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

(Slip Opinion) OCTOBER TERM, 2022 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
ANDY WARHOL FOUNDATION FOR THE VISUAL
ARTS, INC. v. GOLDSMITH ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 21–869. Argued October 12, 2022—Decided May 18, 2023
In 2016, petitioner Andy Warhol Foundation for the Visual Arts, Inc.
(AWF) licensed to Condé Nast for $10,000 an image of “Orange
Prince”—an orange silkscreen portrait of the musician Prince created
by pop artist Andy Warhol—to appear on the cover of a magazine com-
memorating Prince. Orange Prince is one of 16 works now known as
the Prince Series that Warhol derived from a copyrighted photograph
taken in 1981 by respondent Lynn Goldsmith, a professional photog-
rapher. Goldsmith had been commissioned by Newsweek in 1981 to
photograph a then “up and coming” musician named Prince Rogers
Nelson, after which Newsweek published one of Goldsmith’s photos
along with an article about Prince. Years later, Goldsmith granted a
limited license to Vanity Fair for use of one of her Prince photos as an
“artist reference for an illustration.” The terms of the license included
that the use would be for “one time” only. Vanity Fair hired Warhol to
create the illustration, and Warhol used Goldsmith’s photo to create a
purple silkscreen portrait of Prince, which appeared with an article
about Prince in Vanity Fair’s November 1984 issue. The magazine
credited Goldsmith for the “source photograph” and paid her $400. Af-
ter Prince died in 2016, Vanity Fair’s parent company (Condé Nast)
asked AWF about reusing the 1984 Vanity Fair image for a special
edition magazine that would commemorate Prince. When Condé Nast
learned about the other Prince Series images, it opted instead to pur-
chase a license from AWF to publish Orange Prince. Goldsmith did
not know about the Prince Series until 2016, when she saw Orange
Prince on the cover of Condé Nast’s magazine. Goldsmith notified
AWF of her belief that it had infringed her copyright. AWF then sued
Goldsmith for a declaratory judgment of noninfringement or, in the
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alternative, fair use. Goldsmith counterclaimed for infringement. The
District Court considered the four fair use factors in 17 U. S. C. §107and granted AWF summary judgment on its defense of fair use. The
Court of Appeals reversed, finding that all four fair use factors favored
Goldsmith. 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 educa-
tional purposes,” §107(1), weighs in favor of AWF’s recent commercial
licensing to Condé Nast.
Held: The “purpose and character” of AWF’s use of Goldsmith’s photo-
graph in commercially licensing Orange Prince to Condé Nast does not
favor AWF’s fair use defense to copyright infringement. Pp. 12–38.
(a) AWF contends that the Prince Series works are “transformative,”
and that the first fair use factor thus weighs in AWF’s favor, because
the works convey a different meaning or message than the photograph.
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. Although new expression,
meaning, or message may be relevant to whether a copying use has a
sufficiently distinct purpose or character, it is not, without more, dis-
positive of the first factor. Here, the specific use of Goldsmith’s photo-
graph 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,
AWF’s use is of a commercial nature. Even though Orange Prince adds
new expression to Goldsmith’s photograph, in the context of the chal-
lenged use, the first fair use factor still favors Goldsmith. Pp. 12–27.
(1) The Copyright Act encourages creativity by granting to the crea-
tor of an original work a bundle of rights that includes the rights to
reproduce the copyrighted work and to prepare derivative works. 17
U. S. C. §106. Copyright, however, balances the benefits of incentives
to create against the costs of restrictions on copying. This balancing
act is reflected in the common-law doctrine of fair use, codified 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 copyright.” To determine
whether a particular use is “fair,” the statute enumerates four factors
to be considered. The factors “set forth general principles, the appli-
cation of which requires judicial balancing, depending upon relevant
circumstances.” Google LLC v. Oracle America, Inc., 593 U. S. ___, ___.
The first fair use factor, “the purpose and character of the use, in-
cluding whether such use is of a commercial nature or is for nonprofit
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educational purposes,” §107(1), considers the reasons for, and nature
of, the copier’s use of an original work. The central question it asks is
whether the use “merely supersedes the objects of the original creation
. . . (supplanting the original), or instead adds something new, with a
further purpose or different character.” Campbell v. Acuff-Rose Music,
Inc., 510 U. S. 569, 579 (internal quotation marks and citations omit-
ted). As most copying has some further purpose and many secondary
works add something new, the first factor asks “whether and to what
extent” the use at issue has a purpose or character different from the
original. Ibid. (emphasis added). The larger the difference, the more
likely the first factor weighs in favor of fair use. A use that has a fur-
ther purpose or different character is said to be “transformative,” but
that too is a matter of degree. Ibid. To preserve the copyright owner’s
right to prepare derivative works, defined in §101 of the Copyright Act
to include “any other form in which a work may be recast, transformed,
or adapted,” the degree of transformation required to make “trans-
formative” use of an original work must go beyond that required to
qualify as a derivative.
