or message than
the photograph. Brief for Petitioner 33. The Court of Appeals
erred, according to AWF, by not considering that new expression. Id. , at 47-48.

															But the first fair use factor instead focuses on whether an
allegedly infringing use has a further purpose or different
character, which is a matter of degree, and the degree of
difference must be weighed against other considerations, like
commercialism. Campbell v. Acuff-Rose Music,
Inc. , 510 U.S.
569 , 579 (1994). Although new expression may be relevant to
whether a copying use has a sufficiently distinct purpose or
character, it is not, without more, dispositive of the first
factor.

															Here, the specific use of Goldsmith's photograph alleged to
infringe her copyright is AWF's licensing of Orange Prince to Condé
Nast. As portraits of Prince used to depict Prince in magazine
stories about Prince, the original photograph and AWF's copying use
of it share substantially the same purpose. Moreover, the copying
use is of a commercial nature. Even though Orange Prince adds new
expression to Goldsmith's photograph, as the District Court found,
this Court agrees with the Court of Appeals that, in the context of
the challenged use, the first fair use factor still favors
Goldsmith.

															A

															The Copyright Act encourages creativity by granting to the
author of an original work "a bundle of exclusive rights." Harper & Row, Publishers, Inc. v. Nation
Enterprises , 471 U.S.
539 , 546 (1985); see U. S. Const., Art. I, §8, cl. 8 ("The
Congress shall have Power . . . To Promote the Progress of Science
and useful Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings and
Discoveries"). That bundle includes the rights to reproduce the
copyrighted work, to prepare derivative works, and, in the case of
pictorial or graphic works, to display the copyrighted work
publicly.17 U. S. C. §106.

															The Act, however, "reflects a balance of competing claims upon
the public interest: Creative work is to be encouraged and
rewarded, but private motivation must ultimately serve the cause of
promoting broad public availability of literature, music, and the
other arts." Twentieth Century Music Corp. v. Aiken , 422 U.S.
151 , 156 (1975). Copyright thus trades off the benefits of
incentives to create against the costs of restrictions on copying.
The Act, for example, limits the duration of copyright, §§302-305,
as required by the Constitution; makes facts and ideas
uncopyrightable, §102; and limits the scope of copyright owners'
exclusive rights, §§107-122.

															This balancing act between creativity and availability
(including for use in new works) is reflected in one such
limitation, the defense of "fair use." In 1976, Congress codified
the common-law doctrine of fair use in §107, which provides: "[T]he
fair use of a copyrighted work, . . . for purposes such as
criticism, comment, news reporting, teaching . . . , scholarship,
or research, is not an infringement of copy- right." To determine
whether a particular use is "fair," the statute sets out four
factors to be considered:

															"(1) the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit educational
purposes;

															"(2) the nature of the copyrighted work;

															"(3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and

															"(4) the effect of the use upon the potential market for or
value of the copyrighted work."

															The fair use doctrine "permits courts to avoid rigid application
of the copyright statute when, on occasion, it would stifle the
very creativity which that law is designed to foster." Stewart v. Abend , 495 U.S.
207 , 236 (1990) (internal quotation marks omitted). The Act's
fair use provision, in turn, "set[s] forth general principles, the
application of which requires judicial balancing, depending upon
relevant circumstances." Google LLC v. Oracle America,
Inc. , 593 U. S. ___, ___ (2021) (slip op., at 14). Because
those principles apply across a wide range of copyrightable
material, from books to photographs to software, fair use is a
"flexible" concept, and "its application may well vary depending on
context." Id. , at ___ (slip op., at 15). For example, in
applying the fair use provision, "copyright's protection may be
stronger where the copyrighted material . . . serves an artistic
rather than a utilitarian function." Ibid. 1

															The first fair use factor is "the purpose and character of the
use, including whether such use is of a commercial nature or is for
nonprofit educational purposes." §107(1). This factor considers the
reasons for, and nature of, the copier's use of an original work.
The "central" question it asks is "whether the new work merely
'supersede[s] the objects' of the original creation . . .
('supplanting' the original), or instead adds something new, with a
further purpose or different character." Campbell , 510 U.
S., at 579 (quoting Folsom v. Marsh , 9 F. Cas. 342 , 348 (No. 4,901) (CC Mass. 1841) (Story, J.), and Harper & Row , 471 U. S., at 562). In that way, the first
factor relates to the problem of substitution-copyright's bête
noire. The use of an original work to achieve a purpose that is the
same as, or highly similar to, that of the original work is more
likely to substitute for, or " 'supplan[t],' " the work, ibid .

															Consider the "purposes" listed in the preamble paragraph of
§107: "criticism, comment, news reporting, teaching . . . ,
scholarship, or research." Although the examples given are "
'illustrative and not limitative,' " they reflect "the sorts of
copying that courts and Congress most commonly ha[ve] found to be
fair uses," and so may guide the first factor inquiry. Campbell , 510 U. S., at 577-578 (quoting §101). As the Court
of Appeals observed, the "examples are easily understood," as they
contemplate the use of an original work to "serv[e] a manifestly
different purpose from the [work] itself." 11 F. 4th, at 37.
Criticism of a work, for instance, ordinarily does not supersede
the objects of, or supplant, the work. Rather, it uses the work to
serve a distinct end.[ 4 ]

															Not every instance will be clear cut, however. Whether a use
shares the purpose or character of an original work, or instead has
a further purpose or different character, is a matter of degree.
Most copying has some further purpose, in the sense that copying is
socially useful ex post . Many secondary works add something
new. That alone does not render such uses fair. Rather, the first
factor (which is just one factor in a larger analysis) asks
"whether and to what extent " the use at issue has a purpose
or character different from the original. Campbell , 510 U.
S., at 579 (emphasis added). The larger the difference, the more
likely the first factor weighs in favor of fair use. The smaller
the difference, the less likely.

															A use that has a further purpose or different character is said
to be " 'transformative.' " Ibid. (quoting P. Leval, Toward
a Fair Use Standard, 103 Harv. L. Rev. 1105, 1111 (1990)
(hereinafter Leval)). As before, "transformativeness" is a matter
of degree. See Campbell , 510 U. S., at 579. That is
important because the word "transform," though not included in
§107, appears elsewhere in the Copyright Act. The statute defines
derivative works, which the copyright owner has "the exclusive
righ[t]" to prepare, §106(2), to include "any other form in which a
work may be recast, transformed, or adapted," §101. In other words,
the owner has a right to derivative transformations of her work.
Such transformations may be substantial, like the adaptation of a
book into a movie. To be sure, this right is "[s]ubject to" fair
use. §106; see also §107. The two are not mutually exclusive. But
an overbroad concept of transformative use, one that includes any
further purpose, or any different character, would narrow the
copyright owner's exclusive right to create derivative works. To
preserve that right, the degree of transformation required to make
"transformative" use of an original must go beyond that required to
qualify as a derivative.[ 5 ]

															For example, this Court in Campbell considered whether
parody may be fair use. In holding that it may, the Court explained
that "parody has an obvious claim to transformative value" because
"it can provide social benefit, by shedding light on an earlier
work, and, in the process, creating a new one." 510 U. S., at 579.
The use at issue in Campbell was 2 Live Crew's copying of
certain lyrics and musical elements from Roy Orbison's song, "Oh,
Pretty Woman," to create a rap derivative titled "Pretty Woman."
Without a doubt, 2 Live Crew transformed Orbison's song by adding
new lyrics and musical elements, such that "Pretty Woman" had a new
message and different aesthetic than "Oh, Pretty Woman." Indeed,
the whole genre of music changed from rock ballad to rap. That was
not enough for the first factor to weigh in favor of fair use,
however. The Court found it necessary to determine whether 2 Live
Crew's transformation of Orbison's song rose to the level of
parody, a distinct purpose of commenting on the original or
criticizing it. See id. , at 580-583.

															Distinguishing between parody (which targets an author or work
for humor or ridicule) and satire (which ridicules society but does
not necessarily target an author or work), the Court further
explained that "[p]arody needs to mimic an original to make its
point, and so has some claim to use the creation of its victim's
(or collective victims') imagination, whereas satire can stand on
its own two feet and so requires justification for the very act of
borrowing." Id. , at 580-581. More generally, when
"commentary has no critical bearing on the substance or style of
the original composition, . . . the claim to fairness in borrowing
from another's work diminishes accordingly (if it does not vanish),
and other factors, like the extent of its commerciality, loom
larger." Id. , at 580; see also id. , at 597 (Kennedy,
J., concurring).

															This discussion illustrates two important points: First, the
fact that a use is commercial as opposed to nonprofit is an
additional "element of the first factor." Id. , at 584. The
commercial nature of the use is not dispositive. Ibid. ; Google , 593 U. S., at ___ (slip op., at 27). But it is
relevant. As the Court explained in Campbell , it is to be
weighed against the degree to which the use has a further purpose
or different character. See 510 U. S., at 579 ("[T]he more
transformative the new work, the less will be the significance of
other factors, like commercialism, that may weigh against a finding
of fair use"); see also id. , at 580, 585.[ 6 ]

															Second, the first factor also relates to the justification for
the use. In a broad sense, a use that has a distinct purpose is
justified because it furthers the goal of copyright, namely, to
promote the progress of science and the arts, without diminishing
the incentive to create. See id. , at 579; Authors
Guild v. Google, Inc. , 804 F.3d 202, 214 (CA2 2015)
(Leval, J.) ("The more the appropriator is using the copied
material for new, transformative purposes, the more it serves
copyright's goal of enriching public knowledge and the less likely
it is that the appropriation will serve as a substitute for the
original or its plausible derivatives, shrinking the protected
market opportunities of the copyrighted work"). A use that shares
the purpose of a copyrighted work, by contrast, is more likely to
provide "the public with a substantial substitute for matter
protected by the [copyright owner's] interests in the original
wor[k] or derivatives of [it]," id. , at 207, which
undermines the goal of copyright.

															In a narrower sense, a use may be justified because copy- ing is
reasonably necessary to achieve the user's new purpose. Parody, for
example, "needs to mimic an original to make its point." Campbell , 510 U. S., at 580-581. Similarly, other commentary
or criticism that targets an original work may have compelling
reason to " 'conjure up' " the original by borrowing from it. Id. , at 588.[ 7 ] An independent
justification like this is particularly relevant to assessing fair
use where an original work and copying use share the same or highly
similar purposes, or where wide dissemination of a secondary work
would otherwise run the risk of substitution for the original or
licensed derivatives of it. See id. , at 580, n. 14; Harper & Row , 471 U. S., at 557. Once again, the
question of justification is one of degree. See Leval 1111 ("[I]t
is not sufficient simply to conclude whether or not justification
exists. The question remains how powerful, or persuasive, is the
justification, because the court must weigh the strength of the
secondary user's justification against factors favoring the
copyright owner").

															In sum, the first fair use factor considers whether the use of a
copyrighted work has a further purpose or different character,
which is a matter of degree, and the degree of

															difference must be balanced against the commercial nature of the
use. If an original work and a secondary use share the same or
highly similar purposes, and the secondary use is of a commercial
nature, the first factor is likely to weigh against fair use,
absent some other justification for copying.[ 8 ]

															2

															The fair use provision, and the first factor in particular,
requires an analysis of the specific "use" of a copyrighted work
that is alleged to be "an infringement." §107. The same copying may
be fair when used for one purpose but not another. See Campbell , 510 U. S., at 585 (contrasting the use of a
copyrighted work "to advertise a product, even in a parody," with
"the sale of a parody for its own sake, let alone one performed a
single time by students in school"); Sony Corp. of America v. Universal City Studios, Inc. , 464
U.S. 417 , 449-451 (1984) (contrasting the recording of TV

															"for a commercial or profit-making purpose" with "private home
use").

															Here, Goldsmith's copyrighted photograph has been used in
multiple ways: After Goldsmith licensed the photograph to Vanity
Fair to serve as an artist reference, Warhol used the photograph to
create the Vanity Fair illustration and the other Prince Series
works. Vanity Fair then used the photograph, pursuant to the
license, when it published Warhol's illustration in 1984. Finally,
AWF used the photograph when it licensed an image of Warhol's
Orange Prince to Condé Nast in 2016. Only that last use, however,
AWF's commercial licensing of Orange Prince to Condé Nast, is
alleged to be infringing.[ 9 ] We limit our
analysis accordingly. In particular, the Court expresses no opinion
as to the creation, display, or sale of any of the original Prince
Series works.[ 10 ]

															A typical use of a celebrity photograph is to accompany stories
about the celebrity, often in magazines. For example, Goldsmith
licensed her photographs of Prince to illustrate stories about
Prince in magazines such as Newsweek, Vanity Fair, and People. Supra , at 3-6. She even licensed her photographs for that
purpose after Prince died in 2016. Supra , at 7. A
photographer may also license her creative work to serve as a
reference for an artist, like Goldsmith did in 1984 when Vanity
Fair wanted an image of Prince created by Warhol to illustrate an
article about Prince. As noted by the Court of Appeals, Goldsmith
introduced "uncontroverted" evidence "that photographers generally
license others to create stylized derivatives of their work in the
vein of the Prince Series." 11 F. 4th, at 50; see 2 App. 291-299.
In fact, Warhol himself paid to license photographs for some of his
artistic renditions. Such licenses, for photographs or derivatives
of them, are how photographers like Goldsmith make a living. They
provide an economic incentive to create original works, which is
the goal of copy- right.

