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

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Volume 598 U. S. Part 2
Pages 508–593
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508 OCTOBER TERM, 2022
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 photogra-
pher. Goldsmith had been commissioned by Newsweek in 1981 to pho-
tograph 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 li-
cense to Vanity Fair for use of one of her Prince photos as an “artist
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reference for an illustration.” The terms of the license included that
the use would be for “one time” only. Vanity Fair hired Warhol to cre-
ate the illustration, and Warhol used Goldsmith's photo to create a pur-
ple 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. After 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 purchase 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 notifed AWF of her belief that
it had infringed her copyright. AWF then sued Goldsmith for a declar-
atory judgment of noninfringement or, in the alternative, fair use.
Goldsmith counterclaimed for infringement. The District Court consid-
ered the four fair use factors in 17 U. S. C. § 107 and granted AWF sum-
mary judgment on its defense of fair use. The Court of Appeals
reversed, fnding that all four fair use factors favored Goldsmith. In
this Court, the sole question presented is whether the frst fair use fac-
tor, “the purpose and character of the use, including whether such use
is of a commercial nature or is for nonproft educational purposes,”
Cite as: 598 U. S. 508 (2023) 509
Syllabus
§ 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. 525–551.
(a) AWF contends that the Prince Series works are “transformative,”
and that the frst fair use factor thus weighs in AWF's favor, because
the works convey a different meaning or message than the photograph.
But the frst 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
suffciently distinct purpose or character, it is not, without more, disposi-
tive of the frst factor. Here, the specifc use of Goldsmith's photograph
alleged to infringe her copyright is AWF's licensing of Orange Prince to
Condé Nast. As portraits of Prince used to depict Prince in magazine
stories about Prince, the original photograph and AWF's copying use of
it share substantially the same purpose. Moreover, AWF's use is of a
commercial nature. Even though Orange Prince adds new expression
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to Goldsmith's photograph, in the context of the challenged use, the frst
fair use factor still favors Goldsmith. Pp. 525–540.
(1) The Copyright Act encourages creativity by granting to the cre-
ator 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 benefts of incentives
to create against the costs of restrictions on copying. This balancing
act is refected in the common-law doctrine of fair use, codifed 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 con-
sidered. The factors “set forth general principles, the application of
which requires judicial balancing, depending upon relevant circum-
stances.” Google LLC v. Oracle America, Inc., 593 U. S. –––, –––.
The frst fair use factor, “the purpose and character of the use, includ-
ing whether such use is of a commercial nature or is for nonproft educa-
tional 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 . . . (sup-
planting the original), or instead adds something new, with a further
purpose or different character.” Campbell v. Acuff-Rose Music, Inc.,
510 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
Syllabus
510 U. S. 569, 579 (internal quotation marks omitted). As most copy-
ing has some further purpose and many secondary works add some-
thing new, the frst 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 frst
factor weighs in favor of fair use. A use that has a further purpose or
different character is said to be “transformative,” but that too is a mat-
ter of degree. Ibid. To preserve the copyright owner's right to pre-
pare derivative works, defned 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 “transforma-
tive” 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 beneft, by
shedding light on an earlier work, and, in the process, creating a new
one.” Ibid. The use at issue was 2 Live Crew's copying of Roy Orbi-
son's song, “Oh, Pretty Woman,” to create a rap derivative, “Pretty
Woman.” 2 Live Crew transformed Orbison's song by adding new lyr-
ics and musical elements, such that “Pretty Woman” had a different
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message and aesthetic than “Oh, Pretty Woman.” But that did not end
the Court's analysis of the frst fair use factor. The Court found it nec-
essary 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 victim's (or collec-
tive victims') imagination, whereas satire can stand on its own two feet
and so requires justifcation for the very act of borrowing.” Id., at 580–
581. More generally, when “commentary has no critical bearing on the
substance or style of the original composition, . . . the claim to fairness
in borrowing from another's work diminishes accordingly (if it does not
vanish), and other factors, like the extent of its commerciality, loom
larger.” Id., at 580.
Campbell illustrates two important points. First, the fact that a use
is commercial as opposed to nonproft is an additional element of the
frst 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 has
a further purpose or different character. Second, the frst factor relates
to the justifcation for the use. In a broad sense, a use that has a dis-
tinct purpose is justifed because it furthers the goal of copyright,
namely, to promote the progress of science and the arts, without dimin-
Cite as: 598 U. S. 508 (2023) 511
Syllabus
ishing the incentive to create. In a narrower sense, a use may be justi-
fed 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 criticism that
targets an original work may have compelling reason to “conjure up”
the original by borrowing from it. Id., at 588. An independent justi-
fcation like this is particularly relevant to assessing fair use where an
original work and copying use share the same or highly similar pur-
poses, or where wide dissemination of a secondary work would other-
wise run the risk of substitution for the original or licensed derivatives
of it. See id., at 580, n. 14.
In sum, if an original work and secondary use share the same or
highly similar purposes, and the secondary use is commercial, the frst
fair use factor is likely to weigh against fair use, absent some other
justifcation for copying. Pp. 526–533.
(2) The fair use provision, and the frst factor in particular, requires
an analysis of the specifc “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 specifc use alleged to be
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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. Al-
though a use's transformativeness may outweigh its commercial charac-
ter, 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. 533–540.
(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 frst [work] with new expression, meaning, or
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, mean-
ing, or message. Otherwise, “transformative use” would swallow the
copyright owner's exclusive right to prepare derivative works, as many
512 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
Syllabus
derivative works that “recast, transfor[m] or adap[t]” the original, § 101,
add new expression of some kind. The meaning of a secondary work,
as reasonably can be perceived, should be considered to the extent nec-
essary to determine whether the purpose of the use is distinct 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 rea-
sonably 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 specifc 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 specifcally 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 frst factor to favor AWF,
given the specifc context and commercial nature of the use. To hold
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otherwise might authorize a range of commercial copying of photo-
graphs 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 justifcation
for the very act of borrowing.” Id., at 581. Moreover, because AWF's
copying of Goldsmith's photograph was for a commercial use so similar
to the photograph's typical use, a particularly compelling justifcation is
needed. Copying the photograph because doing so was merely helpful
to convey a new meaning or message is not justifcation enough.