The Court’s decision in Campbell is instructive. In holding that par-
ody may be fair use, 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 was 2 Live Crew’s copy-
ing of Roy Orbison’s song, “Oh, Pretty Woman,” to create a rap deriva-
tive, “Pretty Woman.” 2 Live Crew transformed Orbison’s song by add-
ing new lyrics and musical elements, such that “Pretty Woman” had a
different message and aesthetic than “Oh, Pretty Woman.” But that
did not end the Court’s analysis of the first fair use factor. The Court
found it necessary to determine whether 2 Live Crew’s transformation
rose to the level of parody, a distinct purpose of commenting on the
original or criticizing it. Further distinguishing between parody and
satire, the Court explained that “[p]arody needs to mimic an original
to make its point, and so has some claim to use the creation of its vic-
tim’s (or collective victims’) imagination, whereas satire can stand on
its own two feet and so requires justification for the very act of borrow-
ing.” Id., at 580–581. More generally, when “commentary has no crit-
ical bearing on the substance or style of the original composition, . . .
the claim to fairness in borrowing from another’s work diminishes ac-
cordingly (if it does not vanish), and other factors, like the extent of its
commerciality, loom larger.” Id., at 580.
Campbell illustrates two important points. First, the fact that a use
is commercial as opposed to nonprofit is an additional element of the
first fair use factor. The commercial nature of a use is relevant, but
not dispositive. It is to be weighed against the degree to which the use
4 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
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has a further purpose or different character. Second, the first factor
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 di-
minishing the incentive to create. In a narrower sense, a use may be
justified because copying is reasonably necessary to achieve the user’s
new purpose. Parody, for example, “needs to mimic an original to
make its point.” Id., at 580–581. Similarly, other commentary or crit-
icism that targets an original work may have compelling reason to
“conjure up” the original by borrowing from it. Id., at 588. An inde-
pendent 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, e.g., Google, 593 U. S., at ___ (slip op., at 26).
In sum, if an original work and secondary use share the same or
highly similar purposes, and the secondary use is commercial, the first
fair use factor is likely to weigh against fair use, absent some other
justification for copying. Pp. 13–20.
(2) The fair use provision, and the first factor in particular, re-
quires 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. Here, Goldsmith’s copyrighted photograph has been used in
multiple ways. The Court limits its analysis to the specific use alleged
to be infringing in this case—AWF’s commercial licensing of Orange
Prince to Condé Nast—and expresses no opinion as to the creation,
display, or sale of the original Prince Series works. In the context of
Condé Nast’s special edition magazine commemorating Prince, the
purpose of the Orange Prince image is substantially the same as that
of Goldsmith’s original photograph. Both are portraits of Prince used
in magazines to illustrate stories about Prince. The use also is of a
commercial nature. Taken together, these two elements counsel
against fair use here. Although a use’s transformativeness may out-
weigh its commercial character, in this case both point in the same
direction. That does not mean that all of Warhol’s derivative works,
nor all uses of them, give rise to the same fair use analysis. Pp. 20–
27.
(b) AWF contends that the purpose and character of its use of Gold-
smith’s photograph weighs in favor of fair use because Warhol’s silk-
screen image of the photograph has a different meaning or message.
By adding new expression to the photograph, AWF says, Warhol made
transformative use of it. Campbell did describe a transformative use
as one that “alter[s] the first [work] with new expression, meaning, or
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message.” 510 U. S., at 579. But Campbell cannot be read to mean
that §107(1) weighs in favor of any use that adds new expression,
meaning, or message. Otherwise, “transformative use” would swallow
the copyright owner’s exclusive right to prepare derivative works, as
many derivative works that “recast, transfor[m] or adap[t]” the origi-
nal, §101, add new expression of some kind. The meaning of a second-
ary work, as reasonably can be perceived, should be considered to the
extent necessary to determine whether the purpose of the use is dis-
tinct from the original. For example, the Court in Campbell considered
the messages of 2 Live Crew’s song to determine whether the song had
a parodic purpose. But fair use is an objective inquiry into what a user
does with an original work, not an inquiry into the subjective intent of
the user, or into the meaning or impression that an art critic or judge
draws from a work.
Even granting the District Court’s conclusion that Orange Prince
reasonably can be perceived to portray Prince as iconic, whereas Gold-
smith’s portrayal is photorealistic, that difference must be evaluated
in the context of the specific use at issue. The purpose of AWF’s recent
commercial licensing of Orange Prince was 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 differ-
ently 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 and commercial nature of the
use. To hold otherwise might authorize a range of commercial copying
of photographs to be used for purposes that are substantially the same
as those of the originals.
AWF asserts another related purpose of Orange Prince, which is to
comment on the “dehumanizing nature” and “effects” of celebrity. No
doubt, many of Warhol’s works, and particularly his uses of repeated
images, can be perceived as depicting celebrities as commodities. But
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, the asserted commentary is at Campbell’s lowest ebb: It
“has no critical bearing on” Goldsmith’s photograph, thus the commen-
tary’s “claim to fairness in borrowing from” her work “diminishes ac-
cordingly (if it does not vanish).” Campbell, 510 U. S., at 580. The
commercial nature of the use, on the other hand, “loom[s] larger.” Ibid.Like satire that does not target an original work, AWF’s asserted com-
mentary “can stand on its own two feet and so requires justification for
the very act of borrowing.” Id., at 581. Moreover, because AWF’s copy-
ing of Goldsmith’s photograph was for a commercial use so similar to
the photograph’s typical use, a particularly compelling justification is
6 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
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needed. Copying the photograph because doing so was merely helpful
to convey a new meaning or message is not justification enough. Pp.