															In 2016, AWF licensed an image of Orange Prince to Condé Nast to
appear on the cover of a commemorative edition magazine about
Prince. The edition, titled "The Genius of Prince," celebrates the
life and work of "Prince Rogers Nelson, 1958-2016." It is
undisputed here that the edition is "devoted to Prince." 2 App.
352. In addition to AWF's image on the cover, the magazine contains
numerous concert and studio photographs of Prince. In that context,
the purpose of the image is substantially the same as that of
Goldsmith's photograph. Both are portraits of Prince used in
magazines to illustrate stories about Prince.[ 11 ] Such "environment[s]" are not "distinct and
different." Google , 593

															U. S., at ___ (slip op., at 26). AWF's licensing of the Orange
Prince image thus " 'supersede[d] the objects,' " Campbell ,
510 U. S., at 579, i.e. , shared the objectives, of
Goldsmith's photograph, even if the two were not perfect
substitutes.[ 12 ]

															The use also "is of a commercial nature." §107(1). Just as
Goldsmith licensed her photograph to Vanity Fair for $400, AWF
licensed Orange Prince to Condé Nast for $10,000. The undisputed
commercial character of AWF's use, though not dispositive, "tends
to weigh against a finding of fair use." Harper & Row ,
471 U. S., at 562.[ 13 ]

															Taken together, these two elements-that Goldsmith's photograph
and AWF's 2016 licensing of Orange Prince share substantially the
same purpose, and that AWF's use of Goldsmith's photo was of a
commercial nature-counsel against fair use, absent some other
justification for copying. That is, although a use's
transformativeness may outweigh its commercial character, here,
both elements point in the same direction.[ 14 ]

															The foregoing does not mean, however, that derivative works
borrowing heavily from an original cannot be fair uses. In Google , the Court suggested that "[a]n 'artistic painting'
might, for example, fall within the scope of fair use even though
it precisely replicates a copyrighted 'advertising logo to make a
comment about consumerism.' " 593 U. S., at ___-___ (slip op., at
24-25) (quoting 4 M. Nimmer & D. Nimmer, Copyright
§13.05[A][1][b] (2019), in turn quoting N. Netanel, Making Sense of
Fair Use, 15 Lewis & Clark L. Rev. 715, 746 (2011) (some
internal quotation marks omitted)). That suggestion refers to
Warhol's works that incorporate advertising logos, such as the
Campbell's Soup Cans series. See fig. 7, infra . Figure 7. A print based on the Campbell's soup can, one of
Warhol's works that replicates a copyrighted advertising
logo. Yet not all of Warhol's works, nor all uses of them, give rise
to the same fair use analysis. In fact, Soup Cans well illustrates
the distinction drawn here. The purpose of Campbell's logo is to
advertise soup. Warhol's canvases do not share that purpose.
Rather, the Soup Cans series uses Campbell's copyrighted work for
an artistic commentary on consumerism, a purpose that is orthogonal
to advertising soup. The use therefore does not supersede the
objects of the advertising logo.[ 15 ]

															Moreover, a further justification for Warhol's use of Campbell's
logo is apparent. His Soup Cans series targets the logo. That is,
the original copyrighted work is, at least in part, the object of
Warhol's commentary. It is the very nature of Campbell's
copyrighted logo-well known to the public, designed to be
reproduced, and a symbol of an every- day item for mass
consumption-that enables the commentary. Hence, the use of the
copyrighted work not only serves a completely different purpose, to
comment on consumerism rather than to advertise soup, it also
"conjures up" the original work to "she[d] light" on the work
itself, not just the subject of the work. Campbell , 510 U.
S., at 579, 588.[ 16 ] Here, by contrast, AWF's
use of Goldsmith's photograph does not target the photograph, nor
has AWF offered another compelling justification for the use. See infra , at 34-35, and nn. 20-21.

															B

															AWF contends, however, that the purpose and character of its use
of Goldsmith's photograph weighs in favor of fair use because
Warhol's silkscreen image of the photograph, like the Campbell's
Soup Cans series, has a new meaning or message. The District Court,
for example, understood the Prince Series works to portray Prince
as "an iconic, larger-than-life figure." 382 F. Supp. 3d, at 326.
AWF also asserts that the works are a comment on celebrity. In
particular, "Warhol's Prince Series conveys the dehumanizing nature
of celebrity." Brief for Petitioner 44. According to AWF, that new
meaning or message, which the Court of Appeals ignored, makes the
use "transformative" in the fair use sense. See id. , at
44-48. We disagree.

															1 Campbell did describe a transformative use as one that
"alter[s] the first [work] with new expression, meaning, or
message." 510 U. S., at 579; see also Google , 593 U. S., at
___ (slip op., at 24). That description paraphrased Judge Leval's
law review article, which referred to "new information, new
aesthetics, new insights and understandings." Leval 1111. (Judge
Leval contrasted such additions with secondary uses that "merely
repackag[e]" the original. Ibid .) But Campbell cannot
be read to mean that §107(1) weighs in favor of any use that adds
some new expression, meaning, or message.

															Otherwise, "transformative use" would swallow the copyright
owner's exclusive right to prepare derivative works. Many
derivative works, including musical arrangements, film and stage
adaptions, sequels, spinoffs, and others that "recast, transfor[m]
or adap[t]" the original, §101, add new expression, meaning or
message, or provide new information, new aesthetics, new insights
and understandings. That is an intractable problem for AWF's
interpretation of transformative use. The first fair use factor
would not weigh in favor of a commercial remix of Prince's "Purple
Rain" just because the remix added new expression or had a
different aesthetic. A film or musical adaptation, like that of
Alice Walker's The Color Purple, might win awards for its
"significant creative contribution"; alter the meaning of a classic
novel; and add "important new expression," such as images,
performances, original music, and lyrics. Post , at 11, 23
(Kagan, J., dissenting) (internal quotation marks omitted). But
that does not in itself dispense with the need for
licensing.[ 17 ] Campbell is again instructive. 2 Live Crew's version of
Orbison's song easily conveyed a new meaning or message. It also
had a different aesthetic. Yet the Court went further, examining
whether and to what extent 2 Live Crew's song had the parodic
purpose of "commenting on the original or criticizing it." 510 U.
S., at 583. Parody is, of course, a kind of message. Moreover, the
Court considered what the words of the songs might have meant to
determine whether parody "reasonably could be perceived." Ibid. But new meaning or message was not sufficient. If it
had been, the Court could have made quick work of the first fair
use factor. Instead, meaning or message was simply relevant to
whether the new use served a purpose distinct from the original, or
instead superseded its objects. That was, and is, the "central"
question under the first factor. Id. , at 579.

															The dissent commits the same interpretive error as AWF: It
focuses on Campbell 's paraphrase, yet ignores the rest of
that decision's careful reasoning. Indeed, upon reading the
dissent, someone might be surprised to learn that Campbell was about parody at all. Had expert testimony confirmed the obvious
fact that 2 Live Crew's "Pretty Woman" differed in aesthetics and
meaning from Orbison's original, that would have been the end of
the dissent's analysis. See post , at 14-17 (opinion of
Kagan, J.). Not the Court's, however. Campbell was the
culmination of a long line of cases and scholarship about parody's
claim to fairness in borrowing. "For purposes of copyright law,"
the Court explained, "the heart of any parodist's claim to quote
from existing material is the use of some elements of a prior
author's composition to create a new one that, at least in part,
comments on that author's works." 510 U. S., at 580. Campbell thus drew a nuanced distinction between parody and
satire: While parody cannot function unless it conjures up the
original, "satire can stand on its own two feet and so requires
justification for . . . borrowing." Id. , at 580-581. The
objective meaning or message of 2 Live Crew's song was relevant to
this inquiry into the reasons for copying, but any "new expression,
meaning, or message" was not the test.[ 18 ]

															What role meaning or message played in the Court of Appeals'
analysis here is not entirely clear. The court correctly rejected
the idea "that any secondary work that adds a new aesthetic or new
expression to its source material is necessarily transformative."
11 F. 4th, at 38-39. It also appeared correctly to accept that
meaning or message is relevant to, but not dispositive of, purpose.
See id. , at 41 ("[T]he secondary work itself must reasonably
be perceived as embodying a distinct artistic purpose, one that
conveys a new meaning or message separate from its source
material"); id. , at 42 ("[T]he judge must examine whether
the secondary work's use of its source material is in service of a
fundamentally different and new artistic purpose and character,
[which] must, at a bare minimum, comprise something more than the
imposition of another artist's style on the primary work . . . "
(internal quotation marks omitted)).

															Elsewhere, however, the Court of Appeals stated that "the
district judge should not assume the role of art critic and seek to
ascertain the intent behind or meaning of the works at issue." Id. , at 41. That statement is correct in part. A court
should not attempt to evaluate the artistic significance of a
particular work. See Bleistein v. Donaldson Lithographing
Co. , 188 U.S.
239 , 251 (1903) (Holmes, J.) ("It would be a dangerous
undertaking for persons trained only to the law to constitute
themselves final judges of the worth of [a work], outside of the
narrowest and most obvious limits").[ 19 ] Nor
does the subjective intent of the user (or the subjective
interpretation of a court) determine the purpose of the use. But
the meaning of a secondary work, as reasonably can be perceived,
should be considered to the extent necessary to determine whether
the purpose of the use is distinct from the original, for instance,
because the use comments on, criticizes, or provides otherwise
unavailable information about the original, see, e.g. , Authors Guild , 804 F. 3d, at 215-216.

															2

															The District Court determined that "[t]he Prince Series works
can reasonably be perceived to have transformed Prince from a
vulnerable, uncomfortable person to an iconic, larger-than-life
figure." 382 F. Supp. 3d, at 326. To make that determination, the
District Court relied, in part, on testimony by Goldsmith that her
photographs of Prince show that he "is 'not a comfortable person'
and that he is 'a vulnerable human being.' " Ibid. An expert
on Warhol, meanwhile, testified that the Prince Series works depict
"Prince as a kind of icon or totem of something," a "mask-like
simulacrum of his actual existence." 1 App. 249, 257.

															The Court of Appeals noted, correctly, that "whether a work is
transformative cannot turn merely on the stated or perceived intent
of the artist or the meaning or impression that a critic-or for
that matter, a judge-draws from the work." 11 F. 4th, at 41.
"[O]therwise, the law may well 'recogniz[e] any alteration as
transformative.' " Ibid. (quoting 4 Nimmer, Copyright
§13.05[B][6]). Whether the purpose and character of a use weighs in
favor of fair use is, instead, an objective inquiry into what use
was made, i.e. , what the user does with the original
work.

															Granting the District Court's conclusion that Orange Prince
reasonably can be perceived to portray Prince as iconic, whereas
Goldsmith's portrayal is photorealistic, that difference must be
evaluated in the context of the specific use at issue. The use is
AWF's commercial licensing of Orange Prince to appear on the cover
of Condé Nast's special commemorative edition. The purpose of that
use is, still, to illustrate a magazine about Prince with a
portrait of Prince. Although the purpose could be more specifically
described as illustrating a magazine about Prince with a portrait
of Prince, one that portrays Prince somewhat differently from
Goldsmith's photograph (yet has no critical bearing on her
photograph), that degree of difference is not enough for the first
factor to favor AWF, given the specific context of the use.

															To hold otherwise would potentially authorize a range of
commercial copying of photographs, to be used for purposes that are
substantially the same as those of the originals. As long as the
user somehow portrays the subject of the photograph differently, he
could make modest alterations to the original, sell it to an outlet
to accompany a story about the subject, and claim transformative
use. Many photographs will be open to various interpretations. A
subject as open to interpretation as the human face, for example,
reasonably can be perceived as conveying several possible meanings.
The application of an artist's characteristic style to bring out a
particular meaning that was available in the photograph is less
likely to constitute a "further purpose" as Campbell used
the term. 510 U. S., at 579.

															AWF asserts another, albeit related, purpose, which is to
comment on the "dehumanizing nature" and "effects" of celebrity.
Brief for Petitioner 44, 51. No doubt, many of Warhol's works, and
particularly his uses of repeated images, can be perceived as
depicting celebrities as commodities. But again, even if such
commentary is perceptible on the cover of Condé Nast's tribute to
"Prince Rogers Nelson, 1958-2016," on the occasion of the man's
death, AWF has a problem: The asserted commentary is at Campbell 's lowest ebb. Because it "has no critical bearing
on" Goldsmith's photograph,[ 20 ] the commentary's
"claim to fairness in borrowing from" her work "diminishes
accordingly (if it does not vanish)." 510 U. S., at 580.[ 21 ] The commercial nature of the use, on the other hand,
"loom[s] larger." Ibid. Here, the circumstances of AWF's 2016 licensing outweigh its
diminished claim to fairness in copying under the first factor.
Like satire that does not target an original work, AWF's asserted
commentary "can stand on its own two feet and so requires
justification for the very act of borrowing." Id. , at 581.
Moreover, because AWF's commercial use of Goldsmith's photograph to
illustrate a magazine about Prince is so similar to the
photograph's typical use, a particularly compelling justification
is needed. Yet AWF offers no independent justification, let alone a
compelling one, for copying the photograph, other than to convey a
new meaning or message. As explained, that alone is not enough for
the first factor to favor fair use.

															Copying might have been helpful to convey a new meaning or
message. It often is. But that does not suffice under the first
factor. Nor does it distinguish AWF from a long list of would-be
fair users: a musician who finds it helpful to sample another
artist's song to make his own, a playwright who finds it helpful to
adapt a novel, or a filmmaker who would prefer to create a sequel
or spinoff, to name just a few.[ 22 ] As Judge
Leval has explained, "[a] secondary author is not necessarily at
liberty to make wholesale takings of the original author's
expression merely because of how well the original author's
expression would convey the secondary author's different message." Authors Guild , 804 F. 3d, at 215.

															3

															The dissent would rather not debate these finer points. See post , at 4, n. 2 (opinion of Kagan, J.). It offers no theory
of the relationship between transformative uses of original works
and derivative works that transform originals. No reason why AWF
was justified in using Goldsmith's original work in this specific
instance. And no limiting principle for its apparent position that
any use that is creative prevails under the first fair use factor.
Instead, the dissent makes the simple (and obvious) point that
restrictions on copying can inhibit follow-on works. " 'Nothing
comes from nothing,' " the dissent observes, " 'nothing ever
could.' " Post , at 11. So somewhere in the copyright
statute, there must be an "escape valve" to create something good. Post , at 12. If AWF must pay Goldsmith to use her creation, the dissent claims, this will "stifle creativity of every
sort," "thwart the expression of new ideas and the attainment of
new knowledge," and "make our world poorer." Post , at
36.

															These claims will not age well. It will not impoverish our world
to require AWF to pay Goldsmith a fraction of the proceeds from its
reuse of her copyrighted work. Recall, payments like these are
incentives for artists to create original works in the first place.
Nor will the Court's decision, which is consistent with
longstanding principles of fair use, snuff out the light of Western
civilization, returning us to the Dark Ages of a world without
Titian, Shakespeare, or Richard Rodgers. The dissent goes on at
length about the basic premise that copyright (like other forms of
intellectual property) involves a tradeoff between stimulating
innovative activity, on the one hand, and allowing follow-on
innovation, on the other. See post , at 11-12, and n. 4,
24-35. This theme will be familiar to any student of copyright law.
In tracing the history of Renaissance painting, however, the
dissent loses sight of the statute and this Court's cases. The
Lives of the Artists undoubtedly makes for livelier reading than
the U. S. Code or the U. S. Reports, but as a court, we do not have
that luxury.

															The dissent thus misses the forest for a tree. Its single-minded
focus on the value of copying ignores the value of original works.
It ignores the statute's focus on the specific use alleged to be
infringing. See n. 10, supra . It waves away the statute's
concern for derivative works. Supra , at 28-29, and n. 17. It
fails to appreciate Campbell 's nuance. Supra , at
29-30, 34, n. 21. And it disregards this Court's repeated emphasis
on justification. Supra , at 29-30, and n. 18, 34, n. 21.