Pp. 540–550.
Cite as: 598 U. S. 508 (2023) 513
Syllabus
(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 suff-
ciently distinct from the original. In this case, however, Goldsmith's
photograph of Prince and AWF's copying use of the photograph in an
image licensed to a special edition magazine devoted to Prince share
substantially the same commercial purpose. AWF has offered no other
persuasive justifcation 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 copyright,” Campbell,
510 U. S., at 578, here AWF challenges only the Court of Appeals' deter-
minations on the frst fair use factor, and the Court agrees the frst
factor favors Goldsmith. Pp. 550–551.
11 F. 4th 26, affrmed.
Sotomayor, J., delivered the opinion of the Court, in which Thomas,
Alito, Gorsuch, Kavanaugh, Barrett, and Jackson, JJ., joined. Gor-
such, J., fled a concurring opinion, in which Jackson, J., joined, post,
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p. 553. Kagan, J., fled a dissenting opinion, in which Roberts, C. J.,
joined, post, p. 558.
Roman Martinez argued the cause for petitioner. With
him on the briefs were Sarang Vijay Damle, Elana Night-
ingale Dawson, Cherish A. Drain, Andrew Gass, Joseph R.
Wetzel, and Samir Deger-Sen.
Lisa S. Blatt argued the cause for respondents. With her
on the brief were Thomas G. Hentoff and Sarah M. Harris.
Yaira Dubin argued the cause for the United States as
amicus curiae urging affrmance. With her on the brief
were Solicitor General Prelogar, Principal Deputy Assist-
ant Attorney General Boynton, Deputy Solicitor General
Stewart, Daniel Tenny, Suzanne V. Wilson, Mark T. Gray,
Jordana S. Rubel, Nicholas R. Bartelt, and Shireen Nasir.*
*Briefs of amici curiae urging reversal were fled for Artists by Brian
M. Willen; for Art Law Professors by Mark A. Lemley, pro se, and Joseph
C. Gratz; for the Authors Alliance by Erik Stallman and Pamela Samuel-
son; for Documentary Filmmakers by Caren Decter and Edward H. Rosen-
514 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
Opinion of the Court
Justice Sotomayor delivered the opinion of the Court.
This copyright case involves not one, but two artists. The
frst, Andy Warhol, is well known. His images of products
thal; for the Electronic Frontier Foundation et al. by Corynne
McSherry; for Floor64, Inc., by Cather ine R. Gellis; for the Robert
Rauschenberg Foundation et al. by Jaime A. Santos, Andrew Kim, and
Jeffrey P. Cunard; and for the Royal Manticoran Navy: The Offcial Honor
Harrington Fan Association, Inc., by J. Remy Green. A brief of amici
curiae urging vacatur was fled for the Library Futures Institute et al. by
Kyle K. Courtney and Brandon Butler.
Briefs of amici curiae urging affrmance were fled for the American
Society of Media Photographers, Inc., et al. by Thomas B. Maddrey,
Mickey H. Osterreicher, and Stephen M. Doniger; for the Association of
American Publishers by Dale Cendali and Joshua L. Simmons; for the
California Society of Entertainment Lawyers et al. by Scott Alan Bur-
roughs and Steven T. Lowe; for the Committee for Justice by John M.
Reeves and Curt Levey; for Dr. Seuss Enterprises, L. P., by Stanley J.
Panikowski; for the Graphic Artists Guild, Inc., et al. by Linda Joy Katt-
winkel and James Lorin Silverberg; for the Institute for Intellectual Prop-
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erty and Social Justice et al. by Melanie L. Bostwick; for the Phoenix
Center for Advanced Legal & Economic Public Policy Studies by Lawrence
J. Spiwak; for the Recording Industry Association of America et al. by
Frank P. Scibilia, Donald S. Zakarin, and Benjamin S. Akley; for the
Screen Actors Guild-American Federation of Television and Radio Artists
by Danielle S. Van Lier; for Gary Bernstein et al. by David Leichtman;
for Sen. Marsha Blackburn by Thomas M. Johnson, Jr., and Krystal B.
Swendsboe; for Terry Kogan by Gregory Dubinsky; for Philippa S. Loen-
gard by Nicholas M. O'Donnell and Erika L. Todd; for Peter S. Menell
et al. by Mr. Menell, pro se; for Zvi S. Rosen by Mr. Rosen, pro se; and
for Jeffrey Sedlik by Matthew Hersh.
Briefs of amici curiae were fled for the American Intellectual Property
Law Association by Lauren B. Emerson, Stefanie M. Garibyan, and Pat-
rick J. Coyne; for the Art Institute of Chicago et al. by Simon J. Frankel;
for the Authors Guild, Inc., et al. by Eleanor M. Lackman, Robert
Rotstein, Eric J. Schwartz, and J. Matthew Williams; for the Copyright
Alliance by Susan J. Kohlmann; for Copyright Law Professors by Rebecca
Tushnet, pro se; for the Digital Media Licensing Association by Naomi
Jane Gray; for the Motion Picture Association, Inc., by Donald B. Verrilli,
Jr., and Virginia Grace Davis; for the New York Intellectual Property
Law Association by Mark A. Baghdassarian, Irena Royzman, Robert J.
Rando, Mitchell Stein, Charles R. Macedo, and David P. Goldberg; for
Cite as: 598 U. S. 508 (2023) 515
Opinion of the Court
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 Na-
tional Portrait Gallery and the Museum of Modern Art. She
captured some of the 20th century's greatest rock stars: Bob
Dylan, Mick Jagger, Patti Smith, Bruce Springsteen, and, as
relevant here, Prince.
In 1984, Vanity Fair sought to license one of Goldsmith's
Prince photographs for use as an “artist reference.” The
magazine wanted the photograph to help illustrate a story
about the musician. Goldsmith agreed, on the condition that
the use of her photo be for “one time” only. 1 App. 85. The
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artist Vanity Fair hired was Andy Warhol. Warhol made a
silkscreen using Goldsmith's photo, and Vanity Fair pub-
lished the resulting image alongside an article about Prince.