28–37.
(c) Goldsmith’s original works, like those of other photographers, are
entitled to copyright protection, even against famous artists. Such pro-
tection 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, Gold-
smith’s photograph of Prince, and AWF’s copying use of the photo-
graph in an image licensed to a special edition magazine devoted to
Prince, share substantially the same commercial purpose. AWF has
offered no other persuasive justification for its unauthorized use of the
photograph. While the Court has cautioned that the four statutory fair
use factors may not “be treated in isolation, one from another,” but
instead all must be “weighed together, in light of the purposes of copy-
right,” Campbell, 510 U. S., at 578, here AWF challenges only the
Court of Appeals’ determinations on the first fair use factor, and the
Court agrees the first factor favors Goldsmith. P. 38.
11 F. 4th 26, affirmed.
SOTOMAYOR, J., delivered the opinion of the Court, in which THOMAS,
ALITO, GORSUCH, KAVANAUGH, BARRETT, and JACKSON, JJ., joined. GOR-
SUCH, J., filed a concurring opinion, in which JACKSON, J., joined. KAGAN,
J., filed a dissenting opinion, in which ROBERTS, C. J., joined.
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Opinion of the Court
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 typographical or other formal errors.
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 great-
est 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
2 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
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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 edu-
cational 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 spe-
cialty 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
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a self-starter. She quickly became “a leading rock photog-
rapher” 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 pho-
tos, 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.
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 Amer-
ican art, known among other things for his silkscreen por-
traits of celebrities.1 From Goldsmith’s photograph, Warhol
——————
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
4 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
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Figure 1. A black and white portrait photograph of Prince
taken in 1981 by Lynn Goldsmith.
created a silkscreen portrait of Prince, which appeared
alongside an article about Prince in the November 1984 is-
sue of Vanity Fair. See fig. 2, infra. The article, titled “Pur-
ple 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. War-
hol received an unspecified amount.
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
——————
impressions” served as an “ ‘under-drawing,’ ” over which Warhol painted
colors by hand. Id., at 165.
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Figure 2. A purple silkscreen portrait of Prince created in 1984
by Andy Warhol to illustrate an article in Vanity Fair.
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.
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 com-
mercial 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 in-
formed Condé Nast about the other Prince Series images,
however, Condé Nast obtained a license to publish Orange
——————
2 AWF sold 12 of the works to collectors and galleries, and it trans-
ferred custody of the remaining four works to the Andy Warhol Museum
in Pittsburgh.
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Figure 3. An orange silkscreen portrait of Prince on the cover
of a special edition magazine published in 2016 by Condé Nast.
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.
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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.
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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.
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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 al-
ternative, fair use. Goldsmith counterclaimed for infringe-
ment.
The District Court granted summary judgment for AWF.
382 F. Supp. 3d 312, 316 (SDNY 2019). The court consid-
ered the four fair use factors enumerated in 17 U. S. C. §107and held that the Prince Series works made fair use of Gold-
smith’s photograph. As to the first factor, the works were
“transformative” because, looking at them and the photo-
graph “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
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iconic, larger-than-life figure,” such that “each Prince Se-
ries 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 be-
cause 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 re-
moved 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 pur-
pose 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 pri-
mary 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 omit-
ted). The Court of Appeals also rejected the District Court’s
logic that “ ‘each Prince Series work’ ” is transformative be-
cause it “ ‘is immediately recognizable as a “Warhol,” ’ ”
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which the Court of Appeals believed would “create a celeb-
rity-plagiarist privilege.” Id., at 43; see also ibid. (“[T]he
fact that Martin Scorsese’s recent film The Irishman is rec-
ognizably ‘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 sub-
stantiality 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 licens-
ing 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 in-
deed 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
——————
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 photo-
graph, 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 Enter-
prises, 471 U. S. 539, 568 (1985).
12 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
Opinion of the Court
issue” was “the Foundation’s commercial licensing” of im-
ages 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 fac-
tor, 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 com-
mercial 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 photo-
graph. 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
Cite as: 598 U. S. ____ (2023) 13
Opinion of the Court
Prince in magazine stories about Prince, the original photo-
graph 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 respec-
tive Writings and Discoveries”). That bundle includes the
rights to reproduce the copyrighted work, to prepare deriv-
ative 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 lit-
erature, music, and the other arts.” Twentieth Century Mu-
sic 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 lim-
itation, the defense of “fair use.” In 1976, Congress codified
14 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
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Opinion of the Court
the common-law doctrine of fair use in §107, which pro-
vides: “[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 appli-
cation of the copyright statute when, on occasion, it would
stifle the very creativity which that law is designed to fos-
ter.” 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 princi-
ples apply across a wide range of copyrightable material,
from books to photographs to software, fair use is a “flexi-
ble” 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 na-
ture or is for nonprofit educational purposes.” §107(1). This
Cite as: 598 U. S. ____ (2023) 15
Opinion of the Court
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 in-
stead adds something new, with a further purpose or differ-
ent 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 in-
quiry. Campbell, 510 U. S., at 577–578 (quoting §101). As
the Court of Appeals observed, the “examples are easily un-
derstood,” 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,
——————
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 criti-
cism) 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).
16 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
Opinion of the Court
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 differ-
ence, the less likely.