															The result of these omissions is an account of fair use that is
unbalanced in theory and, perhaps relatedly, in tone. The dissent's
conclusion-that whenever a use adds new meaning or message, or
constitutes creative progress in the opinion of a critic or judge,
the first fair use factor weighs in its favor-does not follow from
its basic premise. Fair use instead strikes a balance between
original works and secondary uses based in part on objective
indicia of the use's purpose and character, including whether the
use is commercial and, importantly, the reasons for copying.

															Finally, copyright law is replete with escape valves: the
idea-expression distinction; the general rule that facts may not
receive protection; the requirement of originality; the legal
standard for actionable copying; the limited duration of copyright;
and, yes, the defense of fair use, including all its factors, such
as whether the amount taken is reasonable in relation to the
purpose of the use. These doctrines (and others) provide ample
space for artists and other creators to use existing materials to
make valuable new works. They account for most, if not all, of the
examples given by the dissent, as well as the dissent's own copying
(and the Court's, too). If the last century of American art,
literature, music, and film is any indication, the existing
copyright law, of which today's opinion is a continuation, is a
powerful engine of creativity.

															III

															Lynn Goldsmith's original works, like those of other
photographers, are entitled to copyright protection, even against
famous artists. Such protection includes the right to prepare
derivative works that transform the original. The use of a
copyrighted work may nevertheless be fair if, among other things,
the use has a purpose and character that is sufficiently distinct
from the original. In this case, however, Goldsmith's original
photograph of Prince, and AWF's copying use of that photograph in
an image licensed to a special edition magazine devoted to Prince,
share substantially the same purpose, and the use is of a
commercial nature. AWF has offered no other persuasive
justification for its unauthorized use of the photograph.
Therefore, the "purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit educational
purposes," §107(1), weighs in Goldsmith's favor.

															The Court has cautioned that the four statutory fair use factors
may not "be treated in isolation, one from another. All are to be
explored, and the results weighed together, in light of the
purposes of copyright." Campbell , 510 U. S., at 578. AWF
does not challenge the Court of Appeals' determinations that the
second factor, "the nature of the copyrighted work," §107(2); third
factor, "the amount and substantiality of the portion used in
relation to the copyrighted work as a whole," §107(3); and fourth
factor, "the effect of the use upon the potential market for or
value of the copyrighted work," all favor Goldsmith. See 11 F. 4th,
at 45-51. Because this Court agrees with the Court of Appeals that
the first factor likewise favors her, the judgment of the Court of
Appeals is

															Affirmed.

															APPENDIX Andy Warhol created 16 works based on Lynn Goldsmith's
photograph:14 silkscreen prints and two pencil drawings. The works
are collectively known as the Prince Series. Notes 1 A silkscreen is a fine mesh fabric used in
screen printing. Warhol's practice was to deliver a photograph to a
professional silkscreen printer with instructions for alterations,
such as cropping and high contrasting. 1 App. 160, 163. The latter
alteration would "flatten" the image. Once Warhol approved, the
printer would "reproduc[e]" the altered image "like a photographic
negative onto the screen." Id. , at 164. For canvas prints,
Warhol "would then place the screen face down on the canvas, pour
ink onto the back of the mesh, and use a squeegee to pull the ink
through the weave and onto the canvas." Ibid. The resulting
"high-contrast half-tone impressions" served as an "
'under-drawing,' " over which Warhol painted colors by hand. Id. , at 165. 2 AWF sold 12 of the works to collectors and
galleries, and it transferred custody of the remaining four works
to the Andy Warhol Museum in Pittsburgh. 3 The Court of Appeals considered not only
the possibility of market harm caused by the actions of AWF but
also "whether 'unrestricted and widespread conduct of the sort
engaged in by [AWF] would result in a substantially adverse impact
on the potential market' " for the photograph, including the market
for derivative works. 11 F. 4th 26, 49-50 (CA2 2021) (quoting Campbell v. Acuff-Rose Music, Inc. , 510 U.S.
569 , 590 (1994)); see also Harper & Row, Publishers,
Inc. v. Nation Enterprises , 471 U.S.
539 , 568 (1985). 4 Take a critical book review, for example.
Not only does the review, as a whole, serve a different purpose
than the book; each quoted passage within the review likely serves
a different purpose (as an object of criticism) than it does in the
book. That may not always be so, however, and a court must consider
each use within the whole to determine whether the copying is fair.
W. Patry, Fair Use §3:1, pp. 129-130 (2022). 5 In theory, the question of transformative
use or transformative purpose can be separated from the question
whether there has been transformation of a work. In practice,
however, the two may overlap. Compare, e.g. , Núñez v. Caribbean Int'l News Corp. , 235 F.3d 18 , 21-23 (CA1 2000) (newspaper's reproduction,
without alteration, of photograph of beauty pageant winner to
explain controversy over whether her title should be withdrawn had
transformative purpose because " 'the pictures were the story' "),
with Leibovitz v. Paramount Pictures Corp. , 137 F.3d 109 , 114-115 (CA2 1998) (film advertisement's
alteration of well-known photograph by superimposing actor's face
on actress' body had transformative purpose of
parody). 6 The authors of the Copyright Act of 1976
included the language, " 'whether such use is of a commercial
nature or is for non-profit educational purposes,' " in the first
fair use factor "to state explicitly" that, "as under the present
law, the commercial or non-profit character of an activity, while
not conclusive with respect to fair use, can and should be weighed
along with other factors." H. R. Rep. No. 94-1476, p. 66
(1976). 7 Return to the example of a book review. The
review's use of quoted material may be justified in both the broad
and the narrower senses. First, the use is likely to serve a
different purpose than the material itself. See n. 4, supra .
Second, there may be compelling reason to borrow from the original
to achieve that purpose because the review targets the material for
comment or criticism. But again, the question of justification will
depend on the individual use or uses. See Patry, Fair Use §3:1, at
129-130. Even book reviews are not entitled to a presumption of
fairness. Campbell , 510 U. S., at 581. 8 Consider, for example, this Court's
analysis of the first factor in Google LLC v. Oracle
America, Inc. , 593 U. S. ___ (2021). Google stressed
that "[t]he fact that computer programs are primarily functional
makes it difficult to apply traditional copyright concepts in that
technological world." Id. , at ___ (slip op., at 35). Still,
in evaluating the purpose and character of Google's use of Sun
Microsystems' code, the Court looked, first, to whether the purpose
of the use was significantly different from that of the original;
and, second, to the strength of other justifications for the use.
Although Google's use was commercial in nature, it copied Sun's
code, which was "created for use in desktop and laptop computers,"
"only insofar as needed to include tasks that would be useful in
smartphone[s]." Id. , at ___ (slip op., at 26). That is,
Google put Sun's code to use in the "distinct and different
computing environment" of its own Android platform, a new system
created for new products. Ibid. Moreover, the use was
justified in that context because "shared interfaces are necessary
for different programs to speak to each other" and because
"reimplementation of interfaces is necessary if programmers are to
be able to use their acquired skills." Ibid. ; see also id. , at ___ (slip op., at 8). 9 AWF sought a declaratory judgment that
would cover the original Prince Series works, but Goldsmith has
abandoned all claims to relief other than her claim as to the 2016
Condé Nast license and her request for prospective relief as to
similar commercial licensing. Brief for Respondents 3, 17-18; Tr.
of Oral Arg. 80-82. 10 The dissent, however, focuses on a case
that is not before the Court. No, not whether Francis Bacon would
have made fair use of Velásquez's painting, had American copyright
law applied in Europe with a term of 300 years post mortem
auctoris . But cf. post , at 32-34 (opinion of Kagan, J.).
Rather, Congress has directed courts to examine the purpose and
character of the challenged "use."17 U. S. C. §107(1). Yet the
dissent assumes that any and all uses of an original work entail
the same first-factor analysis based solely on the content of a
secondary work. This assumption contradicts the fair use statute
and this Court's precedents. See supra , at 20-21. Had AWF's
use been solely for teaching purposes, that clearly would affect
the analysis, and the statute permits no other conclusion.
Preferring not to focus on the specific use alleged to infringe
Goldsmith's copyright, the dissent begins with a sleight of hand,
see post , at 1, n. 1, and continues with a false equivalence
between AWF's commercial licensing and Warhol's original creation.
The result is a series of misstatements and exaggerations, from the
dissent's very first sen- tence, post , at 1 ("Today, the
Court declares that Andy Warhol's eye-popping silkscreen of Prince
. . . is (in copyright lingo) not 'transformative' "), to its very
last, post , at 36 ("[The majority opinion] will make our
world poorer"). 11 The Court of Appeals observed that the
"purpose and function of the two works at issue here is identical,
not merely in the broad sense that they are created as works of
visual art, but also in the narrow but essential sense that they
are portraits of the same person." 11 F. 4th, at 42 (footnote
omitted). This Court goes somewhat "further and examine[s] the
copying's more specifically described 'purpose[s]' " in the context
of the particular use at issue (here, in a magazine about Prince). Google , 593 U. S., at ___ (slip op., at 25). The Court does
not define the purpose as simply "commercial" or "commercial
licensing." Post , at 18, 20, n. 7, 25, n. 8 (Kagan, J.,
dissenting). Nor does the Court view Goldsmith's photograph and
Warhol's illustration as "fungible products in the magazine
market." Post , at 18; see post , at 10. Rather, the
Court finds significant the degree of similarity between the
specific purposes of the original work and the secondary use at
issue. According to the dissent, the fact that a magazine editor
might prefer one image to the other must mean the secondary use is
transformative, either because it has a different aesthetic or
conveys a different message. Post , at 10. The Court, because
it fails to understand the difference, does not have "much of a
future in magazine publishing," the dissent chides. Ibid .
While the dissent is probably correct about the Court's business
prospects, the editors of People, Rolling Stone, and Time chose a
variety of different photos of Prince for their memorial issues.
See fig. 5, supra . Portrait photos, in fact. Some black and
white; some depicting Prince's " 'corporeality' "; some "realistic"
or "humanistic." Post , at 9, 16 (Kagan, J., dissenting).
These variations in aesthetics did not stop the photos from serving
the same essential purpose of depicting Prince in a magazine
commemorating his life and career. Fortunately, the dissent's
"magazine editor" test does not have much of a future in fair use
doctrine. The flaw in the dissent's logic is simple: If all that
mattered under the first factor were whether a buyer was "drawn
aesthetically" to a secondary work (instead of the pre-existing
work it adapted) or whether the buyer preferred "to convey the
message of " the secondary work, post , at 10, then every
derivative work would qualify. The New Yorker might prefer an
unauthorized sequel to a short story, rather than the original, but
that does not mean the purpose and character of the use would weigh
in its favor. Similarly, a rap label might prefer 2 Live Crew's
song, rather than Orbison's original, based on the new sound and
lyrics ( i.e. , new aesthetic and message), but that was not
enough in Campbell , and it is not enough here. 12 In this way, the first factor relates to
the fourth, market effect. See Campbell , 510 U. S., at 591;
cf. also Harper & Row , 471 U. S., at 568 ("The excerpts
were employed as featured episodes in a story about the Nixon
pardon-precisely the use petitioners had licensed to Time"). While
the first factor considers whether and to what extent an original
work and secondary use have substitutable purposes, the fourth
factor focuses on actual or potential market substitution. Under
both factors, the analysis here might be different if Orange Prince
appeared in an art magazine alongside an article about Warhol.
Brief for United States as Amicus Curiae 33. While keenly
grasping the relationship between The Two Lolitas, the dissent
fumbles the relationship between the first and fourth fair use
factors. Under today's decision, as before, the first factor does
not ask whether a secondary use causes a copyright owner economic
harm. Cf. post , at 21 (opinion of Kagan, J.). There is,
however, a positive association between the two factors: A
secondary use that is more different in purpose and character is
less likely to usurp demand for the original work or its
derivatives, as the Court has explained, see Campbell , 519
U. S., at 591. This relationship should be fairly obvious. But see post , at 22 (Kagan, J., dissenting) (suggesting that the
first factor can favor only the user and the fourth factor only the
copyright owner). Still, the relationship is not absolute. For
example, copies for classroom use might fulfill demand for an
original work. The first factor may still favor the copyist, even
if the fourth factor is shown not to. At the same time, other forms
of straight copying may be fair if a strong showing on the fourth
factor outweighs a weak showing on the first. 13 The dissent misconstrues the role of
commercialism in this analysis. The Court does not hold that "[a]ll
that matters is that [AWF] and the publisher entered into a
licensing transaction"; or that the first-factor inquiry "should
disregard Warhol's creative contributions because he licensed his
work"; or that an artist may not "market even a transformative
follow-on work." Post , at 3, 19, 34 (opinion of Kagan, J.).
Instead, consistent with the statute, "whether [a] use is of a
commercial nature or is for nonprofit educational purposes" is one
element of the first factor, §107(1); it does not dispose of that
factor, much less the fair use inquiry. As this opinion makes
clear, the commercial character of a secondary use should be
weighed against the extent to which the use is transformative or
otherwise justified. Supra , at 18 (citing Campbell ,
510 U. S., at 579-580, 585); see also supra , at 12, 19-20,
and n. 8, 25; infra , at 34-35. 14 The dissent contends that the Court gives
"little role" to "the key term 'character.' " Post , at 19
(opinion of Kagan, J.). This is somewhat puzzling, as the Court has
previously employed "character" to encompass exactly what the
dissent downplays: " 'the commercial or nonprofit character of an
activity.' " Sony Corp. of America v. Universal City
Studios, Inc. , 464 U.S.
417 , 448-449 (1984) (quoting H. R. Rep. No. 94-1476, at 66);
see also Campbell , 510 U. S., at 572, 584-585 (repeatedly
referring to "commercial character"). Rather than looking to this
case law, the dissent looks up the word "character" in a
dictionary. See post , at 13. But the dissent's preferred
definition-"a thing's 'main or essential nature[,] esp[ecially] as
strongly marked and serving to distinguish,' " post , at 20
(quoting Webster's Third New International Dictionary 376
(1976))-helps Goldsmith, not AWF. Even this definition does not
support the implication that "character" is determined by any
aesthetic distinctiveness, such as the addition of any new
expression. Instead, it is the "main or essential nature" that must
be "strongly marked and serv[e] to distinguish." So return to
Orange Prince on the cover of the Condé Nast issue commemorating
Prince, see fig. 5, supra , and ask, what is the main or essential nature of the secondary use of
Goldsmith's photograph in that context? 15 The situation might be different if AWF
licensed Warhol's Soup Cans to a soup business to serve as its
logo. That use would share much the same purpose of Campbell's
logo, even though Soup Cans has some new meaning or message. This
hypothetical, though fanciful, is parallel to the situation here:
Both Goldsmith and AWF sold images of Prince (AWF's copying
Goldsmith's) to magazines to illustrate stories about the
celebrity, which is the typical use made of Goldsmith's
photographs. 16 The dissent either does not follow, or
chooses to ignore, this analysis. The point is not simply that the
Soup Cans series comments on consumer culture, similar to how
Warhol's celebrity images comment on celebrity culture. Post , at 15 (opinion of Kagan, J.). Rather, as the
discussion makes clear, the degree of difference in purpose and
character between Campbell's soup label and Warhol's painting is
nearly absolute. Plus, Warhol's use targets Campbell's logo, at
least in part. These features (which are absent in this case)
strengthen Warhol's claim to fairness in copying that logo in a
painting. 17 The dissent is stumped. Buried in a
conclusory footnote, it suggests that the fourth fair use factor
alone takes care of derivative works like book-to-film adaptations. Post , at 12, n. 5. This idea appears to come from a Hail
Mary lobbed by AWF when it got caught in the same bind. See Tr. of
Oral Arg. 15-16. The Court is aware of no authority for the
proposition that the first factor favors such uses (on the
dissent's view, the first factor must, because the use modifies the
expressive content of an original work), leaving it to the fourth
factor to ensure that §106(2) is not a dead letter. Certainly Google , which merely noted in passing that "[m]aking a film
of an author's book may . . . mean potential or presumed losses to
the copyright owner," did not hold as much. 593 U. S., at ___ (slip
op., at 30); see id. , at ___-___, ___-___ (slip op., at
24-28, 30-35). 18 The dissent makes a similar mistake with Google : It fails to read the decision as a whole. So while
the dissent claims that the "[ Google ] Court would have told
this one to go back to school," it might be easier just to go back
and read Google . Post , at 2 (opinion of Kagan, J.).
The Court did not hold that any secondary use that is innovative,
in some sense, or that a judge or Justice considers to be creative
progress consistent with the constitutional objective of copyright,
is thereby transformative. The Court instead emphasized that Google
used Sun's code in a "distinct and different" context, and "only
insofar as needed" or "necessary" to achieve Google's new purpose. Google , 593 U. S., at ___ (slip op., at 26); see also n. 8, supra . In other words, the same concepts of use and
justification that the Court relied on in Google are the
ones that it applies today. 19 The dissent demonstrates the danger of this
approach. On its view, the first fair use factor favors AWF's use
of Goldsmith's photograph simply because Warhol created worthy art.
Goldsmith's original work, by contrast, is just an "old photo," one
of Warhol's "templates." Post , at 2, 17 (opinion of Kagan,
J.). In other words, the dissent (much like the District Court)
treats the first factor as determined by a single fact: "It's a
Warhol." This Court agrees with the Court of Appeals that such
logic would create a kind of privilege that has no basis in
copyright law. See 11 F. 4th, at 43. Again, the Court does not deny
that Warhol was a major figure in American art. But it leaves the
worth of his works to the critics. Compare, e.g. , D. Antin,
Warhol: The Silver Tenement, in Pop Art: A Critical History 287 (S.
Madoff ed. 1997), with R. Hughes, The Shock of the New 346-351 (2d
ed. 1991). Whatever the contribution of Orange Prince, Goldsmith's
photograph is part of that contribution. A court need not, indeed
should not, assess the relative worth of two works to decide a
claim of fair use. Otherwise, "some works of genius would be sure
to miss appreciation," and, "[a]t the other end, copyright would be
denied to [works] which appealed to a public less educated than the
judge." Bleistein , 188 U. S., at 251-252 (Holmes, J.). That
Goldsmith's photograph "had [its] worth and [its] success is
sufficiently shown by the desire to reproduce [it] without regard
to [her] rights." Id. , at 252. 20 At no point in this litigation has AWF
maintained that any of the Prince Series works, let alone Orange
Prince on the cover of the 2016 Condé Nast special edition, comment
on, criticize, or otherwise target Goldsmith's photograph. That
makes sense, given that the photograph was unpublished when
Goldsmith licensed it to Vanity Fair, and that neither Warhol nor
Vanity Fair selected the photograph, which was instead provided by
Goldsmith's agency. 21 The dissent wonders: Why does targeting
matter? See post , at 24 (opinion of Kagan, J.) . The
reason, as this opinion explains, is the first factor's attention
to justification. Supra , at 17-20, and nn. 7-8, 29-30, and
n. 18 (citing Campbell , 510 U. S., at 580-581; Google , 593 U. S., at ___ (slip op., at 26)). Compare, for
example, a film adaptation of Gone With the Wind with a novel, The
Wind Done Gone, that "inverts" the original's "portrait of race
relations" to expose its "romantic, idealized" portrayal of the
antebellum South. SunTrust Bank v. Houghton Mifflin
Co. , 268 F.3d 1257 , 1270 (CA11 2001); id. , at 1280 (Marcus,
J., specially concurring). Or, to build from one of the artistic
works the dissent chooses to feature, consider a secondary use that
borrows from Manet's Olympia to shed light on the original's
depiction of race and sex. See R. Storr & C. Armstrong, Lunch
With Olympia (2016). Although targeting is not always required,
fair use is an affirmative defense, and AWF bears the burden to
justify its taking of Goldsmith's work with some reason other than,
"I can make it better." 22 The dissent oddly suggests that under the
Court's opinion, the first fair use factor favors such uses. See post , at 12, n. 5. This ignores, well, pretty much the
entire opinion. See supra , at 14-17, 22-24, 26-27, 28-29,
32-33 (degree of difference in purpose and character); supra , at 18, 24 (commercial nature); supra , at
17-19, 27, 30, 34-35 (justification). In particular, the Court does
not hold that the first factor favors any user who "wants to reach
different buyers, in different markets, consuming different
products." Post , at 13, n. 5 (opinion of Kagan, J.). The
dissent apparently deduces this proposition from its inverse, which
is a common logical fallacy. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 21–869