The magazine credited Goldsmith for the “source photo-
graph,” 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
Richard Meyer by Jonathan Y. Ellis; and for Guy A. Rub by Katherine
C. Ferguson and Mr. Rub, pro se.
516 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
Opinion of the Court
sole question presented is whether the frst fair use factor,
“the purpose and character of the use, including whether
such use is of a commercial nature or is for nonproft educa-
tional 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 frst 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 frst 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,
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Goldsmith “had few female peers.” Ibid. But she was a
self-starter. She quickly became “a leading rock photogra-
pher” in an era “when women on the scene were largely dis-
missed 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. News-
week agreed, and Goldsmith took photos of Prince in concert
at the Palladium in New York City and in her studio on West
36th Street. Newsweek ran one of the concert photos,
together with an article titled “ ``The Naughty Prince of
Rock.' ” Id., at 320. Goldsmith retained the other photos.
She holds copyright in all of them.
One of Goldsmith's studio photographs, a black and white
portrait of Prince, is the original copyrighted work at issue
in this case. See fg. 1, infra.
In 1984, Goldsmith, through her agency, licensed that pho-
tograph to Vanity Fair to serve as an “artist reference for an
illustration” in the magazine. 1 App. 85. The terms of the
Cite as: 598 U. S. 508 (2023) 517
Opinion of the Court
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Figure 1. A black and white portrait photograph of Prince
taken in 1981 by Lynn Goldsmith.
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 fgure in American
art, known among other things for his silkscreen portraits of
celebrities.1 From Goldsmith's photograph, Warhol created
1
A silkscreen is a fne 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 “fatten” 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,
518 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
Opinion of the Court
a silkscreen portrait of Prince, which appeared alongside an
article about Prince in the November 1984 issue of Vanity
Fair. See fg. 2, infra. The article, titled “Purple Fame,” is
primarily about the “sexual style” of the new celebrity and
his music. Vanity Fair, Nov. 1984, p. 66. Goldsmith re-
ceived her $400 fee, and Vanity Fair credited her for the
“source photograph.” 2 App. 323, 325–326. Warhol re-
ceived an unspecifed 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 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
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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.
Warhol “would then place the screen face down on the canvas, pour ink
onto the back of the mesh, and use a squeegee to pull the ink through the
weave and onto the canvas.” Ibid. The resulting “high-contrast half-
tone impressions” served as an “ ``under-drawing,' ” over which Warhol
painted colors by hand. Id., at 165.
Cite as: 598 U. S. 508 (2023) 519
Opinion of the Court
Prince”) on the cover of a magazine published by Vanity
Fair's parent company, Condé Nast. See fg. 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
copyright in them. It has licensed images of the works for
commercial and editorial uses. In particular, after Prince
died in 2016, Condé Nast contacted AWF about the possibil-
ity 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
Prince instead. The magazine, titled “The Genius of
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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.
2
AWF sold 12 of the works to collectors and galleries, and it transferred
custody of the remaining four works to the Andy Warhol Museum in
Pittsburgh.
520 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
Opinion of the Court
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 Mu-
sician magazines. See, e. g., fg. 4, infra.
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
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Figure 4. One of Lynn Goldsmith's photographs of Prince
on the cover of Musician magazine.
Cite as: 598 U. S. 508 (2023) 521
Opinion of the Court
Stone and Time, also released special editions. See fg. 5,
infra. All of them depicted Prince on the cover. All of
them used a copyrighted photograph in service of that ob-
ject. 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.
522 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
Opinion of the Court
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, fattens, traces, and colors the photo
but otherwise does not alter it. See fg. 6, infra.
Goldsmith notifed AWF of her belief that it had in-
fringed her copyright. AWF then sued Goldsmith and her
agency for a declaratory judgment of noninfringement or,
in the alternative, fair use. Goldsmith counterclaimed for
infringement.
The District Court granted summary judgment for AWF.
382 F. Supp. 3d 312, 316 (SDNY 2019). The court considered
the four fair use factors enumerated in 17 U. S. C. § 107 and
held that the Prince Series works made fair use of Gold-
smith's photograph. As to the frst 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
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aesthetics with creative and communicative results distinct
from Goldsmith's.” 382 F. Supp. 3d, at 325–326 (internal
Figure 6. Warhol's orange silkscreen portrait of Prince superimposed
on Goldsmith's portrait photograph.
Cite as: 598 U. S. 508 (2023) 523
Opinion of the Court
quotation marks and alterations omitted). In particular, the
works “can reasonably be perceived to have transformed
Prince from a vulnerable, uncomfortable person to an iconic,
larger-than-life fgure,” such that “each Prince Series work
is immediately recognizable as a ``Warhol' rather than as a
photograph of Prince.” Id., at 326. Although the second
factor, the nature of Goldsmith's copyrighted work (creative
and unpublished), “would ordinarily weigh in [her] favor . . . ,
this factor [was] of limited importance because the Prince
Series works are transformative.” Id., at 327. The third
factor, the amount and substantiality of the portion used in
relation to the copyrighted work, favored AWF because, ac-
cording to the District Court, “Warhol removed nearly all
the photograph's protectible elements in creating the Prince
Series.” Id., at 330. Finally, the fourth factor likewise fa-
vored AWF because “the Prince Series works are not mar-
ket substitutes that have harmed—or have the potential to
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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 frst 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 quota-
tion marks omitted). Such “transformative purpose and
character must, at bare minimum, comprise something more
than the imposition of another artist's style on the primary
work.” Ibid. Here, however, “the overarching purpose
and function of the two works at issue . . . is identical, not
merely in the broad sense that they are created as works
of visual art, but also in the narrow but essential sense
that they are portraits of the same person.” Ibid. (footnote
524 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
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Opinion of the Court
omitted). The Court of Appeals also rejected the District
Court's logic that “ ``each Prince Series work' ” is transfor-
mative because it “ ``is immediately recognizable as a “War-
hol,” ' ” which the Court of Appeals believed would “create a
celebrity-plagiarist privilege.” Id., at 43; see also ibid.