A use that has a further purpose or different character is
said to be “ ‘transformative.’ ” Ibid. (quoting P. Leval, To-
ward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1111
(1990) (hereinafter Leval)). As before, “transformative-
ness” 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 in-
clude “any other form in which a work may be recast, trans-
formed, 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
——————
5 In theory, the question of transformative use or transformative pur-
pose can be separated from the question whether there has been trans-
formation of a work. In practice, however, the two may overlap. Com-
pare, e.g., Núñez v. Caribbean Int’l News Corp., 235 F. 3d 18, 21–23 (CA1
Cite as: 598 U. S. ____ (2023) 17
Opinion of the Court
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 transform-
ative value” because “it can provide social benefit, by shed-
ding 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 ele-
ments from Roy Orbison’s song, “Oh, Pretty Woman,” to cre-
ate 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 transfor-
mation of Orbison’s song rose to the level of parody, a dis-
tinct 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’) imagina-
tion, 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 criti-
——————
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 trans-
formative purpose of parody).
18 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
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Opinion of the Court
cal bearing on the substance or style of the original compo-
sition, . . . 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., con-
curring).
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 signifi-
cance 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 di-
minishing 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 copy-
right’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”).
——————
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 educa-
tional purposes,’ ” in the first fair use factor “to state explicitly” that, “as
under the present law, the commercial or non-profit character of an ac-
tivity, 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).
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Opinion of the Court
A use that shares the purpose of a copyrighted work, by con-
trast, 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 pur-
pose. Parody, for example, “needs to mimic an original to
make its point.” Campbell, 510 U. S., at 580–581. Simi-
larly, other commentary or criticism that targets an origi-
nal 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 dissemina-
tion 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
——————
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 it-
self. 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 justifica-
tion 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 fair-
ness. Campbell, 510 U. S., at 581.
20 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
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Opinion of the Court
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 copy-
ing.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
——————
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 inter-
faces 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).
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Opinion of the Court
“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 pho-
tograph 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 ac-
cordingly. In particular, the Court expresses no opinion as
to the creation, display, or sale of any of the original Prince
Series works.10
——————
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 Re-
spondents 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 com-
mercial licensing and Warhol’s original creation. The result is a series
of misstatements and exaggerations, from the dissent’s very first sen-
22 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
Opinion of the Court
A typical use of a celebrity photograph is to accompany
stories about the celebrity, often in magazines. For exam-
ple, Goldsmith licensed her photographs of Prince to illus-
trate 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 “un-
controverted” evidence “that photographers generally li-
cense 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 photo-
graphs 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 edi-
tion 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 con-
cert 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
——————
tence, post, at 1 (“Today, the Court declares that Andy Warhol’s eye-pop-
ping silkscreen of Prince . . . is (in copyright lingo) not ‘transformative’ ”),
to its very last, post, at 36 (“[The majority opinion] will make our world
poorer”).
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Opinion of the Court
in magazines to illustrate stories about Prince.11 Such “en-
vironment[s]” are not “distinct and different.” Google, 593
——————
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 essen-
tial 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 maga-
zine market.” Post, at 18; see post, at 10. Rather, the Court finds signif-
icant the degree of similarity between the specific purposes of the origi-
nal 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 maga-
zine 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.
24 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
Opinion of the Court
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 find-
ing of fair use.” Harper & Row, 471 U. S., at 562.13
——————
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 associa-
tion 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 rela-
tionship 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
Cite as: 598 U. S. ____ (2023) 25
Opinion of the Court
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
——————
inquiry “should disregard Warhol’s creative contributions because he li-
censed his work”; or that an artist may not “market even a transforma-
tive 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 char-
acter 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 na-
ture[,] 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 sup-
port the implication that “character” is determined by any aesthetic dis-
tinctiveness, 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?
26 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
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Opinion of the Court
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 ‘adver-
tising 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.
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
Figure 7. A print based on the Campbell’s soup can, one of
Warhol’s works that replicates a copyrighted advertising logo.
Cite as: 598 U. S. ____ (2023) 27
Opinion of the Court
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 commen-
tary. Hence, the use of the copyrighted work not only serves
a completely different purpose, to comment on consumer-
ism 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 an-
other compelling justification for the use. See infra, at 34–
35, and nn. 20–21.
——————
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.
28 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
Opinion of the Court
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 par-
ticular, “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 Ap-
peals 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 infor-
mation, 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 copy-
right 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 infor-
mation, 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
Cite as: 598 U. S. ____ (2023) 29
Opinion of the Court
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 fur-
ther, examining whether and to what extent 2 Live Crew’s
song had the parodic purpose of “commenting on the origi-
nal 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.
——————
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).
30 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
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Opinion of the Court
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 par-
ody cannot function unless it conjures up the original, “sat-
ire can stand on its own two feet and so requires justifica-
tion 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 ex-
pression, meaning, or message” was not the test.18
What role meaning or message played in the Court of Ap-
peals’ analysis here is not entirely clear. The court correctly
——————
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.