															_________________

															ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS,
INC., PETITIONER v. LYNN GOLDSMITH, et al.

															on writ of certiorari to the united states
court of appeals for the second circuit

															[May 18, 2023]

															Justice Gorsuch, with whom Justice Jackson
joins, concurring.

															The question before us is a narrow one of
statutory interpretation. It concerns the meaning of one of four
factors Congress has instructed courts to consult when a party
invokes the affirmative defense of “fair use” to a claim of
copyright infringement. The statutory factor in question requires
courts to consider “the purpose and character of the use.” 17
U. S. C. §107(1). The parties disagree which “purpose”
and “character” counts.

															On the Foundation’s telling, the statute
requires courts to focus on the purpose the creator had in
mind when producing his work and the character of his resulting
work. So what matters in this case is that Andy Warhol intended to
apply a “ ‘new aesthetic’ ” to Lynn Goldsmith’s
photograph and the character of his work
“ ‘transformed’ ” Prince from the “ ‘vulnerable,
uncomfortable person’ ” depicted in Ms. Goldsmith’s photograph
into “ ‘an iconic, larger-than-life figure.’ ” Ante , at 9–10; post, at 7–10, 18 (Kagan, J.,
dissenting). Because the purpose and character of Mr. Warhol’s work
is so different from Ms. Goldsmith’s, the Foundation insists, the
first statutory factor points in favor of finding a fair-use
affirmative defense.

															By contrast, on Ms. Goldsmith’s reading of the
law and under the Second Circuit’s approach, the first fair-use
factor requires courts to assess the purpose and character of the challenged use . Ante, at 21. The Foundation now owns
Mr. Warhol’s image of Prince and it recently sought to license that
image to a magazine looking for a depiction of Prince to accompany
an article about Prince. Ibid. Ms. Goldsmith seeks to
license her copyrighted photograph to exactly these kinds of
buyers. And because the purpose and character of the Foundation’s
challenged use and the purpose and character of her own protected
use overlap so completely, Ms. Goldsmith argues that the first
statutory factor does not support a fair-use affirmative
defense.

															As I see it, the second view of the law is the
better one. Nothing in the copyright statute calls on judges to
speculate about the purpose an artist may have in mind when working
on a particular project. Nothing in the law requires judges to try
their hand at art criticism and assess the aesthetic character of
the resulting work. Instead, the first statutory fair-use factor
instructs courts to focus on “the purpose and character of the
use , including whether such use is of a commercial
nature or is for nonprofit educational purposes .” §107(1)
(emphases added). By its terms, the law trains our attention on the
particular use under challenge. And it asks us to assess whether
the purpose and character of that use is different from (and thus
complements) or is the same as (and thus substitutes for) a
copyrighted work. It’s a comparatively modest inquiry focused on
how and for what reason a person is using a copyrighted work in the
world, not on the moods of any artist or the aesthetic quality of
any creation.

															To my mind, three contextual clues confirm that
this reading of the statutory text is the correct one.

															First, the statutory preamble to all four
fair-use factors instructs courts to assess whether the person
asserting a fair-use defense seeks to “use” a copyrighted work “for purposes such as criticism, comment, news reporting,
teaching . . . , scholarship, or research.” §107
(emphasis added). Once more, the statute indicates that a court
must examine the purpose of the particular use under challenge, not
the artistic purpose underlying a work. And once more, the statute
tasks courts with asking whether the challenged use serves a
different purpose (as, say, a “criticism” of or “comment” on the
original) or whether it seeks to serve the same purpose (as a
substitute for the original).

															Second, the copyright statute expressly protects
a copyright holder’s exclusive right to create “derivative works”
that “transfor[m]” or “adap[t]” his original work. §§101, 106(2).
So saying that a later user of a copyrighted work “transformed” its
message and endowed it with a “new aesthetic” cannot automatically
mean he has made fair use of it. Contra, post, at 1–2,
22–23, 34–36 (Kagan, J., dissenting). To hold otherwise would risk
making a nonsense of the statutory scheme—suggesting that
transformative uses of originals belong to the copyright holder
(under §106) but that others may simultaneously claim those
transformative uses for themselves (under §107). We aren’t normally
in the business of putting a statute “at war with itself ” in
this way. United States v. American Tobacco Co. , 221 U.S.
106 , 180 (1911).

															Finally, the fourth fair-use factor requires
courts to assess “the effect of the use upon the potential market
for or value of the copyrighted work.” §107(4). This Court has
described the fourth factor as the “most important” one. Harper
& Row, Publishers, Inc. v. Nation Enterprises , 471 U.S.
539 , 566 (1985). This Court has said, too, that no factor may
“be treated in isolation, one from another.” Campbell v. Acuff-Rose Music, Inc. , 510 U.S.
569 , 578 (1994). Nor does anything in the fourth factor call on
courts to speculate about artistic ambitions or aesthetics.
Instead, it requires courts to ask whether consumers treat a
challenged use “as a market replacement” for a copyrighted work or
a market complement that does not impair demand for the original. Id. , at 591. Reading §107 as a whole, then, it supplies
courts with a sequential chain of questions about the particular challenged use —starting with its purpose and character (in the first factor) and ending with its effect (in the fourth). There is no double counting here.
Contra, post , at 22 (Kagan, J., dissenting). Instead, the
statute proceeds from step to step, asking judges to assess whether
the challenged use (as revealed by its purpose, character, amount
of source material used, and effect) serves as a complement to or a
substitute for a copyrighted work.

															With all this in mind, the Court’s decision
seems to me exactly right. Does Mr. Warhol’s image seek to depict
Prince as a “larger-than-life” icon while Ms. Goldsmith’s
photograph attempts to cast him in a more “vulnerable” light? See ante, at 28–35; post , at 9–10, 35 (Kagan, J.,
dissenting). Or are the artistic purposes latent in the two images
and their aesthetic character actually more similar than that?
Happily, the law does not require judges to tangle with questions
so far beyond our competence. Instead, the first fair-use factor
requires courts to assess only whether the purpose and character of
the challenged use is the same as a protected use. And here,
the undisputed facts reveal that the Foundation sought to use its
image as a commercial substitute for Ms. Goldsmith’s photograph. Of
course, competitive products often differ in material respects and
a buyer may find these differences reason to prefer one offering
over another. Cf. post, at 10, 18 (Kagan, J., dissenting).
But under the first fair-use factor the salient point is that the
purpose and character of the Foundation’s use involved competition
with Ms. Goldsmith’s image. To know that much is to know the first
fair-use factor favors Ms. Goldsmith.

															It is equally important, however, to acknowledge
what this case does not involve and what the Court does not decide.
Worried about the fate of artists seeking to portray reclining
nudes or papal authorities, or authors hoping to build on classic
literary themes? Post , at 25–35 (Kagan, J., dissenting).
Worry not. This case does not call on us to strike a balance
between rewarding creators and enabling others to build on their
work. That is Congress’s job. See U. S. Const., Art. I, §8,
cl. 8. Nor does this case even call on us to interpret and apply
many of the reticulated elements of the Copyright Act that Congress
has adopted to balance these competing interests. Our only job
today is to interpret and apply faithfully one statutory factor
among many Congress has deemed relevant to the affirmative defense
of fair use.

															That observation points the way to another. The
Court today does not even decide whether the Foundation’s image of
Prince infringes on Ms. Goldsmith’s copyright. To uphold a claim of
infringement under the Copyright Act, a court must find the
defendant copied elements of the plaintiff ’s work that are
themselves original. Feist Publications, Inc. v. Rural
Telephone Service Co. , 499 U.S.
340 , 361 (1991). As part of this process, a court must isolate
and vindicate only the truly original elements of a copyrighted
work. See 2 Nimmer on Copyright §8.01[D] (2022). The plaintiff must
usually show not only a similarity but a “substantial” similarity
between the allegedly infringing work and the original elements of
his own copyrighted work. See 4 Nimmer on Copyright §13.03[A]
(2023). And even when two works are substantially similar,
if both the plaintiff ’s and the defendant’s works copy from a
third source (reworking, say, a traditional artistic or literary
theme), a claim for infringement generally will not succeed. See 2
Nimmer on Copyright §8.01[C]. In this case, we address none of
these questions or other elements of the infringement standard
designed to ensure room for later artists to build on the work of
their predecessors. The district court concluded that it “need not
address” the merits of Ms. Goldsmith’s infringement claim because
the Foundation could prevail at summary judgment on its affirmative
defense of fair use. 382 F. Supp. 3d 312, 324 (SDNY
2019). The Second Circuit reversed, focused primarily on the
district court’s “application of the four fair-use factors.” 11
F. 4th 26, 32 (2021); see id., at 36–52. And this Court
granted review to decide only the question of fair use and only the
role of a single factor in that affirmative defense. 596 U. S.
___ (2022).