(“[T]he fact that Martin Scorsese's recent flm The Irishman
is recognizably ``a Scorsese' does not absolve him of the obli-
gation 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 pho-
tograph favored her, id., at 45; that the amount and substan-
tiality of the portion taken (here, “the ``essence' ” of the pho-
tograph) was not reasonable in relation to the purpose of
the use, id., at 45–47; and that AWF's commercial licensing
encroached on Goldsmith's protected market to license her
photograph “to publications for editorial purposes and to
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other artists to create derivative works,” id., at 48–51.3 The
court noted that there was “no material dispute that both
Goldsmith and AWF have sought to license (and indeed have
successfully licensed) their respective depictions of Prince to
popular print magazines to accompany articles about him.”
Id., at 49 (footnote omitted).
Finally, although the District Court had not reached the
issue, the Court of Appeals rejected AWF's argument that
the Prince Series works were not substantially similar to
Goldsmith's photograph. See id., at 52–54.
3
The Court of Appeals considered not only the possibility of market
harm caused by the actions of AWF but also “whether ``unrestricted and
widespread conduct of the sort engaged in by [AWF] would result in a
substantially adverse impact on the potential market' ” for the photograph,
including the market for derivative works. 11 F. 4th 26, 49–50 (CA2 2021)
(quoting Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569, 590 (1994));
see also Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S.
539, 568 (1985).
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Opinion of the Court
Judge Jacobs concurred. He stressed that the Court of
Appeals' holding “d[id] not consider, let alone decide,
whether the infringement here encumbers the original
Prince Series works.” Id., at 54. Instead, “the only use at
issue” was “the Foundation's commercial licensing” of 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 sub-
stantially 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 frst factor, “the purpose and
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character of the use, including whether such use is of a com-
mercial nature or is for nonproft educational purposes,”
§ 107(1), weighs in Goldsmith's favor. AWF contends that
the Prince Series works are “transformative,” and that the
frst factor therefore weighs in its favor, because the works
convey a different meaning or message than the photograph.
Brief for Petitioner 33. The Court of Appeals erred, accord-
ing to AWF, by not considering that new expression. Id.,
at 47–48.
But the frst 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 rele-
vant to whether a copying use has a suffciently distinct pur-
pose or character, it is not, without more, dispositive of the
frst factor.
526 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
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Opinion of the Court
Here, the specifc use of Goldsmith's photograph alleged to
infringe her copyright is AWF's licensing of Orange Prince
to Condé Nast. As portraits of Prince used to depict Prince
in magazine stories about Prince, the original photograph
and AWF's copying use of it share substantially the same
purpose. Moreover, the copying use is of a commercial na-
ture. 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 frst 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
Page Proof Pending Publication
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 deriva-
tive works, and, in the case of pictorial or graphic works, to
display the copyrighted work publicly. 17 U. S. C. § 106.
The Act, however, “refects a balance of competing claims
upon the public interest: Creative work is to be encouraged
and rewarded, but private motivation must ultimately serve
the cause of promoting broad public availability of literature,
music, and the other arts.” Twentieth Century Music Corp.
v. Aiken, 422 U. S. 151, 156 (1975). Copyright thus trades
off the benefts of incentives to create against the costs of
restrictions on copying. The Act, for example, limits the du-
ration of copyright, §§ 302–305, as required by the Constitu-
tion; makes facts and ideas uncopyrightable, § 102; and limits
the scope of copyright owners' exclusive rights, §§ 107–122.
This balancing act between creativity and availability (in-
cluding for use in new works) is refected in one such limita-
Cite as: 598 U. S. 508 (2023) 527
Opinion of the Court
tion, the defense of “fair use.” In 1976, Congress codifed
the common-law doctrine of fair use in § 107, which provides:
“[T]he fair use of a copyrighted work, . . . for purposes such
as criticism, comment, news reporting, teaching . . . , scholar-
ship, or research, is not an infringement of copyright.” 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 non-
proft 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
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stife 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 circum-
stances.” Google LLC v. Oracle America, Inc., 593 U. S.
–––, ––– (2021). Because those principles apply across a
wide range of copyrightable material, from books to photo-
graphs to software, fair use is a “fexible” concept, and “its
application may well vary depending upon context.” Id.,at –––. For example, in applying the fair use provision,
“copyright's protection may be stronger where the copy-
righted material . . . serves an artistic rather than a utilitar-
ian function.” Ibid.1
The frst fair use factor is “the purpose and character of
the use, including whether such use is of a commercial nature
or is for nonproft educational purposes.” § 107(1). This
528 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
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 frst 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 refect “the sorts of
copying that courts and Congress most commonly ha[ve]
Page Proof Pending Publication
found to be fair uses,” and so may guide the frst 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 mat-
ter of degree. Most copying has some further purpose, in
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).
Cite as: 598 U. S. 508 (2023) 529
Opinion of the Court
the sense that copying is socially useful ex post. Many sec-
ondary works add something new. That alone does not ren-
der such uses fair. Rather, the frst 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 frst factor
weighs in favor of fair use. The smaller the difference, the
less likely.
A use that has a further purpose or different character is
said to be “ ``transformative.' ” Ibid. (quoting P. Leval, 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 defnes derivative works, which the copyright
owner has “the exclusive righ[t]” to prepare, § 106(2), to in-
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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 char-
acter, 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 transfor-
mation of a work. In practice, however, the two may overlap. Compare,
e. g., Núñez v. Caribbean Int'l News Corp., 235 F. 3d 18, 21–23 (CA1 2000)
(newspaper's reproduction, without alteration, of photograph of beauty
530 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
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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 transforma-
tive value” because “it can provide social beneft, by shed-
ding light on an earlier work, and, in the process, creating a
new one.” Id., at 579. The use at issue in Campbell was 2
Live Crew's copying of certain lyrics and musical elements
from Roy Orbison's song, “Oh, Pretty Woman,” to create a
rap derivative titled “Pretty Woman.” Without a doubt, 2
Live Crew transformed Orbison's song by adding new lyrics
and musical elements, such that “Pretty Woman” had a new
message and different aesthetic than “Oh, Pretty Woman.”
Indeed, the whole genre of music changed from rock ballad
to rap. That was not enough for the frst factor to weigh in
favor of fair use, however. The Court found it necessary to
determine whether 2 Live Crew's transformation of Orbi-
son's song rose to the level of parody, a distinct purpose of
commenting on the original or criticizing it. See id., at
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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 justifcation for the very act of borrowing.” Id., at
580–581. More generally, when “commentary has no critical
bearing on the substance or style of the original composition,
. . . the claim to fairness in borrowing from another's work
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) (flm advertisement's alteration of well-known photograph
by superimposing actor's face on actress' body had transformative purpose
of parody).