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Opinion of the Court
rejected the idea “that any secondary work that adds a new
aesthetic or new expression to its source material is neces-
sarily transformative.” 11 F. 4th, at 38–39. It also ap-
peared correctly to accept that meaning or message is rele-
vant to, but not dispositive of, purpose. See id., at 41 (“[T]he
secondary work itself must reasonably be perceived as em-
bodying 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 second-
ary work’s use of its source material is in service of a fun-
damentally different and new artistic purpose and charac-
ter, [which] must, at a bare minimum, comprise something
more than the imposition of another artist’s style on the pri-
mary 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. Don-
aldson Lithographing Co., 188 U. S. 239, 251 (1903)
(Holmes, J.) (“It would be a dangerous undertaking for per-
sons 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
——————
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
32 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
Opinion of the Court
the user (or the subjective interpretation of a court) deter-
mine the purpose of the use. But the meaning of a second-
ary work, as reasonably can be perceived, should be consid-
ered 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 other-
wise 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
——————
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 photo-
graph “had [its] worth and [its] success is sufficiently shown by the desire
to reproduce [it] without regard to [her] rights.” Id., at 252.
Cite as: 598 U. S. ____ (2023) 33
Opinion of the Court
‘recogniz[e] any alteration as transformative.’ ” Ibid. (quot-
ing 4 Nimmer, Copyright §13.05[B][6]). Whether the pur-
pose 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 Or-
ange 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 photo-
graph 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, reasona-
bly can be perceived as conveying several possible mean-
ings. 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.
34 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
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Opinion of the Court
AWF asserts another, albeit related, purpose, which is to
comment on the “dehumanizing nature” and “effects” of ce-
lebrity. Brief for Petitioner 44, 51. No doubt, many of War-
hol’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 bor-
rowing 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.——————
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 in-
stead 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.”
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Opinion of the Court
Here, the circumstances of AWF’s 2016 licensing out-
weigh 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 bor-
rowing.” 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 mean-
ing 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 play-
wright 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 au-
thor 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 sec-
ondary author’s different message.” Authors Guild, 804
F. 3d, at 215.
——————
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.
36 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
Opinion of the Court
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 noth-
ing,’ ” 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 orig-
inal 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 innova-
tive activity, on the one hand, and allowing follow-on inno-
vation, 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
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Opinion of the Court
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 com-
mercial 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.
38 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
Opinion of the Court
III
Lynn Goldsmith’s original works, like those of other pho-
tographers, 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 sub-
stantially 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’ deter-
minations that the second factor, “the nature of the copy-
righted work,” §107(2); third factor, “the amount and sub-
stantiality 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 copy-
righted 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.
Cite as: 598 U. S. ____ (2023) 39
Opinion
Appendix of the of
to opinion Court
the Court
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.
Cite as: 598 U. S. ____ (2023) 1
GORSUCH, J., concurring
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 inter-
pretation. It concerns the meaning of one of four factors
Congress has instructed courts to consult when a party in-
vokes the affirmative defense of “fair use” to a claim of cop-
yright infringement. The statutory factor in question re-
quires courts to consider “the purpose and character of the
use.” 17 U. S. C. §107(1). The parties disagree which “pur-
pose” and “character” counts.
On the Foundation’s telling, the statute requires courts
to focus on the purpose the creator had in mind when pro-
ducing 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., dis-
senting). Because the purpose and character of Mr. War-
hol’s work is so different from Ms. Goldsmith’s, the Foun-
dation 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
2 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
GORSUCH, J., concurring
under the Second Circuit’s approach, the first fair-use fac-
tor 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 li-
cense 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 pur-
pose and character of her own protected use overlap so com-
pletely, 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 work-
ing on a particular project. Nothing in the law requires
judges to try their hand at art criticism and assess the aes-
thetic 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 pur-
poses such as criticism, comment, news reporting, teaching
Cite as: 598 U. S. ____ (2023) 3
GORSUCH, J., concurring
. . . , 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 copy-
right 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 aes-
thetic” cannot automatically mean he has made fair use of
it. Contra, post, at 1–2, 22–23, 34–36 (KAGAN, J., dissent-
ing). 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 as-
sess “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 fac-
tor may “be treated in isolation, one from another.” Camp-
bell 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.
4 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
GORSUCH, J., concurring
Id., at 591. Reading §107 as a whole, then, it supplies
courts with a sequential chain of questions about the par-
ticular challenged use—starting with its purpose and char-
acter (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 chal-
lenged 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., dis-
senting). Or are the artistic purposes latent in the two im-
ages and their aesthetic character actually more similar
than that? Happily, the law does not require judges to tan-
gle 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 com-
mercial substitute for Ms. Goldsmith’s photograph. Of
course, competitive products often differ in material re-
spects and a buyer may find these differences reason to pre-
fer 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 de-
cide. Worried about the fate of artists seeking to portray
reclining nudes or papal authorities, or authors hoping to
Cite as: 598 U. S. ____ (2023) 5
GORSUCH, J., concurring
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 Con-
gress 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” simi-
larity between the allegedly infringing work and the origi-
nal 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 de-
fendant’s works copy from a third source (reworking, say, a
traditional artistic or literary theme), a claim for infringe-
ment generally will not succeed. See 2 Nimmer on Copy-
right §8.01[C]. In this case, we address none of these ques-
tions 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 in-
fringement claim because the Foundation could prevail at
summary judgment on its affirmative defense of fair use.
6 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
GORSUCH, J., concurring
382 F. Supp. 3d 312, 324 (SDNY 2019). The Second Circuit
reversed, focused primarily on the district court’s “applica-
tion 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 mu-
seum 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.