															Last but hardly least, while our interpretation
of the first fair-use factor does not favor the Foundation in this
case, it may in others. If, for example, the Foundation had sought
to display Mr. Warhol’s image of Prince in a nonprofit museum or a
for-profit book commenting on 20th-century art, the purpose and
character of that use might well point to fair use. But those cases
are not this case. Before us, Ms. Goldsmith challenges only the
Foundation’s effort to use its portrait as a commercial substitute
for her own protected photograph in sales to magazines looking for
images of Prince to accompany articles about the musician. And our
only point today is that, while the Foundation may often have a
fair-use defense for Mr. Warhol’s work, that does not mean it
always will. Under the law Congress has given us, each challenged
use must be assessed on its own terms. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 21-869

															_________________

															ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS, INC., PETITIONER v. LYNN GOLDSMITH, et al.

															on writ of certiorari to the united states court of appeals for
the second circuit

															[May 18, 2023]

															Justice Kagan, with whom The Chief Justice joins,
dissenting.

															Today, the Court declares that Andy Warhols eye-popping
silkscreen of Prince-a work based on but dramatically altering an
existing photograph-is (in copyright lingo) not "transformative."
Still more, the Court decides that even if Warhol's portrait were
transformative-even if its expression and meaning were worlds away
from the photo-that fact would not matter. For in the majority's
view, copyright law's first fair-use factor-addressing "the purpose
and character" of "the use made of a work"-is uninterested in the
distinctiveness and newness of Warhol's portrait.17 U. S. C. §107.
What matters under that factor, the majority says, is instead a
marketing decision: In the majority's view, Warhol's licensing of
the silkscreen to a magazine precludes fair use.[ 1 ]

															You've probably heard of Andy Warhol; you've probably seen his
art. You know that he reframed and reformulated-in a word,
transformed-images created first by others. Campbell's soup cans
and Brillo boxes. Photos of celebrity icons: Marilyn, Elvis,
Jackie, Liz-and, as most relevant here, Prince. That's how Warhol
earned his conspicuous place in every college's Art History 101. So
it may come as a surprise to see the majority describe the Prince
silkscreen as a "modest alteration[ ]" of Lynn Goldsmith's
photograph-the result of some "crop[ping]" and "flatten[ing]"-with
the same "essential nature." Ante , at 8, 25, n. 14, 33
(emphasis deleted). Or more generally, to observe the majority's
lack of appreciation for the way his works differ in both
aesthetics and message from the original templates. In a recent
decision, this Court used Warhol paintings as the perfect exemplar
of a "copying use that adds something new and important"-of a use
that is "transformative," and thus points toward a finding of fair
use. Google LLC v. Oracle America, Inc. , 593 U. S.
___, ___-___ (2021) (slip op., at 24-25). That Court would have
told this one to go back to school.

															What is worse, that refresher course would apparently be
insufficient. For it is not just that the majority does not realize
how much Warhol added; it is that the majority does not care. In
adopting that posture of indifference, the majority does something
novel (though in law, unlike in art, it is rarely a good thing to
be transformative). Before today, we assessed "the purpose and
character" of a copier's use by asking the following question: Does
the work "add[ ] something new, with a further purpose or different
character, altering the [original] with new expression, meaning, or
message"? Campbell v. Acuff-Rose Music,
Inc. , 510 U.S.
569 , 579 (1994); see Google , 593 U. S., at ___ (slip
op., at 24). When it did so to a significant degree, we called the
work "transformative" and held that the fair-use test's first
factor favored the copier (though other factors could outweigh that
one). But today's decision-all the majority's protestations
notwithstanding-leaves our first-factor inquiry in shambles. The
majority holds that because Warhol licensed his work to a
magazine-as Goldsmith sometimes also did-the first factor goes
against him. See, e.g. , ante , at 35. It does not
matter how different the Warhol is from the original photo-how much
"new expression, meaning, or message" he added. It does not matter
that the silkscreen and the photo do not have the same aesthetic
characteristics and do not convey the same meaning. It does not
matter that because of those dissimilarities, the magazine
publisher did not view the one as a substitute for the other. All
that matters is that Warhol and the publisher entered into a
licensing transaction, similar to one Goldsmith might have done.
Because the artist had such a commercial purpose, all the
creativity in the world could not save him.

															That doctrinal shift ill serves copyright's core purpose. The
law does not grant artists (and authors and composers and so on)
exclusive rights-that is, monopolies-for their own sake. It does so
to foster creativity-"[t]o promote the [p]rogress" of both arts and
science. U. S. Const., Art. I, §8, cl. 8. And for that same reason,
the law also protects the fair use of copyrighted material. Both
Congress and the courts have long recognized that an overly
stringent copyright regime actually "stifle[s]" creativity by
preventing artists from building on the work of others. Stewart v. Abend , 495 U.S.
207 , 236 (1990) (internal quotation marks omitted); see Campbell , 510 U. S., at 578-579. For, let's be honest,
artists don't create all on their own; they cannot do what they do
without borrowing from or otherwise making use of the work of
others. That is the way artistry of all kinds-visual, musical,
literary-happens (as it is the way knowledge and invention
generally develop). The fair-use test's first factor responds to
that truth: As understood in our precedent, it provides "breathing
space" for artists to use existing materials to make fundamentally
new works, for the public's enjoyment and benefit. Id. , at
579. In now remaking that factor, and thus constricting fair use's
boundaries, the majority hampers creative progress and undermines
creative freedom. I respectfully dissent.[ 2 ]

															I

															A

															Andy Warhol is the avatar of transformative copying. Cf. Google , 593 U. S., at ___-___ (slip op., at 24-25)
(selecting Warhol, from the universe of creators, to illustrate
what transformative copying is). In his early career, Warhol worked
as a commercial illustrator and became experienced in varied
techniques of reproduction. By night, he used those techniques-in
particular, the silkscreen-to create his own art. His own-even
though in one sense not. The silkscreen enabled him to make
brilliantly novel art out of existing "images carefully selected
from popular culture." D. De Salvo, God Is in the Details, in Andy
Warhol Prints 22 (4th rev. ed. 2003). The works he produced,
connecting traditions of fine art with mass culture, depended on
"appropriation[s]": The use of "elements of an extant image[ ] is
Warhol's entire modus operandi." B. Gopnik, Artistic Appropriation
vs. Copyright Law, N. Y. Times, Apr. 6, 2021, p. C4 (internal
quotation marks omitted). And with that m.o., he changed modern
art; his appropriations and his originality were flipsides of each
other. To a public accustomed to thinking of art as formal works
"belong[ing] in gold frames"-disconnected from the everyday world
of products and personalities-Warhol's paintings landed like a
thunderclap. A. Danto, Andy Warhol 36 (2009). Think Soup Cans or,
in another vein, think Elvis. Warhol had created "something very
new"-"shockingly important, transformative art." B. Gopnik, Warhol
138 (2020); Gopnik, Artistic Appropriation.

															To see the method in action, consider one of Warhol's pre-Prince
celebrity silkscreens-this one, of Marilyn Monroe. He began with a
publicity photograph of the actress. And then he went to work. He
reframed the image, zooming in on Monroe's face to "produc[e] the
disembodied effect of a cinematic close-up." 1 App. 161 (expert
declaration). At that point, he produced a high-contrast, flattened image on a
sheet of clear acetate. He used that image to trace an outline on
the canvas. And he painted on top-applying exotic colors with "a
flat, even consistency and an industrial appearance." Id. ,
at 165. The same high-contrast image was then reproduced in
negative on a silkscreen, designed to function as a selectively
porous mesh. Warhol would "place the screen face down on the
canvas, pour ink onto the back of the mesh, and use a squeegee to
pull the ink through the weave and onto the canvas." Id. , at
164. On some of his Marilyns (there are many), he reordered the
process-first ink, then color, then (perhaps) ink again. See id. , at 165-166. The result-see for yourself-is miles away
from a literal copy of the publicity photo. Andy Warhol, Marilyn, 1964, acrylic and silkscreen ink on
linen And the meaning is different from any the photo had. Of course,
meaning in great art is contestable and contested (as is the
premise that an artwork is great). But note what some experts say
about the complex message(s) Warhol's Marilyns convey. On one
level, those vivid, larger-than-life paintings are celebrity
iconography, making a "secular, profane subject[ ]" "transcendent"
and "eternal." Id. , at 209 (internal quotation marks
omitted). But they also function as a biting critique of the cult
of celebrity, and the role it plays in American life. With
misaligned, "Day-Glo" colors suggesting "artificiality and
industrial production," Warhol portrayed the actress as a "consumer
product." The Metropolitan Museum of Art Guide 233 (2012); The
Metropolitan Museum of Art, Marilyn (2023) (online source archived
at https://www.supremecourt.gov). And in so doing, he "exposed the
deficiencies" of a "mass-media culture" in which "such superficial
icons loom so large." 1 App. 208, 210 (internal quotation marks
omitted). Out of a publicity photo came both memorable portraiture
and pointed social commentary.

															As with Marilyn, similarly with Prince. In 1984, Vanity Fair
commissioned Warhol to create a portrait based on a black-and-white
photograph taken by noted photographer Lynn Goldsmith: As he did in the Marilyn series, Warhol cropped the photo, so
that Prince's head fills the whole frame: It thus becomes
"disembodied," as if "magically suspended in space." Id. , at
174. And as before, Warhol converted the cropped photo into a
higher-contrast image, incorporated into a silkscreen. That image
isolated and exaggerated the darkest details of Prince's head; it
also reduced his "natural, angled position," presenting him in a
more face-forward way. Id. , at 223. Warhol traced, painted,
and inked, as earlier described. See supra , at 5-6. He also
made a second silkscreen, based on his tracings; the ink he passed
through that screen left differently colored, out-of-kilter lines
around Prince's face and hair (a bit hard to see in the
reproduction below-more pronounced in the original). Altogether,
Warhol made 14 prints and two drawings-the Prince series-in a range
of unnatural, lurid hues. See Appendix, ante , at 39. Vanity
Fair chose the Purple Prince to accompany an article on the
musician. Thirty-two years later, just after Prince died, Condé
Nast paid Warhol (now actually his foundation, see supra , at
1, n. 1) to use the Orange Prince on the cover of a special
commemorative magazine. A picture (or two), as the saying goes, is
worth a thousand words, so here is what those magazines
published: Andy Warhol, Prince, 1984, synthetic paint and silkscreen ink on
canvas It does not take an art expert to see a transformation-but in
any event, all those offering testimony in this case agreed there
was one. The experts explained, in far greater detail than I have,
the laborious and painstaking work that Warhol put into these and
other portraits. See 1 App. 160-185, 212-216, 222-224. They
described, in ways I have tried to suggest, the resulting visual
differences between the photo and the silkscreen. As one summarized
the matter: The two works are "materially distinct" in "their
composition, presentation, color palette, and media"- i.e. ,
in pretty much all their aesthetic traits. Id. , at
227.[ 3 ] And with the change in form came an
undisputed change in meaning. Goldsmith's focus-seen in what one
expert called the "corporeality and luminosity" of her
depiction-was on Prince's "unique human identity." Id. , at
176, 227. Warhol's focus was more nearly the opposite. His subject
was "not the private person but the public image." Id. , at
159. The artist's "flattened, cropped, exotically colored, and
unnatural depiction of Prince's disembodied head" sought to
"communicate a message about the impact of celebrity" in
contemporary life. Id. , at 227. On Warhol's canvas, Prince
emerged as "spectral, dark, [and] uncanny"-less a real person than
a "mask-like simulacrum." Id. , at 187, 249. He was reframed
as a "larger than life" "icon or totem." Id. , at 257. Yet he
was also reduced: He became the product of a "publicity machine"
that "packages and disseminates commoditized images." Id. ,
at 160. He manifested, in short, the dehumanizing culture of
celebrity in America. The message could not have been more
different.

															A thought experiment may pound the point home. Suppose you were
the editor of Vanity Fair or Condé Nast, publishing an article
about Prince. You need, of course, some kind of picture. An
employee comes to you with two options: the Goldsmith photo, the
Warhol portrait. Would you say that you don't really care? That the
employee is free to flip a coin? In the majority's view, you
apparently would. Its opinion, as further discussed below, is built
on the idea that both are just "portraits of Prince" that may
equivalently be "used to depict Prince in magazine stories about
Prince." Ante , at 12-13; see ante , at 22-23, and n.
11, 27, n. 15, 33, 35. All I can say is that it's a good thing the
majority isn't in the magazine business. Of course you would care!
You would be drawn aesthetically to one, or instead to the other.
You would want to convey the message of one, or instead of the
other. The point here is not that one is better and the other
worse. The point is that they are fundamentally different. You
would see them not as "substitute[s]," but as divergent ways to (in
the majority's mantra) "illustrate a magazine about Prince with a
portrait of Prince." Ante , at 15, 33; see ante , at
22-23, and n. 11, 27, n. 15, 35. Or else you (like the majority)
would not have much of a future in magazine publishing.

															In any event, the editors of Vanity Fair and Condé Nast
understood the difference-the gulf in both aesthetics and
meaning-between the Goldsmith photo and the Warhol portrait. They
knew about the photo; but they wanted the portrait. They saw that
as between the two works, Warhol had effected a transformation.

															B

															The question in this case is whether that transformation should
matter in assessing whether Warhol made "fair use" of Goldsmith's
copyrighted photo. The answer is yes-it should push toward
(although not dictate) a finding of fair use. That answer comports
with the copyright statute, its underlying policy, and our
precedent concerning the two. Under established copyright law
(until today), Warhol's addition of important "new expression,
meaning, [and] message" counts in his favor in the fair-use
inquiry. Campbell , 510 U. S., at 579.

															Start by asking a broader question: Why do we have "fair use"
anyway? The majority responds that while copyrights encourage the
making of creative works, fair use promotes their "public
availability." Ante , at 13 (internal quotation marks
omitted). But that description sells fair use far short. Beyond
promoting "availability," fair use itself advances creativity and
artistic progress. See Campbell , 510 U. S., at 575, 579
(fair use is "necessary to fulfill copyright's very purpose"-to
"promote science and the arts"). That is because creative work does
not happen in a vacuum. "Nothing comes from nothing, nothing ever
could," said songwriter Richard Rodgers, maybe thinking not only
about love and marriage but also about how the Great American
Songbook arose from vaudeville, ragtime, the blues, and
jazz.[ 4 ] This Court has long understood the
point-has gotten how new art, new invention, and new knowledge
arise from existing works. Our seminal opinion on fair use quoted
the illustrious Justice Story:

															"In truth, in literature, in science and in art, there are, and
can be, few, if any, things, which . . . are strictly new and
original throughout. Every book in literature, science and art,
borrows, and must necessarily borrow, and use much which was well
known and used before." Id. , at 575 (quoting Emerson v. Davies , 8 F. Cas. 615, 619 (No. 4,436) (CC Mass.
1845)).