Cite as: 598 U. S. 508 (2023) 531
Opinion of the Court
diminishes accordingly (if it does not vanish), and other fac-
tors, like the extent of its commerciality, loom larger.” Id.,
at 580; see also id., at 597 (Kennedy, J., concurring).
This discussion illustrates two important points: First, the
fact that a use is commercial as opposed to nonproft is an
additional “element of the frst factor.” Id., at 584. The
commercial nature of the use is not dispositive. Ibid.;
Google, 593 U. S., at –––. 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 signifcance of other factors, like
commercialism, that may weigh against a fnding of fair
use”); see also id., at 580, 585.6
Second, the frst factor also relates to the justifcation for
the use. In a broad sense, a use that has a distinct purpose
is justifed because it furthers the goal of copyright, namely,
to promote the progress of science and the arts, without
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diminishing the incentive to create. See id., at 579; Au-
thors Guild v. Google, Inc., 804 F. 3d 202, 214 (CA2 2015)
(Leval, J.) (“The more the appropriator is using the copied
material for new, transformative purposes, the more it
serves copyright's goal of enriching public knowledge and
the less likely it is that the appropriation will serve as a
substitute for the original or its plausible derivatives, shrink-
ing the protected market opportunities of the copyrighted
work”). A use that shares the purpose of a copyrighted
work, by contrast, is more likely to provide “the public with
a substantial substitute for matter protected by the [copy-
6
The authors of the Copyright Act of 1976 included the language,
“ ``whether such use is of a commercial nature or is for non-proft educa-
tional purposes,' ” in the frst fair use factor “to state explicitly” that,
“as under the present law, the commercial or non-proft character of
an activity, while not conclusive with respect to fair use, can and should
be weighed along with other factors.” H. R. Rep. No. 94–1476, p. 66
(1976).
532 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
Opinion of the Court
right 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 justifed 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 original
work may have compelling reason to “ ``conjure up' ” the orig-
inal by borrowing from it. Id., at 588.7 An independent
justifcation like this is particularly relevant to assessing fair
use where an original work and copying use share the same
or highly similar purposes, or where wide dissemination of a
secondary work would otherwise run the risk of substitution
for the original or licensed derivatives of it. See id., at 580,
n. 14; Harper & Row, 471 U. S., at 557. Once again, the
question of justifcation is one of degree. See Leval 1111
(“[I]t is not suffcient simply to conclude whether or not justi-
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fcation exists. The question remains how powerful, or per-
suasive, is the justifcation, because the court must weigh the
strength of the secondary user's justifcation against factors
favoring the copyright owner”).
In sum, the frst fair use factor considers whether the use
of a copyrighted work has a further purpose or different
character, which is a matter of degree, and the degree of
difference must be balanced against the commercial nature
of the use. If an original work and a secondary use share
the same or highly similar purposes, and the secondary use
7
Return to the example of a book review. The review's use of quoted
material may be justifed in both the broad and the narrower senses.
First, the use is likely to serve a different purpose than the material itself.
See n. 4, supra. Second, there may be compelling reason to borrow from
the original to achieve that purpose because the review targets the mate-
rial for comment or criticism. But again, the question of justifcation will
depend on the individual use or uses. See Patry, Fair Use § 3:1, at 129–
130. Even book reviews are not entitled to a presumption of fairness.
Campbell, 510 U. S., at 581.
Cite as: 598 U. S. 508 (2023) 533
Opinion of the Court
is of a commercial nature, the frst factor is likely to weigh
against fair use, absent some other justifcation for copying.8
2
The fair use provision, and the frst factor in particular,
requires an analysis of the specifc “use” of a copyrighted
work that is alleged to be “an infringement.” § 107. The
same copying may be fair when used for one purpose but not
another. See Campbell, 510 U. S., at 585 (contrasting the
use of a copyrighted work “to advertise a product, even in a
parody,” with “the sale of a parody for its own sake, let alone
one performed a single time by students in school”); Sony
Corp. of America v. Universal City Studios, Inc., 464 U. S.
417, 449–451 (1984) (contrasting the recording of TV “for a
commercial or proft-making purpose” with “private home
use”).
Here, Goldsmith's copyrighted photograph has been used
in multiple ways: After Goldsmith licensed the photograph
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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 pho-
8
Consider, for example, this Court's analysis of the frst 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 diff-
cult to apply traditional copyright concepts in that technological world.”
Id., at –––. Still, in evaluating the purpose and character of Google's use
of Sun Microsystems' code, the Court looked, frst, to whether the purpose
of the use was signifcantly different from that of the original; and, second,
to the strength of other justifcations 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 –––. 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 justifed in that context because “shared interfaces
are necessary for different programs to speak to each other” and because
“reimplementation of interfaces is necessary if programmers are to be able
to use their acquired skills.” Ibid.; see also id., at –––.
534 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
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Opinion of the Court
tograph, pursuant to the license, when it published Warhol's
illustration in 1984. Finally, AWF used the photograph
when it licensed an image of Warhol's Orange Prince to
Condé Nast in 2016. Only that last use, however, AWF's
commercial licensing of Orange Prince to Condé Nast, is al-
leged to be infringing.9 We limit our analysis accordingly.
In particular, the Court expresses no opinion as to the cre-
ation, display, or sale of any of the original Prince Series
works.10
A typical use of a celebrity photograph is to accompany
stories about the celebrity, often in magazines. For 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 516–520. She even li-
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
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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 Velázquez's
painting, had American copyright law applied in Europe with a term
of 300 years post mortem auctoris. But cf. post, at 589–591 (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 dis-
sent assumes that any and all uses of an original work entail the same
frst-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 533. Had AWF's use been solely for teaching purposes, that
clearly would affect the analysis, and the statute permits no other conclu-
sion. Preferring not to focus on the specifc use alleged to infringe Gold-
smith's copyright, the dissent begins with a sleight of hand, see post, at
558, n. 1, and continues with a false equivalence between AWF's commer-
cial licensing and Warhol's original creation. The result is a series of mis-
statements and exaggerations, from the dissent's very frst sentence, post,
at 558 (“Today, the Court declares that Andy Warhol's eye-popping silk-
screen of Prince . . . is (in copyright lingo) not ``transformative' ”), to
its very last, post, at 593 (“[The majority opinion] will make our world
poorer”).