Cite as: 598 U. S. ____ (2023) 1
KAGAN, J., dissenting
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 Warhol’s eye-pop-
ping silkscreen of Prince—a work based on but dramati-
cally 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 un-
interested 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 reformu-
lated—in a word, transformed—images created first by oth-
ers. Campbell’s soup cans and Brillo boxes. Photos of ce-
lebrity icons: Marilyn, Elvis, Jackie, Liz—and, as most
——————
1 By the time of the licensing, Warhol had died and the Warhol Foun-
dation 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 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
KAGAN, J., dissenting
relevant here, Prince. That’s how Warhol earned his con-
spicuous 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 “flat-
ten[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 dif-
fer in both aesthetics and message from the original tem-
plates. In a recent decision, this Court used Warhol paint-
ings as the perfect exemplar of a “copying use that adds
something new and important”—of a use that is “transform-
ative,” 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 ma-
jority 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[ ] some-
thing new, with a further purpose or different character, al-
tering the [original] with new expression, meaning, or mes-
sage”? 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 sham-
bles. 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
Cite as: 598 U. S. ____ (2023) 3
KAGAN, J., dissenting
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 be-
cause of those dissimilarities, the magazine publisher did
not view the one as a substitute for the other. All that mat-
ters is that Warhol and the publisher entered into a licens-
ing 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 copy-
right regime actually “stifle[s]” creativity by preventing art-
ists from building on the work of others. Stewart v. Abend,
495 U. S. 207, 236 (1990) (internal quotation marks omit-
ted); see Campbell, 510 U. S., at 578–579. For, let’s be hon-
est, 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
4 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
KAGAN, J., dissenting
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 “ap-
propriation[s]”: The use of “elements of an extant image[ ]
is Warhol’s entire modus operandi.” B. Gopnik, Artistic Ap-
propriation 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 accus-
tomed to thinking of art as formal works “belong[ing] in
——————
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 ma-
jority 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 come-
back 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.
Cite as: 598 U. S. ____ (2023) 5
KAGAN, J., dissenting
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 cre-
ated “something very new”—“shockingly important, trans-
formative art.” B. Gopnik, Warhol 138 (2020); Gopnik, Ar-
tistic 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 ex-
otic 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
6 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
KAGAN, J., dissenting
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 lit-
eral 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, pro-
fane subject[ ]” “transcendent” and “eternal.” Id., at 209 (in-
ternal quotation marks omitted). But they also function as
a biting critique of the cult of celebrity, and the role it plays
Cite as: 598 U. S. ____ (2023) 7
KAGAN, J., dissenting
in American life. With misaligned, “Day-Glo” colors sug-
gesting “artificiality and industrial production,” Warhol
portrayed the actress as a “consumer product.” The Metro-
politan 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 “ex-
posed the deficiencies” of a “mass-media culture” in which
“such superficial icons loom so large.” 1 App. 208, 210 (in-
ternal quotation marks omitted). Out of a publicity photo
came both memorable portraiture and pointed social com-
mentary.
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
8 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
KAGAN, J., dissenting
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
Cite as: 598 U. S. ____ (2023) 9
KAGAN, J., dissenting
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 mat-
ter: The two works are “materially distinct” in “their com-
position, 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 “cor-
poreality 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 pri-
vate person but the public image.” Id., at 159. The artist’s
“flattened, cropped, exotically colored, and unnatural depic-
tion 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 ma-
chine” that “packages and disseminates commoditized im-
ages.” Id., at 160. He manifested, in short, the dehuman-
izing culture of celebrity in America. The message could
——————
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.
10 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
KAGAN, J., dissenting
not have been more different.
A thought experiment may pound the point home. Sup-
pose you were the editor of Vanity Fair or Condé Nast, pub-
lishing 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 dif-
ferent. 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
Cite as: 598 U. S. ____ (2023) 11
KAGAN, J., dissenting
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 ad-
dition of important “new expression, meaning, [and] mes-
sage” 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 ad-
vances 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. “Noth-
ing comes from nothing, nothing ever could,” said song-
writer Richard Rodgers, maybe thinking not only about love
and marriage but also about how the Great American Song-
book 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 ex-
isting 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
——————
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!).
12 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
KAGAN, J., dissenting
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 pro-
gress. Campbell, 510 U. S., at 575 (internal quotation
marks omitted). In short, copyright’s core value—promot-
ing creativity—sometimes demands a pass for copying.
To identify when that is so, the courts developed and Con-
gress later codified a multi-factored inquiry. As the major-
ity 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 cop-
yrighted work, “including whether such use is of a commer-
cial nature”; (2) “the nature of the copyrighted work”; (3)
“the amount and substantiality of the portion used in rela-
tion to the copyrighted work as a whole”; and (4) “the effect
of the use upon the potential market for or value of the cop-
yrighted 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 copy-
right 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
——————
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
Cite as: 598 U. S. ____ (2023) 13
KAGAN, J., dissenting
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 fo-
cuses on what the copier’s use of the original work accom-
plishes. 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
——————
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 consist-
ently, 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 differ-
ent 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 re-
peatedly 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.