															Because that is so, a copyright regime with no escape valves
would "stifle the very creativity which [the] law is designed to
foster." Stewart , 495 U. S., at 236. Fair use is such an
escape valve. It "allow[s] others to build upon" copyrighted
material, so as not to "put manacles upon" creative progress. Campbell , 510 U. S., at 575 (internal quotation marks
omitted). In short, copyright's core value-promoting
creativity-sometimes demands a pass for copying.

															To identify when that is so, the courts developed and Congress
later codified a multi-factored inquiry. As the majority describes,
see ante , at 14, the current statute sets out four
non-exclusive considerations to guide courts. They are: (1) "the
purpose and character of the use" made of the copyrighted work,
"including whether such use is of a commercial nature"; (2) "the
nature of the copyrighted work"; (3) "the amount and substantiality
of the portion used in relation to the copyrighted work as a
whole"; and (4) "the effect of the use upon the potential market
for or value of the copyrighted work."17 U. S. C. §107. Those
factors sometimes point in different directions; if so, a court
must weigh them against each other. In doing so, we have stated,
courts should view the fourth factor-which focuses on the copyright
holder's economic interests-as the "most important." See Harper
& Row, Publishers, Inc. v. Nation
Enterprises , 471 U.S.
539 , 566 (1985).[ 5 ] But the overall balance
cannot come out right unless each factor is assessed correctly.
This case, of course, is about (and only about) the first.

															And that factor is distinctive: It is the only one that focuses
on what the copier's use of the original work accomplishes. The
first factor asks about the "character" of that use-its "main or
essential nature[,] esp[ecially] as strongly marked and serving to
distinguish." Webster's Third New International Dictionary 376
(1976). And the first factor asks about the "purpose" of the
use-the "object, effect, or result aimed at, intended, or
attained." Id. , at 1847. In that way, the first factor gives
the copier a chance to make his case. See P. Leval, Toward a Fair
Use Standard, 103 Harv. L. Rev. 1105, 1116 (1990) (describing
factor 1 as "the soul of " the "fair use defense"). Look, the
copier can say, at how I altered the original, and what I achieved
in so doing. Look at how (as Judge Leval's seminal article put the
point) the original was "used as raw material" and was "transformed
in the creation of new information, new aesthetics, new insights." Id. , at 1111. That is hardly the end of the fair-use inquiry
(commercialism, too, may bear on the first factor, and anyway there
are three factors to go), but it matters profoundly. Because when a
transformation of the original work has occurred, the user of the
work has made the kind of creative contribution that copyright law
has as its object.

															Don't take it from me (or Judge Leval): The above is exactly
what this Court has held about how to apply factor 1. In Campbell , our primary case on the topic, we stated that the
first factor's purpose-and-character test "central[ly]" concerns
"whether and to what extent the new work is 'transformative.' " 510
U. S., at 579 (quoting Leval 1111). That makes sense, we explained,
because "the goal of copyright, to promote science and the arts, is
generally furthered by the creation of transformative works." 510
U. S., at 579. We then expounded on when such a transformation
happens. Harking back to Justice Story, we explained that a "new
work" might "merely 'supersede[ ] the objects' of the original
creation"-meaning, that it does no more, and for no other end, than
the first work had. Ibid. (quoting Folsom v. Marsh , 9 F. Cas. 342 , 348 (No. 4,901) (CC Mass. 1841)). But
alternatively, the new work could "add[ ] something new, with a
further purpose or different character, altering the first with new
expression, meaning, or message." 510 U. S., at 579. Forgive me,
but given the majority's stance (see, e.g. , ante , at
33), that bears repeating: The critical factor 1 inquiry, we held,
is whether a new work alters the first with "new expression,
meaning, or message." The more it does so, the more transformative
the new work. And (here is the final takeaway) "the more
transformative the new work, the less will be the significance of
other factors, like commercialism, that may weigh against a finding
of fair use." 510 U. S., at 579. Under that approach, the Campbell Court held, the rap group 2 Live Crew's
"transformative" copying of Roy Orbison's "Pretty Woman" counted in
favor of fair use. Id. , at 583. And that was so even though
the rap song was, as everyone agreed, recorded and later sold for
profit. See id. , at 573.

															Just two Terms ago, in Google , we made all the same
points. We quoted Campbell in explaining that the factor 1
inquiry is "whether the copier's use 'adds something new, with a
further purpose or different character, altering' the copyrighted
work 'with new expression, meaning, or message.' " 593 U. S., at
___ (slip op., at 24). We again described "a copying use that adds
something new and important" as "transformative." Ibid. We
reiterated that protecting transformative uses "stimulate[s]
creativity" and thus "fulfill[s] the objective of copyright law." Ibid. (quoting Leval 1111). And then we gave an example.
Yes, of course, we pointed to Andy Warhol. (The majority claims not
to be embarrassed by this embarrassing fact because the specific
reference was to his Soup Cans, rather than his celebrity images.
But drawing a distinction between a "commentary on
consumerism"-which is how the majority describes his soup canvases, ante , at 27-and a commentary on celebrity culture, i.e. , the turning of people into consumption items, is
slicing the baloney pretty thin.) Finally, the Court conducted the
first-factor inquiry it had described. Google had replicated Sun
Microsystems' computer code as part of a "commercial endeavor,"
done "for commercial profit." 593 U. S., at ___ (slip op., at 27).
No matter, said the Court. "[M]any common fair uses are
indisputably commercial." Ibid. What mattered instead was
that Google had used Sun's code to make "something new and
important": a "highly creative and innovative" software platform. Id. , at ___-___ (slip op., at 24-25). The use of the code,
the Court held, was therefore "transformative" and "point[ed]
toward fair use." Id. , at ___, ___ (slip op., at 25,
28). Campbell and Google also illustrate the difference
it can make in the world to protect transformative works through
fair use. Easy enough to say (as the majority does, see ante , at 36) that a follow-on creator should just pay a
licensing fee for its use of an original work. But sometimes
copyright holders charge an out-of-range price for licenses. And
other times they just say no. In Campbell , for example,
Orbison's successor-in-interest turned down 2 Live Crew's request
for a license, hoping to block the rap take-off of the original
song. See 510 U. S., at 572-573. And in Google , the parties
could not agree on licensing terms, as Sun insisted on conditions
that Google thought would have subverted its business model. See
593 U. S., at ___ (slip op., at 3). So without fair use, 2 Live
Crew's and Google's works-however new and important-might never
have been made or, if made, never have reached the public. The
prospect of that loss to "creative progress" is what lay behind the
Court's inquiry into transformativeness-into the expressive novelty
of the follow-on work (regardless whether the original creator
granted permission). Id. , at ___ (slip op., at 25); see Campbell , 510 U. S., at 579.

															Now recall all the ways Warhol, in making a Prince portrait from
the Goldsmith photo, "add[ed] something new, with a further purpose
or different character"-all the ways he "alter[ed] the [original
work's] expression, meaning, [and] message." Ibid. The
differences in form and appearance, relating to "composition,
presentation, color palette, and media." 1 App. 227; see supra , at 7-10. The differences in meaning that arose from
replacing a realistic-and indeed humanistic-depiction of the
performer with an unnatural, disembodied, masklike one. See ibid. The conveyance of new messages about celebrity culture
and its personal and societal impacts. See ibid. The
presence of, in a word, "transformation"-the kind of creative
building that copyright exists to encourage. Warhol's use, to be
sure, had a commercial aspect. Like most artists, Warhol did not
want to hide his works in a garret; he wanted to sell them. But as Campbell and Google both demonstrate (and as further
discussed below), that fact is nothing near the showstopper the
majority claims. Remember, the more transformative the work, the
less commercialism matters. See Campbell , 510 U. S., at 579; supra , at 14; ante , at 18 (acknowledging the point,
even while refusing to give it any meaning). The dazzling
creativity evident in the Prince portrait might not get Warhol all
the way home in the fair-use inquiry; there remain other factors to
be considered and possibly weighed against the first one. See supra , at 2, 10, 14. But the "purpose and character of
[Warhol's] use" of the copyrighted work-what he did to the
Goldsmith photo, in service of what objects-counts powerfully in
his favor. He started with an old photo, but he created a new new
thing.[ 6 ]

															II

															The majority does not see it. And I mean that literally. There
is precious little evidence in today's opinion that the majority
has actually looked at these images, much less that it has engaged
with expert views of their aesthetics and meaning. Whatever new
expression Warhol added, the majority says, was not transformative.
See ante , at 25. Apparently, Warhol made only "modest
alterations." Ante , at 33. Anyone, the majority suggests,
could have "crop[ped], flatten[ed], trace[d], and color[ed] the
photo" as Warhol did. Ante , at 8. True, Warhol portrayed
Prince "somewhat differently." Ante , at 33. But the "degree
of difference" is too small: It consists merely in applying
Warhol's "characteristic style"-an aesthetic gloss, if you will-"to
bring out a particular meaning" that was already "available in
[Goldsmith's] photograph." Ibid. So too, Warhol's commentary
on celebrity culture matters not at all; the majority is not
willing to concede that it even exists. See ante , at 34
("even if such commentary is perceptible"). And as for the District
Court's view that Warhol transformed Prince from a "vulnerable,
uncomfortable person to an iconic, larger-than-life figure," the
majority is downright dismissive. Ante , at 32. Vulnerable,
iconic-who cares? The silkscreen and the photo, the majority
claims, still have the same "essential nature." Ante , at 25,
n. 14 (emphasis deleted).

															The description is disheartening. It's as though Warhol is an
Instagram filter, and a simple one at that ( e.g. ,
sepia-tinting). "What is all the fuss about?," the majority wants
to know. Ignoring reams of expert evidence-explaining, as every art
historian could explain, exactly what the fuss is about-the
majority plants itself firmly in the "I could paint that" school of
art criticism. No wonder the majority sees the two images as
essentially fungible products in the magazine market-publish this
one, publish that one, what does it matter? See ante , at
22-23; supra , at 10. The problem is that it does matter, for all the reasons given in the record and discussed
above. See supra , at 9-10. Warhol based his silkscreen on a
photo, but fundamentally changed its character and meaning. In
belittling those creative contributions, the majority guarantees
that it will reach the wrong result.

															Worse still, the majority maintains that those contributions,
even if significant, just would not matter. All of Warhol's
artistry and social commentary is negated by one thing: Warhol
licensed his portrait to a magazine, and Goldsmith sometimes
licensed her photos to magazines too. That is the sum and substance
of the majority opinion. Over and over, the majority incants that
"[b]oth [works] are portraits of Prince used in magazines to
illustrate stories about Prince"; they therefore both "share
substantially the same purpose"-meaning, a commercial one. Ante , at 22-23, 38; see ante , at 12-13, 27, n. 15,
33, 35. Or said otherwise, because Warhol entered into a licensing
transaction with Condé Nast, he could not get any help from factor
1-regardless how transformative his image was. See, e.g. , ante , at 35 (Warhol's licensing "outweigh[s]" any "new
meaning or message" he could have offered). The majority's
commercialism-trumps-creativity analysis has only one way out. If
Warhol had used Goldsmith's photo to comment on or critique Goldsmith's photo , he might have availed himself of that
factor's benefit (though why anyone would be interested in that
work is mysterious). See ante , at 34. But because he instead
commented on society -the dehumanizing culture of
celebrity-he is (go figure) out of luck.

															From top-to-bottom, the analysis fails. It does not fit the
copyright statute. It is not faithful to our precedent. And it does
not serve the purpose both Congress and the Court have understood
to lie at the core of fair use: "stimulat[ing] creativity," by
enabling artists and writers of every description to build on prior
works. Google , 593 U. S., at ___ (slip op., at 24). That is
how art, literature, and music happen; it is also how all forms of
knowledge advance. Even as the majority misconstrues the law, it
misunderstands-and threatens-the creative process.

															Start with what the statute tells us about whether the factor 1
inquiry should disregard Warhol's creative contributions because he
licensed his work. (Sneak preview: It shouldn't.) The majority
claims the text as its strong suit, viewing our precedents' inquiry
into new expression and meaning as a faulty "paraphrase" of the
statutory language. Ante , at 28-30. But it is the majority,
not Campbell and Google , that misreads §107(1).
First, the key term "character" plays little role in the majority's
analysis. See ante , at 12-13, 22-23, and n. 11, 29
(statements of central test or holding referring only to
"purpose"). And you can see why, given the counter-intuitive
meaning the majority (every so often) provides. See ante , at
24-25, and n. 14. When referring to the "character" of what Warhol
did, the majority says merely that he "licensed Orange Prince to
Condé Nast for $10,000." See ante , at 24. But that
reductionist view rids the term of most of its ordinary meaning.
"Character" typically refers to a thing's "main or essential
nature[,] esp[ecially] as strongly marked and serving to
distinguish." Webster's Third 376; see supra , at 13. The
essential and distinctive nature of an artist's use of a work
commonly involves artistry-as it did here. See also Campbell , 510 U. S., at 582, 588-589 (discussing the
expressive "character" of 2 Live Crew's rap). So the term
"character" makes significant everything the record contains-and
everything everyone (save the majority) knows-about the differences
in expression and meaning between Goldsmith's photo and Warhol's
silkscreen.

															Second, the majority significantly narrows §107(1)'s reference
to "purpose" (thereby paralleling its constriction of "character").
It might be obvious to you that artists have artistic purposes. And
surely it was obvious to the drafters of a law aiming to promote
artistic (and other kinds of ) creativity. But not to the majority,
which again cares only about Warhol's decision to license his art.
Warhol's purpose, the majority says, was just to "depict Prince in
[a] magazine stor[y] about Prince" in exchange for money. Ante , at 12-13. The majority spurns all that mattered to the
artist-evident on the face of his work-about "expression, meaning,
[and] message." Campbell , 510 U. S., at 579; Google ,
593 U. S., at ___ (slip op., at 24). That indifference to purposes
beyond the commercial-for what an artist, most fundamentally, wants
to communicate-finds no support in §107(1).[ 7 ]

															Still more, the majority's commercialism-über-alles view of the
factor 1 inquiry fits badly with two other parts of the fair-use
provision. To begin, take the preamble, which gives examples of
uses often thought fair: "criticism, comment, news reporting,
teaching[,] . . . scholarship, or research." §107. As we have
explained, an emphasis on commercialism would "swallow" those
uses-that is, would mostly deprive them of fair-use
protection. Campbell , 510 U. S., at 584. For the listed
"activities are generally conducted for profit in this country." Ibid. (internal quotation marks omitted). "No man but a
blockhead," Samuel Johnson once noted, "ever wrote[ ] except for
money." 3 Boswell's Life of Johnson 19 (G. Hill ed. 1934). And
Congress of course knew that when it drafted the preamble.