Cite as: 598 U. S. 508 (2023) 535
Opinion of the Court
censed her photographs for that purpose after Prince died in
2016. Supra, at 520. A photographer may also license her
creative work to serve as a reference for an artist, like Gold-
smith 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 intro-
duced “uncontroverted” evidence “that photographers gener-
ally license others to create stylized derivatives of their work
in the vein of the Prince Series.” 11 F. 4th, at 50; see 2 App.
291–299. In fact, Warhol himself paid to license photographs
for some of his artistic renditions. Such licenses, for photo-
graphs or derivatives of them, are how photographers like
Goldsmith make a living. They provide an economic incen-
tive to create original works, which is the goal of copyright.
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
Page Proof Pending Publication
Nelson, 1958–2016.” It is undisputed here that the edition
is “devoted to Prince.” Id., at 352. In addition to AWF's
image on the cover, the magazine contains numerous concert
and studio photographs of Prince. In that context, the pur-
pose of the image is substantially the same as that of Gold-
smith's photograph. Both are portraits of Prince used in
magazines to illustrate stories about Prince.11 Such “envi-
11
The Court of Appeals observed that the “purpose and function of the
two works at issue here is identical, not merely in the broad sense that
they are created as works of visual art, but also in the narrow but essential
sense that they are portraits of the same person.” 11 F. 4th, at 42 (foot-
note omitted). This Court goes somewhat “further and examine[s] the
copying's more specifcally described ``purpose[s]' ” in the context of the
particular use at issue (here, in a magazine about Prince). Google, 593
U. S., at –––. The Court does not defne the purpose as simply “commer-
cial” or “commercial licensing.” Post, at 575, 577, n. 7, 582, n. 8 (Kagan,
J., dissenting). Nor does the Court view Goldsmith's photograph and
Warhol's illustration as “fungible products in the magazine market.”
Post, at 575; see post, at 566–567. Rather, the Court fnds signifcant the
536 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
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Opinion of the Court
ronment[s]” are not “distinct and different.” Google, 593
U. S., at –––. 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
degree of similarity between the specifc purposes of the original work
and the secondary use at issue.
According to the dissent, the fact that a magazine editor might prefer
one image to the other must mean the secondary use is transformative,
either because it has a different aesthetic or conveys a different message.
Ibid.. The Court, because it fails to understand the difference, does not
have “much of a future in magazine publishing,” the dissent chides. Post,
at 567. While the dissent is probably correct about the Court's business
prospects, the editors of People, Rolling Stone, and Time chose a vari-
ety of different photos of Prince for their memorial issues. See fg. 5,
supra. Portrait photos, in fact. Some black and white; some depicting
Prince's “ ``corporeality' ”; some “realistic” or “humanistic.” Post, at 566,
573 (Kagan, J., dissenting). These variations in aesthetics did not stop
the photos from serving the same essential purpose of depicting Prince in
Page Proof Pending Publication
a magazine commemorating his life and career.
Fortunately, the dissent's “magazine editor” test does not have much of
a future in fair use doctrine. The faw in the dissent's logic is simple: If
all that mattered under the frst 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 567, then every derivative work would qualify.
The New Yorker might prefer an unauthorized sequel to a short story,
rather than the original, but that does not mean the purpose and character
of the use would weigh in its favor. Similarly, a rap label might prefer 2
Live Crew's song, rather than Orbison's original, based on the new sound
and lyrics (i. e., new aesthetic and message), but that was not enough in
Campbell, and it is not enough here.
12
In this way, the frst 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
frst 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
Cite as: 598 U. S. 508 (2023) 537
Opinion of the Court
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 fnding of fair use.”
Harper & Row, 471 U. S., at 562.13
Taken together, these two elements—that Goldsmith's
photograph and AWF's 2016 licensing of Orange Prince share
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 frst and fourth fair use fac-
tors. Under today's decision, as before, the frst factor does not ask
whether a secondary use causes a copyright owner economic harm. Cf.
post, at 578 (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.,
Page Proof Pending Publication
at 591. This relationship should be fairly obvious. But see post, at 578–
579 (Kagan, J., dissenting) (suggesting that the frst 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 ful-
fll demand for an original work. The frst factor may still favor the copy-
ist, 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 frst.
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 frst-factor in-
quiry “should disregard Warhol's creative contributions because he li-
censed his work”; or that an artist may not “market even a transformative
follow-on work.” Post, at 560, 576, 591 (opinion of Kagan, J.). Instead,
consistent with the statute, “whether [a] use is of a commercial nature or
is for nonproft educational purposes” is one element of the frst 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 other-
wise justifed. Supra, at 531 (citing Campbell, 510 U. S., at 579–580, 585);
see also supra, at 525, 532–533, and n. 8, 537–538; infra, at 546–547.
538 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
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substantially the same purpose, and that AWF's use of Gold-
smith's photo was of a commercial nature—counsel against
fair use, absent some other justifcation for copying. That
is, although a use's transformativeness may outweigh its
commercial character, here, both elements point in the
same direction.14
The foregoing does not mean, however, that derivative
works borrowing heavily from an original cannot be fair
uses. In Google, the Court suggested that “[a]n ``artistic
painting' might, for example, fall within the scope of fair
use even though it precisely replicates a copyrighted ``adver-
tising logo to make a comment about consumerism.' ” 593
U. S., at ––– – ––– (quoting 4 M. Nimmer & D. Nimmer, Copy-
right § 13.05[A][1][b] (2019), in turn quoting N. Netanel, Mak-
ing Sense of Fair Use, 15 Lewis & Clark L. Rev. 715, 746
(2011) (some internal quotation marks omitted)). That sug-
gestion refers to Warhol's works that incorporate advertising
logos, such as the Campbell's Soup Cans series. See fg. 7,
Page Proof Pending Publication
infra.