14 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
KAGAN, J., dissenting
in the creation of new information, new aesthetics, new in-
sights.” 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 ex-
actly 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 copy-
right, to promote science and the arts, is generally fur-
thered 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 fac-
tor 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
Cite as: 598 U. S. ____ (2023) 15
KAGAN, J., dissenting
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 mes-
sage.’ ” 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 “ful-
fill[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 em-
barrassed 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 con-
ducted 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,
16 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
KAGAN, J., dissenting
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 con-
ditions that Google thought would have subverted its busi-
ness 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 Camp-
bell, 510 U. S., at 579.
Now recall all the ways Warhol, in making a Prince por-
trait 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 appear-
ance, 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 in-
deed humanistic—depiction of the performer with an un-
natural, disembodied, masklike one. See ibid. The convey-
ance 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 fur-
Cite as: 598 U. S. ____ (2023) 17
KAGAN, J., dissenting
ther discussed below), that fact is nothing near the show-
stopper the majority claims. Remember, the more trans-
formative the work, the less commercialism matters. See
Campbell, 510 U. S., at 579; supra, at 14; ante, at 18 (ac-
knowledging 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. Ap-
parently, 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 dif-
ferently.” Ante, at 33. But the “degree of difference” is too
small: It consists merely in applying Warhol’s “characteris-
tic style”—an aesthetic gloss, if you will—“to bring out a
particular meaning” that was already “available in [Gold-
smith’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
——————
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.
18 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
KAGAN, J., dissenting
if such commentary is perceptible”). And as for the District
Court’s view that Warhol transformed Prince from a “vul-
nerable, 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 mag-
azine market—publish this one, publish that one, what
does it matter? See ante, at 22–23; supra, at 10. The prob-
lem 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 con-
tributions, the majority guarantees that it will reach the
wrong result.
Worse still, the majority maintains that those contribu-
tions, even if significant, just would not matter. All of War-
hol’s artistry and social commentary is negated by one
thing: Warhol licensed his portrait to a magazine, and Gold-
smith 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 other-
wise, because Warhol entered into a licensing transaction
with Condé Nast, he could not get any help from factor 1—
Cite as: 598 U. S. ____ (2023) 19
KAGAN, J., dissenting
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 dehu-
manizing 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 descrip-
tion 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 contri-
butions 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 “charac-
ter” 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 refer-
ring 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
20 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
KAGAN, J., dissenting
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 in-
volves artistry—as it did here. See also Campbell, 510
U. S., at 582, 588–589 (discussing the expressive “charac-
ter” 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 ref-
erence 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 ) cre-
ativity. But not to the majority, which again cares only
about Warhol’s decision to license his art. Warhol’s pur-
pose, 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 “expres-
sion, 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 sup-
port in §107(1).7
——————
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 infringe-
ment.’ ” Ante, at 20; see also ante, at 2, 4 (GORSUCH, J., concurring). Be-
cause the challenged use here is a licensing (so says the majority), all
that matters is that Goldsmith engaged in similar commercial transac-
tions. But the majority is both rewriting and splicing the statute. The
key part of the statute simply asks whether the “use made of a [copy-
righted] work” is fair. (The term “alleged infringement,” which the ma-
jority banks on, nowhere exists in the text; indeed, all the statute says
Cite as: 598 U. S. ____ (2023) 21
KAGAN, J., dissenting
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 commercial-
ism would “swallow” those uses—that is, would mostly de-
prive 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 cop-
yrighted work.” §107(4). You might think that when Con-
gress lists two different factors for consideration, it is be-
cause 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
——————
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 atten-
tion on what the copier does with the underlying work. So when the
statute more particularly asks (in factor 1) about the “purpose and char-
acter 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 transfor-
mation—more specifically here, how Warhol’s silkscreen transformed
Goldsmith’s photo.
22 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
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KAGAN, J., dissenting
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 some-
one else using the original. Under the statute, courts are
supposed to strike a balance between the two—and thus be-
tween 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 some-
thing 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 fol-
low-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 se-
rious inquiry into the follow-on artist’s creative contribu-
tions. 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
Cite as: 598 U. S. ____ (2023) 23
KAGAN, J., dissenting
dismiss all the newness Warhol added just because he li-
censed his portrait to Condé Nast? And why does the ma-
jority 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 origi-
nal to make a product for sale—so the use was patently
commercial. And in each, that fact made no difference, be-
cause 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 “in-
cluding 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 quota-
tion 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 re-
frain) 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 crea-
tive and innovative tool,” advancing “creative progress” and
thus serving “the basic constitutional objective of copy-
right.” Id., at ___ (slip op., at 25) (internal quotation marks
omitted). Search today’s opinion high and low, you will see
24 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
KAGAN, J., dissenting
no such awareness of how copying can help produce valua-
ble new works.
Nor does our precedent support the majority’s strong dis-
tinction 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 opin-
ion; 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 celeb-
rity status, and celebrity culture? Ante, at 27. Would that
Goldsmith-focused work (whatever it might be) have more
meaningfully advanced creative progress, which is copy-
right’s raison d’être, than the work he actually made? I
can’t see how; more like the opposite. The majority’s pref-
erence for the directed work, apparently on grounds of ne-
cessity, see ante, at 27, 34–35, again reflects its undervalu-
ing 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 sup-
presses 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
Cite as: 598 U. S. ____ (2023) 25
KAGAN, J., dissenting
block even the use of a work to fashion something quite dif-
ferent. Or viewed the other way round, the decision im-
pedes non-copyright holders’ artistic pursuits, by prevent-
ing 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 sci-
ence 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 out-
side sources.” Letter from M. Twain to H. Keller, in 2 Mark
Twain’s Letters 731 (1917); see also id., at 732 (quoting Ol-
iver Wendell Holmes—no, not that one, his father the
poet—as saying “I have never originated anything alto-
gether myself, nor met anybody who had”). “[A]ppropria-
tion, mimicry, quotation, allusion and sublimated collabo-
ration,” 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
——————
8 No worries, the majority says: Today’s decision is only about the com-
mercial 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.