															Next, skip to the last factor in the fair-use test: "the effect
of the use upon the potential market for or value of the
copyrighted work." §107(4). You might think that when Congress
lists two different factors for consideration, it is because the
two factors are, well, different. But the majority transplants
factor 4 into factor 1. Recall that the majority conducts a kind of
market analysis: Warhol, the majority says, licensed his portrait
of Prince to a magazine that Goldsmith could have licensed her
photo to-and so may have caused her economic harm. See ante ,
at 22-23; see also ante , at 19 (focusing on whether a
follow-on work is a market "substitute" for the original); ante , at 4 (Gorsuch, J., concurring) (describing the
"salient point" as whether Warhol's "use involved competition with
Ms. Goldsmith's image"). That issue is no doubt important in the
fair-use inquiry. But it is the stuff of factor 4: how Warhol's use
affected the "value of " or "market for" Goldsmith's photo. Factor
1 focuses on the other side of the equation: the new expression,
meaning, or message that may come from someone else using the
original. Under the statute, courts are supposed to strike a
balance between the two-and thus between rewarding original
creators and enabling others to build on their works. That cannot
happen when a court, à la the majority, double-counts the first
goal and ignores the second.

															Is it possible I overstate the matter? I would like for that to
be true. And a puzzling aspect of today's opinion is that it
occasionally acknowledges the balance that the fair-use provision
contemplates. So, for example, the majority notes after reviewing
the relevant text that "the central question [the first factor]
asks" is whether the new work "adds something new" to the
copyrighted one. Ante , at 15 (internal quotation marks
omitted). Yes, exactly. And in other places, the majority suggests
that a court should consider in the factor 1 analysis not merely
the commercial context but also the copier's addition of "new
expression," including new meaning or message. Ante , at 12;
see ante , at 18, 24-25, n. 13, 25, 32. In that way, the
majority opinion differs from Justice Gorsuch's concurrence, which
would exclude all inquiry into whether a follow-on work is
transformative. See ante , at 2, 4. And it is possible lower
courts will pick up on that difference, and ensure that the
"newness" of a follow-on work will continue to play a significant
role in the factor 1 analysis. If so, I'll be happy to discover
that my "claims [have] not age[d] well." Ante , at 36. But
that would require courts to do what the majority does not: make a
serious inquiry into the follow-on artist's creative contributions.
The majority's refusal to do so is what creates the oddity at the
heart of today's opinion. If "newness" matters (as the opinion
sometimes says), then why does the majority dismiss all the newness
Warhol added just because he licensed his portrait to Condé Nast?
And why does the majority insist more generally that in a
commercial context "convey[ing] a new meaning or message" is "not
enough for the first factor to favor fair use"? Ante , at
35.

															Certainly not because of our precedent-which conflicts with
nearly all the majority says. As explained earlier, this Court has
decided two important cases about factor 1. See supra , at
14-16. In each, the copier had built on the original to make a
product for sale-so the use was patently commercial. And in each,
that fact made no difference, because the use was also
transformative. The copier, we held, had made a significant
creative contribution-had added real value. So in Campbell ,
we did not ask whether 2 Live Crew and Roy Orbison both meant to
make money by "including a catchy song about women on a record
album." But cf. ante , at 12-13 (asking whether Warhol and
Goldsmith both meant to charge for "depict[ing] Prince in magazine
stories about Prince"). We instead asked whether 2 Live Crew had
added significant "new expression, meaning, [and] message"; and
because we answered yes, we held that the group's rap song did not
"merely supersede the objects of the original creation." 510 U. S.,
at 579 (internal quotation marks and alteration omitted).
Similarly, in Google , we took for granted that Google (the
copier) and Sun (the original author) both meant to market software
platforms facilitating the same tasks-just as (in the majority's
refrain) Warhol and Goldsmith both wanted to market images
depicting the same subject. See 593 U. S., at ___, ___ (slip op.,
at 25, 27). "So what?" was our basic response. Google's copying had
enabled the company to make a "highly creative and innovative
tool," advancing "creative progress" and thus serving "the basic
constitutional objective of copyright." Id. , at ___ (slip
op., at 25) (internal quotation marks omitted). Search today's
opinion high and low, you will see no such awareness of how copying
can help produce valuable new works.

															Nor does our precedent support the majority's strong distinction
between follow-on works that "target" the original and those that
do not. Ante , at 35. (Even the majority does not claim that
anything in the text does so.) True enough that the rap song in Campbell fell into the former category: 2 Live Crew urged
that its work was a parody of Orbison's song. But even in
discussing the value of parody, Campbell made clear the
limits of targeting's importance. The Court observed that as the
"extent of transformation" increases, the relevance of targeting
decreases. 510 U. S., at 581, n. 14. Google proves the
point. The new work there did not parody, comment on, or otherwise
direct itself to the old: The former just made use of the latter
for its own devices. Yet that fact never made an appearance in the
Court's opinion; what mattered instead was the "highly creative"
use Google had made of the copied code. That decision is on point
here. Would Warhol's work really have been more worthy of
protection if it had (somehow) "she[d] light" on Goldsmith's
photograph, rather than on Prince, his celebrity status, and
celebrity culture? Ante , at 27. Would that Goldsmith-focused
work (whatever it might be) have more meaningfully advanced
creative progress, which is copyright's raison d'être, than the
work he actually made? I can't see how; more like the opposite. The
majority's preference for the directed work, apparently on grounds
of necessity, see ante , at 27, 34-35, again reflects its
undervaluing of transformative copying as a core part of
artistry.

															And there's the rub. (Yes, that's mostly Shakespeare.) As
Congress knew, and as this Court once saw, new creations come from
building on-and, in the process, transforming-those coming before.
Today's decision stymies and suppresses that process, in art and
every other kind of creative endeavor. The decision enhances a
copyright holder's power to inhibit artistic development, by
enabling her to block even the use of a work to fashion something
quite different. Or viewed the other way round, the decision
impedes non-copyright holders' artistic pursuits, by preventing
them from making even the most novel uses of existing materials. On
either account, the public loses: The decision operates to
constrain creative expression.[ 8 ]

															The effect, moreover, will be dramatic. Return again to Justice
Story, see supra , at 11-12: "[I]n literature, in science and
in art, there are, and can be, few, if any, things" that are "new
and original throughout." Campbell , 510 U. S., at 575
(quoting Emerson , 8 F. Cas., at 619). Every work "borrows,
and must necessarily" do so. 510 U. S., at 575. Creators themselves
know that fact deep in their bones. Here is Mark Twain on the
subject: "The kern[e]l, the soul-let us go further and say the
substance, the bulk, the actual and valuable material" of creative
works-all are "consciously and unconsciously drawn from a million
outside sources." Letter from M. Twain to H. Keller, in 2 Mark
Twain's Letters 731 (1917); see also id. , at 732 (quoting
Oliver Wendell Holmes-no, not that one, his father the poet-as
saying "I have never originated anything altogether myself, nor met
anybody who had"). "[A]ppropriation, mimicry, quotation, allusion
and sublimated collaboration," novelist Jonathan Lethem has
explained, are "a kind of sine qua non of the creative act, cutting
across all forms and genres in the realm of cultural production."
The Ecstasy of Influence, in Harper's Magazine 61 (Feb. 2007). Or
as Mary Shelley once wrote, there is no such thing as "creating out
of [a] void." Frankenstein ix (1831).[ 9 ]

															Consider, in light of those authorial references, how the
majority's factor 1 analysis might play out in literature. And why
not start with the best? Shakespeare borrowed over and over and
over. See, e.g. , 8 Narrative and Dramatic Sources of
Shakespeare 351-352 (G. Bullough ed. 1975) ("Shakespeare was an
adapter of other men's tales and plays; he liked to build a new
construction on something given"). I could point to a whole slew of
works, but let's take Romeo and Juliet as an example. Shakespeare's
version copied most directly from Arthur Brooke's The Tragical
History of Romeus and Juliet, written a few decades earlier (though
of course Brooke copied from someone, and that person copied from
someone, and that person . . . going back at least to Ovid's
story about Pyramus and Thisbe). Shakespeare took plot, characters,
themes, even passages: The friar's line to Romeo, "Art thou a man?
Thy form cries out thou art," appeared in Brooke as "Art thou a
man? The shape saith so thou art." Bullough 387. (Shakespeare was,
among other things, a good editor.) Of course Shakespeare also
added loads of genius, and so made the borrowed stories "uniquely
Shakespearian." G. Williams, Shakespeare's Basic Plot Situation, 2
Shakespeare Quarterly No. 4, p. 313 (Oct. 1951). But on the
majority's analysis? The two works-Shakespeare's and Brooke's-are
just two stories of star-crossed lovers written for commercial
gain. Shakespeare would not qualify for fair use; he would not even
come out ahead on factor 1.

															And if you think that's just Shakespeare, here are a couple
more. (Once you start looking, examples are everywhere.) Lolita,
though hard to read today, is usually thought one of the greatest
novels of the 20th century. But the plotline-an adult man takes a
room as a lodger; embarks on an obsessive sexual relationship with
the preteen daughter of the house; and eventually survives her
death, remaining marked forever-appears in a story by Heinz von
Lichberg written a few decades earlier. Oh, and the girl's name is
Lolita in both versions. See generally M. Maar, The Two Lolitas
(2005). All that said, the two works have little in common
artistically; nothing literary critics admire in the second Lolita
is found in the first. But to the majority? Just two stories of
revoltingly lecherous men, published for profit. So even factor 1
of the fair-use inquiry would not aid Nabokov. Or take one of the
most famed adventure stories ever told. Here is the provenance of
Treasure Island, as Robert Louis Stevenson himself described
it:

															"No doubt the parrot once belonged to Robinson Crusoe. No doubt
the skeleton is conveyed from [Edgar Allan] Poe. I think little of
these, they are trifles and details; and no man can hope to have a
monopoly of skeletons or make a corner in talking birds. . . . It
is my debt to Washington Irving that exercises my conscience, and
justly so, for I believe plagiarism was rarely carried farther. . .
. Billy Bones, his chest, the company in the parlor, the whole
inner spirit and a good deal of the material detail of my first
chapters-all were there, all were the property of Washington
Irving." My First Book- Treasure Island , in 21 Syracuse
University Library Associates Courier No. 2, p. 84 (1986).

															Odd that a book about pirates should have practiced piracy? Not
really, because tons of books do-and not many in order to "target"
or otherwise comment on the originals. "Thomas Mann, himself a
master of [the art,] called [it] 'higher cribbing.' " Lethem 59.
The point here is that most writers worth their salt steal other
writers' moves-and put them to other, often better uses. But the
majority would say, again and yet again in the face of such
transformative copying, "no factor 1 help and surely no fair
use."

															Or how about music? Positively rife with copying of all kinds.
Suppose some early blues artist (W. C. Handy, perhaps?) had
copyrighted the 12-bar, three-chord form-the essential foundation
(much as Goldsmith's photo is to Warhol's silkscreen) of many blues
songs. Under the majority's view, Handy could then have
controlled-meaning, curtailed-the development of the genre. And
also of a fair bit of rock and roll. "Just another rendition of
12-bar blues for sale in record stores," the majority would say to
Chuck Berry (Johnny B. Goode), Bill Haley (Rock Around the Clock),
Jimi Hendrix (Red House), or Eric Clapton (Crossroads). Or to
switch genres, imagine a pioneering classical composer (Haydn?) had
copyrighted the three-section sonata form. "One more piece built on
the same old structure, for use in concert halls," the majority
might say to Mozart and Beethoven and countless others: "Sure, some
new notes, but the backbone of your compositions is identical."

															And then, there's the appropriation of those notes, and
accompanying words, for use in new and different ways. Stravinsky
reportedly said that great composers do not imitate, but instead
steal. See P. Yates, Twentieth Century Music 41 (1967). At any
rate, he would have known. He took music from all over-from Russian
folk melodies to Schoenberg-and made it inimitably his own. And
then-as these things go-his music became a source for others.
Charlie Parker turned The Rite of Spring into something of a jazz
standard: You can still hear the Stravinsky lurking, but jazz
musicians make the composition a thing of a different kind. And
popular music? I won't point fingers, but maybe rock's only Nobel
Laureate and greatest-ever lyricist is known for some
appropriations? See M. Gilmore, The Rolling Stone Interview,
Rolling Stone, Sept. 27, 2012, pp. 51, 81.[ 10 ]
He wouldn't be alone. Here's what songwriter Nick Cave (he of the
Bad Seeds) once said about how music develops:

															"The great beauty of contemporary music, and what gives it its
edge and vitality, is its devil-may-care attitude toward
appropriation-everybody is grabbing stuff from everybody else, all the time . It's a feeding frenzy of borrowed ideas that
goes toward the advancement of rock music-the great artistic
experiment of our era." The Red Hand Files (Apr. 2020) (online
source archived at https://www.supremecourt.gov).

															But not as the majority sees the matter. Are these guys making
money? Are they appropriating for some different reason than to
critique the thing being borrowed? Then they're "shar[ing] the
objectives" of the original work, and will get no benefit from
factor 1, let alone protection from the whole fair-use test. Ante , at 24.

															Finally, back to the visual arts, for while Warhol may have been
the master appropriator within that field, he had plenty of
company; indeed, he worked within an established tradition going
back centuries (millennia?). The representatives of three giants of
modern art (you may know one for his use of comics) describe the
tradition as follows: "[T]he use and reuse of existing imagery" are
"part of art's lifeblood"-"not just in workaday practice or
fledgling student efforts, but also in the revolutionary moments of
art history." Brief for Robert Rauschenberg, Roy Lichtenstein, and
Joan Mitchell Foundations et al. as Amici Curiae 6.