14
The dissent contends that the Court gives “little role” to “the key
term ``character.' ” Post, at 576 (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 nonproft charac-
ter 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 dis-
sent looks up the word “character” in a dictionary. See post, at 570. But
the dissent's preferred defnition—“a thing's ``main or essential nature[,]
esp[ecially] as strongly marked and serving to distinguish,' ” post, at 576
(quoting Webster's Third New International Dictionary 376 (1976))—helps
Goldsmith, not AWF. Even this defnition does not support the implica-
tion that “character” is determined by any aesthetic distinctiveness, such
as the addition of any new expression. Instead, it is the “main or essen-
tial nature” that must be “strongly marked and serv[e] to distinguish.”
So return to Orange Prince on the cover of the Condé Nast issue commem-
orating Prince, see fg. 5, supra, and ask, what is the main or essential na-
ture of the secondary use of Goldsmith's photograph in that context?
Cite as: 598 U. S. 508 (2023) 539
Opinion of the Court
Figure 7. A print based on the Campbell's soup can, one of
Warhol's works that replicates a copyrighted advertising logo.
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Yet not all of Warhol's works, nor all uses of them, give
rise to the same fair use analysis. In fact, Soup Cans well
illustrates the distinction drawn here. The purpose of
Campbell's logo is to advertise soup. Warhol's canvases do
not share that purpose. Rather, the Soup Cans series uses
Campbell's copyrighted work for an artistic commentary on
consumerism, a purpose that is orthogonal to advertising
soup. The use therefore does not supersede the objects of
the advertising logo.15
Moreover, a further justifcation for Warhol's use of Camp-
bell's logo is apparent. His Soup Cans series targets the
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.
540 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
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Opinion of the Court
logo. That is, the original copyrighted work is, at least in
part, the object of Warhol's commentary. It is the very na-
ture of Campbell's copyrighted logo—well known to the pub-
lic, designed to be reproduced, and a symbol of an everyday
item for mass consumption—that enables the commentary.
Hence, the use of the copyrighted work not only serves a
completely different purpose, to comment on consumerism
rather than to advertise soup, it also “conjures up” the ori-
ginal work to “she[d] light” on the work itself, not just
the subject of the work. Campbell, 510 U. S., at 579, 588.16
Here, by contrast, AWF's use of Goldsmith's photograph does
not target the photograph, nor has AWF offered another
compelling justifcation for the use. See infra, at 546–548,
and nn. 20–21.
B
AWF contends, however, that the purpose and character
of its use of Goldsmith's photograph weighs in favor of fair
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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 fgure.” 382 F. Supp. 3d, at 326. AWF
also asserts that the works are a comment on celebrity.
In particular, “Warhol's Prince Series conveys the dehu-
manizing nature of celebrity.” Brief for Petitioner 44.
According to AWF, that new meaning or message, which
the Court of Appeals ignored, makes the use “transfor-
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 572 (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.
Cite as: 598 U. S. 508 (2023) 541
Opinion of the Court
mative” 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 frst [work] with new expression, meaning, or
message.” 510 U. S., at 579; see also Google, 593 U. S., at
–––. That description paraphrased Judge Leval's law re-
view article, which referred to “new information, new aes-
thetics, new insights and understandings.” Leval 1111.
(Judge Leval contrasted such additions with secondary uses
that “merely repackag[e]” the original. Ibid.) But Camp-
bell 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, flm
and stage adaptions, sequels, spinoffs, and others that “re-
Page Proof Pending Publication
cast, transfor[m] or adap[t]” the original, § 101, add new ex-
pression, meaning, or message, or provide new information,
new aesthetics, new insights and understandings. That is
an intractable problem for AWF's interpretation of trans-
formative use. The frst fair use factor would not weigh in
favor of a commercial remix of Prince's “Purple Rain” just
because the remix added new expression or had a different
aesthetic. A flm or musical adaptation, like that of Alice
Walker's The Color Purple, might win awards for its “sig-
nifcant creative contribution”; alter the meaning of a classic
novel; and add “important new expression,” such as images,
performances, original music, and lyrics. Post, at 567, 580
(Kagan, J., dissenting) (internal quotation marks omitted).
But that does not in itself dispense with the need for
licensing.17
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-flm adaptations. Post, at 569, n. 5. This idea appears to
come from a Hail Mary lobbed by AWF when it got caught in the same
542 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
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Opinion of the Court
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 original
or criticizing it.” 510 U. S., at 583. Parody is, of course, a
kind of message. Moreover, the Court considered what the
words of the songs might have meant to determine whether
parody “reasonably could be perceived.” Ibid. But new
meaning or message was not suffcient. If it had been, the
Court could have made quick work of the frst 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 “cen-
tral” question under the frst factor. Id., at 579.
The dissent commits the same interpretive error as AWF:
It focuses on Campbell's paraphrase, yet ignores the rest of
that decision's careful reasoning. Indeed, upon reading the
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dissent, someone might be surprised to learn that Campbell
was about parody at all. Had expert testimony confrmed
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
571–574 (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 the purposes of copyright law,” the Court explained,
“the heart of any parodist's claim to quote from existing ma-
bind. See Tr. of Oral Arg. 15–16. The Court is aware of no authority
for the proposition that the frst factor favors such uses (on the dissent's
view, the frst factor must, because the use modifes 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 flm of an author's book may . . . mean potential or presumed
losses to the copyright owner,” did not hold as much. 593 U. S., at –––;
see id., at ––– – –––, ––– – –––.
Cite as: 598 U. S. 508 (2023) 543
Opinion of the Court
terial . . . is the use of some elements of a prior author's
composition to create a new one that, at least in part, com-
ments on that author's works.” 510 U. S., at 580. Campbell
thus drew a nuanced distinction between parody and satire:
While parody cannot function unless it conjures up the origi-
nal, “satire can stand on its own two feet and so requires
justifcation for . . . borrowing.” Id., at 580–581. The ob-
jective meaning or message of 2 Live Crew's song was rele-
vant to this inquiry into the reasons for copying, but any
“new expression, meaning, or message” was not the test.18
What role meaning or message played in the Court of Ap-
peals' analysis here is not entirely clear. The court cor-
rectly rejected the idea “that any secondary work that adds
a new aesthetic or new expression to its source material is
necessarily transformative.” 11 F. 4th, at 38–39. It also
appeared correctly to accept that meaning or message is rel-
evant to, but not dispositive of, purpose. See id., at 41
(“[T]he secondary work itself must reasonably be perceived
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as embodying a distinct artistic purpose, one that conveys a
new meaning or message separate from its source material”);
id., at 42 (“[T]he judge must examine whether the secondary
work's use of its source material is in service of a funda-
mentally different and new artistic purpose and character,
[which] must, at a bare minimum, comprise something more
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 559 (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 –––; see also n. 8, supra. In
other words, the same concepts of use and justifcation that the Court
relied on in Google are the ones that it applies today.