26 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
KAGAN, J., dissenting
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 His-
tory 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). Shake-
speare 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 sto-
ries “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. Shake-
speare would not qualify for fair use; he would not even
——————
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 mean-
ing alone.” Id., at 43–44.
Cite as: 598 U. S. ____ (2023) 27
KAGAN, J., dissenting
come out ahead on factor 1.
And if you think that’s just Shakespeare, here are a cou-
ple more. (Once you start looking, examples are every-
where.) 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; em-
barks 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 Cru-
soe. No doubt the skeleton is conveyed from [Edgar Al-
lan] Poe. I think little of these, they are trifles and de-
tails; 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 con-
science, 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 Ir-
ving.” 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
28 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
KAGAN, J., dissenting
to “target” or otherwise comment on the originals. “Thomas
Mann, himself a master of [the art,] called [it] ‘higher crib-
bing.’ ” 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 cop-
ying, “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, per-
haps?) had copyrighted the 12-bar, three-chord form—the
essential foundation (much as Goldsmith’s photo is to War-
hol’s silkscreen) of many blues songs. Under the majority’s
view, Handy could then have controlled—meaning, cur-
tailed—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 (Cross-
roads). Or to switch genres, imagine a pioneering classical
composer (Haydn?) had copyrighted the three-section so-
nata 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 im-
itate, 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 differ-
ent kind. And popular music? I won’t point fingers, but
Cite as: 598 U. S. ____ (2023) 29
KAGAN, J., dissenting
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 atti-
tude toward appropriation—everybody is grabbing
stuff from everybody else, all the time. It’s a feeding
frenzy of borrowed ideas that goes toward the advance-
ment 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
——————
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. Unter-
berger, 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.
30 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
KAGAN, J., dissenting
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 represent-
atives 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 life-
blood”—“not just in workaday practice or fledgling student
efforts, but also in the revolutionary moments of art his-
tory.” 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 “noth-
ing 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
Cite as: 598 U. S. ____ (2023) 31
KAGAN, J., dissenting
But things were destined not to end there. One of Gior-
gione’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 founda-
tional work of artistic modernism, but referring in obvious
ways to Titian’s (and back a step, to Giorgione’s) Venus:
32 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
KAGAN, J., dissenting
Manet, Olympia, 1863, oil on canvas
Here again consider the account of the Rauschenberg, Lich-
tenstein, 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 pre-
sent.” Brief as Amici Curiae 9. It is an especially striking
example of a recurrent phenomenon—of how the develop-
ment 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 uninter-
ested 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.
Cite as: 598 U. S. ____ (2023) 33
KAGAN, J., dissenting
Velázquez, Pope Innocent X, Francis Bacon, Study After
c. 1650, oil on canvas Velázquez’s Portrait of Pope
Innocent X, 1953, oil on canvas
To begin with, note the word “after” in Bacon’s title. Copy-
ing is so deeply rooted in the visual arts that there is a nam-
ing 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). Ba-
con made frequent use of that convention. He was espe-
cially 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 Veláz-
quez 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
34 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
KAGAN, J., dissenting
majority’s reasoning, someone in the market for a papal
portrait could use either one, see ante, at 22–23. Veláz-
quez’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 Veláz-
quez’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 vulnera-
ble, the Warhol Prince iconic. Too small a “degree of differ-
ence,” according to the majority. Ante, at 33–34; see supra,
at 17. So too here, presumably: the stolid Pope, the dis-
turbed 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 sig-
nificant 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 mar-
gins. 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 borrow-
Cite as: 598 U. S. ____ (2023) 35
KAGAN, J., dissenting
ing—to what the borrower has made out of existing materi-
als. That inquiry recognizes the value in using existing ma-
terials 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 ma-
jority’s decision is no “continuation” of “existing copyright
law.” Ante, at 37. In declining to acknowledge the im-
portance 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 ap-
propriations 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 be-
came all of ours, because his work today occupies a signifi-
cant 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 War-
hol’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 meas-
ure what Warhol has done. Did his “new work” “add[ ]
something new, with a further purpose or different charac-
ter”? Campbell, 510 U. S., at 579. Did it “alter[ ] the first
with new expression, meaning, or message”? Ibid. It did,
36 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
KAGAN, J., dissenting
and it did. In failing to give Warhol credit for that trans-
formation, the majority distorts ultimate resolution of the
fair-use question.
Still more troubling are the consequences of today’s rul-
ing for other artists. If Warhol does not get credit for trans-
formative 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 War-
hol a license with few conditions, and for a price well within
his budget. But as our precedents show, licensors some-
times 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 in-
centivizing the creation of original works—is what copy-
rights are for. But when the artist wants to make a trans-
formative 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.