															Consider as one example the reclining nude. Probably the first
such figure in Renaissance art was Giorgione's Sleeping Venus.
(Note, though, in keeping with the "nothing comes from nothing"
theme, that Giorgione apparently modeled his canvas on a woodcut
illustration by Francesco Colonna.) Here is Giorgione's
painting: Giorgione, Sleeping Venus, c. 1510, oil on canvas But things were destined not to end there. One of Giorgione's
pupils was Titian, and the former student undertook to riff on his
master. The resulting Venus of Urbino is a prototypical example of
Renaissance imitatio -the creation of an original work from
an existing model. See id. , at 8; 1 G. Vasari, Lives of the
Artists 31, 444 (G. Bull transl. 1965). You can see the
resemblance-but also the difference: Titian, Venus of Urbino, 1538, oil on canvas The majority would presumably describe these Renaissance
canvases as just "two portraits of reclining nudes painted to sell
to patrons." Cf. ante , at 12-13, 22-23. But wouldn't that
miss something-indeed, everything-about how an artist engaged with
a prior work to create new expression and add new value?

															And the reuse of past images was far from done. For here is
Édouard Manet's Olympia, now considered a foundational work of
artistic modernism, but referring in obvious ways to Titian's (and
back a step, to Giorgione's) Venus: Manet, Olympia, 1863, oil on canvas Here again consider the account of the Rauschenberg,
Lichtenstein, and Mitchell Foundations: "The revolutionary shock of
the painting depends on how traditional imagery remains the
painting's recognizable foundation, even as that imagery is
transformed and wrenched into the present." Brief as Amici
Curiae 9. It is an especially striking example of a recurrent
phenomenon-of how the development of visual art works across time
and place, constantly building on what came earlier. In fact, the
Manet has itself spawned further transformative paintings, from
Cézanne to a raft of contemporary artists across the globe. See id. , at 10-11. But the majority, as to these matters, is
uninterested and unconcerned.

															Take a look at one last example, from a modern master very
different from Warhol, but availing himself of the same
appropriative traditions. On the left (below) is Velázquez's
portrait of Pope Innocent X; on the right is Francis Bacon's Study
After Velázquez's Portrait. Velázquez, Pope Innocent X,c. 1650,
oil on canvas Francis Bacon, Study After
Velazquez's Portrait of PopeInnocent X, 1953, oil on canvas To begin with, note the word "after"
in Bacon's title. Copying is so deeply rooted in the visual arts
that there is a naming convention for it, with "after" denoting
that a painting is some kind of "imitation of a known work." M.
Clarke, The Concise Oxford Dictionary of Art Terms 5 (2d ed. 2010).
Bacon made frequent use of that convention. He was especially taken
by Velázquez's portrait of Innocent X, referring to it in tens of
paintings. In the one shown above, Bacon retained the subject,
scale, and composition of the Velázquez original. Look at one, look
at the other, and you know Bacon copied. But he also transformed.
He invested his portrait with new "expression, meaning, [and]
message," converting Velázquez's study of magisterial power into
one of mortal dread. Campbell , 510 U. S., at 579.

															But the majority, from all it says, would find the change
immaterial. Both paintings, after all, are "portraits of [Pope
Innocent X] used to depict [Pope Innocent X]" for hanging in some
interior space, ante , at 12-13; so on the majority's
reasoning, someone in the market for a papal portrait could use
either one, see ante , at 22-23. Velázquez's portrait,
although Bacon's model, is not "the object of [his] commentary." Ante , at 27; see A. Zweite, Bacon's Scream, in Francis
Bacon: The Violence of the Real 71 (A. Zweite ed. 2006) (Bacon "was
not seeking to expose Velázquez's masterpiece," but instead to
"adapt it" and "give it a new meaning"). And absent that
"target[ing]," the majority thinks the portraits' distinct messages
make no difference. Ante , at 27. Recall how the majority
deems irrelevant the District Court's view that the Goldsmith
Prince is vulnerable, the Warhol Prince iconic. Too small a "degree
of difference," according to the majority. Ante , at 33-34;
see supra , at 17. So too here, presumably: the stolid Pope,
the disturbed Pope-it just doesn't matter. But that once again
misses what a copier accomplished: the making of a wholly new piece
of art from an existing one.

															The majority thus treats creativity as a trifling part of the
fair-use inquiry, in disregard of settled copyright principles and
what they reflect about the artistic process. On the majority's
view, an artist had best not attempt to market even a
transformative follow-on work-one that adds significant new
expression, meaning, or message. That added value (unless it comes
from critiquing the original) will no longer receive credit under
factor 1. And so it can never hope to outweigh factor 4's
assessment of the copyright holder's interests. The result will be
what this Court has often warned against: suppression of "the very
creativity which [copyright] law is designed to foster." Stewart , 495 U. S., at 236; see supra , at 11-12. And
not just on the margins. Creative progress unfolds through use and
reuse, framing and reframing: One work builds on what has gone
before; and later works build on that one; and so on through time.
Congress grasped the idea when it directed courts to attend to the
"purpose and character" of artistic borrowing-to what the borrower
has made out of existing materials. That inquiry recognizes the
value in using existing materials to fashion something new. And so
too, this Court-from Justice Story's time to two Terms ago-has
known that it is through such iterative processes that knowledge
accumulates and art flourishes. But not anymore. The majority's
decision is no "continuation" of "existing copyright law." Ante , at 37. In declining to acknowledge the importance of
transformative copying, the Court today, and for the first time,
turns its back on how creativity works.

															III

															And the workings of creativity bring us back to Andy Warhol. For
Warhol, as this Court noted in Google , is the very
embodiment of transformative copying. He is proof of concept-that
an artist working from a model can create important new expression.
Or said more strongly, that appropriations can help bring great art
into being. Warhol is a towering figure in modern art not despite
but because of his use of source materials. His work-whether Soup
Cans and Brillo Boxes or Marilyn and Prince-turned something not
his into something all his own. Except that it also became all of
ours, because his work today occupies a significant place not only
in our museums but in our wider artistic culture. And if the
majority somehow cannot see it-well, that's what evidentiary
records are for. The one in this case contained undisputed
testimony, and lots of it, that Warhol's Prince series conveyed a
fundamentally different idea, in a fundamentally different artistic
style, than the photo he started from. That is not the end of the
fair-use inquiry. The test, recall, has four parts, with one
focusing squarely on Goldsmith's interests. But factor 1 is
supposed to measure what Warhol has done. Did his "new work" "add[
] something new, with a further purpose or different character"? Campbell , 510 U. S., at 579. Did it "alter[ ] the first with
new expression, meaning, or message"? Ibid. It did, and it
did. In failing to give Warhol credit for that transformation, the
majority distorts ultimate resolution of the fair-use question.

															Still more troubling are the consequences of today's ruling for
other artists. If Warhol does not get credit for transformative
copying, who will? And when artists less famous than Warhol cannot
benefit from fair use, it will matter even more. Goldsmith would
probably have granted Warhol a license with few conditions, and for
a price well within his budget. But as our precedents show,
licensors sometimes place stringent limits on follow-on uses,
especially to prevent kinds of expression they disapprove. And
licensors may charge fees that prevent many or most artists from
gaining access to original works. Of course, that is all well and
good if an artist wants merely to copy the original and market it
as his own. Preventing those uses-and thus incentivizing the
creation of original works-is what copyrights are for. But when the
artist wants to make a transformative use, a different issue is
presented. By now, the reason why should be obvious. "Inhibit[ing]
subsequent writers" and artists from "improv[ing] upon prior
works"-as the majority does today-will "frustrate the very ends
sought to be attained" by copyright law. Harper & Row ,
471 U. S., at 549. It will stifle creativity of every sort. It will
impede new art and music and literature. It will thwart the
expression of new ideas and the attainment of new knowledge. It
will make our world poorer. Notes 1 By the time of the licensing, Warhol had
died and the Warhol Foundation had stepped into his shoes. But for
ease of exposition, I will refer to both the artist and his
successor-in-interest as Warhol. 2 One preliminary note before beginning in
earnest. As readers are by now aware, the majority opinion is
trained on this dissent in a way majority opinions seldom are.
Maybe that makes the majority opinion self-refuting? After all, a
dissent with "no theory" and "[n]o reason" is not one usually
thought to merit pages of commentary and fistfuls of comeback
footnotes. Ante , at 36. In any event, I'll not attempt to
rebut point for point the majority's varied accusations; instead,
I'll mainly rest on my original submission. I'll just make two
suggestions about reading what follows. First, when you see that my
description of a precedent differs from the majority's, go take a
look at the decision. Second, when you come across an argument that
you recall the majority took issue with, go back to its response
and ask yourself about the ratio of reasoning to ipse dixit .
With those two recommendations, I'll take my chances on readers'
good judgment. 3 The majority attempts to minimize the
visual dissimilarities between Warhol's silkscreen and Goldsmith's
photograph by rotating the former image and then superimposing it
on the latter one. See ante , at 9 (fig. 6); see also Brief
for Goldsmith 17 (doing the same thing). But the majority is trying
too hard: Its manipulated picture in fact reveals the significance
of the cropping and facial reorientation that went into Warhol's
image. And the majority's WarGold combo of course cannot obscure
the other differences, of color and presentation, between the two
works. 4 In the spirit of this opinion, I might have
quoted that line without further ascription. But lawyers believe in
citations, so I will tell you that the Rodgers lyric (which is, of course , from the Sound of Music) is used-to make the same
point I do-in Rob Kapilow's Listening for America: Inside the Great
American Songbook From Gershwin to Sondheim (2019). One of that
book's themes is that even the most "radically new" music builds on
existing works-or as Irving Berlin put the point, "songs make
history, and history makes songs." Id. , at xv, 2. And so too
for every other form of art. See infra , at 26-34 (making
this point at greater length-and with pictures!). 5 The fourth factor has, to use the
majority's repeated example, forced many a filmmaker to pay for
adapting books into movies-as we noted two Terms ago. See Google
LLC v. Oracle America, Inc. , 593 U. S. ___, ___ (2021)
(slip op., at 30) (explaining that film adaptations may founder on
"[t]he fourth statutory factor" because "[m]aking a film of an
author's book" may result in "potential or presumed losses to the
copyright owner"). The majority asserts that it is "aware of no
authority for the proposition" that the fourth factor can thus
protect against unlicensed film adaptations, insisting that the
first factor must do (or at least share in) the work. Ante ,
at 29, n. 17; see ante , at 16, 28-29, 36. But Google is the "authority for the proposition": That's just what it said,
in so many words. And anyway, the majority's own first-factor test,
applied consistently, would favor, not stop, the freeloading
filmmaker. As you've seen (and I'll discuss below), that test boils
down to whether a follow-on work serves substantially the same
commercial purpose as the original-here, "depict[ing] Prince in
magazine stories about Prince." Ante , at 12-13; see ante , at 22-23, and n. 11, 27, n. 15, 33, 35. A film
adaptation doesn't fit that mold: The filmmaker (unlike Warhol, in
the majority's view) wants to reach different buyers, in different
markets, consuming different products. The majority at one point
suggests it might have some different factor 1 test in its back
pocket to deal with this problem. See ante , at 35, n. 22.
But assuming the majority's approach, as stated repeatedly in its
opinion, is truly the majority's approach, factor 1 won't help the
author in the book-to-film situation. Under that approach, it is
the fourth factor, not the first, which has to "take[ ] care of
derivative works like book-to-film adaptations." Ante , at
29, n. 17. It's a good thing the majority errs in believing that
the fourth factor isn't up to the job. 6 I have to admit, I stole that last phrase
from Michael Lewis's The New New Thing: A Silicon Valley Story
(2014). I read the book some time ago, and the phrase stuck with me
(as phrases often do). I wouldn't have thought of it on my
own. 7 The majority seeks some statutory backing
in what it describes as §107's reference to the "specific 'use' "
of a work "alleged to be 'an infringement.' " Ante , at 20;
see also ante , at 2, 4 (Gorsuch, J., concurring). Because
the challenged use here is a licensing (so says the majority), all
that matters is that Goldsmith engaged in similar commercial
transactions. But the majority is both rewriting and splicing the
statute. The key part of the statute simply asks whether the "use made of a [copyrighted] work " is fair. (The term "alleged
infringement," which the majority banks on, nowhere exists in the
text; indeed, all the statute says about infringement, and in a
separate sentence, is that a fair use doesn't count as one.) The
statute-that is, the actual one-thus focuses attention on what the
copier does with the underlying work. So when the statute more
particularly asks (in factor 1) about the "purpose and character of
the use"-meaning again, the "use made of [the copyrighted] work"-it
is asking to what end, and with what result, the copier made use of
the original. And that necessarily involves the issue of
transformation-more specifically here, how Warhol's silkscreen
transformed Goldsmith's photo. 8 No worries, the majority says: Today's
decision is only about the commercial licensing of artistic works,
not about their "creation" or their other uses. See ante , at
21, and n. 10. So, for example, if Warhol had used his Prince
silkscreen "for teaching purposes" or sought to "display [it] in a
nonprofit museum," the first factor could have gone the other way. Ante , at 21, n. 10; ante , at 6 (Gorsuch, J.,
concurring). But recall what Samuel Johnson said about
"blockheads": Unless an artist is one, he makes art for money. See supra , at 21. So when the majority denies follow-on artists
the full reward of their creativity, it diminishes their incentive
to create. And as should go without saying, works not created will
not appear in classrooms and museums. 9 OK, one last one: T. S. Eliot made the same
point more, shall we say, poetically. We often harp, he wrote, on
"the poet's difference from his predecessors." The Sacred Wood 43
(1921). "[But] we shall often find that not only the best, but the
most individual parts of his work may be those in which the dead
poets, his ancestors, assert their immortality most vigorously. . .
. No poet, no artist of any art, has his complete meaning alone." Id. , at 43-44. 10 He is, though, also one of modern music's
most bounteous sources. His work has been copied so often that
Rolling Stone (whose name was partly inspired by-OK, you guessed
it-Bob Dylan) recently published a list of the 80 greatest Dylan
covers. See J. Wenner, A Letter from the Editor, Rolling Stone,
Nov. 9, 1967, p. 2; J. Dolan et al., The 80 Greatest Dylan Covers
of All Time, Rolling Stone, May 24, 2021 (online source archived at
https://www.supremecourt.gov). (The list's collators noted that
Dylan so "loved the ide[a] of other people doing his songs" that
they struggled to settle on 80. Ibid. ) To see how important
all that copying was, consider Mr. Tambourine Man. When the Byrds
first heard Dylan's demo of the song, they weren't sure they could
use it. (David Crosby thought it was way too long.) But Roger
McGuinn decided he could "save" the tune. Ibid. Add a
Bach-inspired guitar lick (truly, J. S. Bach) and a
Beatles-inspired beat, and the "pound of Dylan's acoustic guitars"
was "transformed" into a "danceable" and "uplifting" megahit. R.
Unterberger, Turn! Turn! Turn! 137 (2002). And that rendition (not
Dylan's own) launched a thousand ships. Among other things, it
"spawned an entirely new style" of music-what soon came to be known
as "folk-rock." Id. , at 108, 132-133.