544 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
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Opinion of the Court
than the imposition of another artist's style on the primary
work . . . ” (internal quotation marks omitted)).
Elsewhere, however, the Court of Appeals stated that “the
district judge should not assume the role of art critic and
seek to ascertain the intent behind or meaning of the works
at issue.” Id., at 41. That statement is correct in part. A
court should not attempt to evaluate the artistic signifcance
of a particular work. See Bleistein v. Donaldson Litho-
graphing Co., 188 U. S. 239, 251 (1903) (Holmes, J.) (“It would
be a dangerous undertaking for persons trained only to the
law to constitute themselves fnal judges of the worth of [a
work], outside of the narrowest and most obvious limits”).19
Nor does the subjective intent of the user (or the subjective
interpretation of a court) determine the purpose of the use.
But the meaning of a secondary work, as reasonably can be
perceived, should be considered to the extent necessary to
determine whether the purpose of the use is distinct from
Page
19
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The dissent demonstrates the danger of this approach. On its view,
the frst fair use factor favors AWF's use of Goldsmith's photograph simply
because Warhol created worthy art. Goldsmith's original work, by con-
trast, is just an “old photo,” one of Warhol's “templates.” Post, at 559,
574 (opinion of Kagan, J.). In other words, the dissent (much like the
District Court) treats the frst 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
fgure 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 Criti-
cal History 287 (S. Madoff ed. 1997), with R. Hughes, The Shock of the
New 346–351 (2d ed. 1991). Whatever the contribution of Orange Prince,
Goldsmith's photograph is part of that contribution. A court need not,
indeed should not, assess the relative worth of two works to decide a
claim of fair use. Otherwise, “some works of genius would be sure to miss
appreciation,” and, “[a]t the other end, copyright would be denied to
[works] which appealed to a public less educated than the judge.”
Bleistein, 188 U. S., at 251–252 (Holmes, J.). That Goldsmith's photograph
“had [its] worth and [its] success is suffciently shown by the desire to
reproduce [it] without regard to [her] rights.” Id., at 252.
Cite as: 598 U. S. 508 (2023) 545
Opinion of the Court
the original, for instance, because the use comments on, criti-
cizes, or provides otherwise unavailable information about
the original, see, e. g., Authors Guild, 804 F. 3d, at 215–216.
2
The District Court determined that “[t]he Prince Series
works can reasonably be perceived to have transformed
Prince from a vulnerable, uncomfortable person to an iconic,
larger-than-life fgure.” 382 F. Supp. 3d, at 326. To make
that determination, the District Court relied, in part, on tes-
timony by Goldsmith that her photographs of Prince show
that he “is ``not a comfortable person' and that he is ``a vulner-
able human being.' ” Ibid. An expert on Warhol, mean-
while, testifed that the Prince Series works depict “Prince
as a kind of icon or totem of something,” a “mask-like simula-
crum of his actual existence.” 1 App. 249, 257.
The Court of Appeals noted, correctly, that “whether a
Page Proof Pending Publication
work is transformative cannot turn merely on the stated or
perceived intent of the artist or the meaning or impression
that a critic—or for that matter, a judge—draws from the
work.” 11 F. 4th, at 41. “[O]therwise, the law may well
``recogniz[e] any alteration as transformative.' ” Ibid. (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 specifc
use at issue. The use is AWF's commercial licensing of
Orange Prince to appear on the cover of Condé Nast's special
commemorative edition. The purpose of that use is, still, to
illustrate a magazine about Prince with a portrait of Prince.
Although the purpose could be more specifcally described as
illustrating a magazine about Prince with a portrait of
546 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
Opinion of the Court
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
frst factor to favor AWF, given the specifc 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, reasonably
can be perceived as conveying several possible meanings.
The application of an artist's characteristic style to bring out
a particular meaning that was available in the photograph is
less likely to constitute a “further purpose” as Campbell used
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the term. 510 U. S., at 579.
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
Warhol's works, and particularly his uses of repeated images,
can be perceived as depicting celebrities as commodities.
But again, even if such commentary is perceptible on the
cover of Condé Nast's tribute to “Prince Rogers Nelson,
1958–2016,” on the occasion of the man's death, AWF has a
problem: The asserted commentary is at Campbell's lowest
ebb. Because it “has no critical bearing on” Goldsmith's
photograph,20 the commentary's “claim to fairness in borrow-
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 nei-
Cite as: 598 U. S. 508 (2023) 547
Opinion of the Court
ing from” her work “diminishes accordingly (if it does not
vanish).” 510 U. S., at 580.21 The commercial nature of the
use, on the other hand, “loom[s] larger.” Ibid.Here, the circumstances of AWF's 2016 licensing outweigh
its diminished claim to fairness in copying under the frst
factor. Like satire that does not target an original work,
AWF's asserted commentary “can stand on its own two feet
and so requires justifcation for the very act of borrowing.”
Id., at 581. Moreover, because AWF's commercial use of
Goldsmith's photograph to illustrate a magazine about Prince
is so similar to the photograph's typical use, a particularly
compelling justifcation is needed. Yet AWF offers no inde-
pendent justifcation, let alone a compelling one, for copying
the photograph, other than to convey a new meaning or mes-
sage. As explained, that alone is not enough for the frst
factor to favor fair use.
Copying might have been helpful to convey a new meaning
or message. It often is. But that does not suffce under
Page Proof Pending Publication
the frst factor. Nor does it distinguish AWF from a long
list of would-be fair users: a musician who fnds it helpful to
ther Warhol nor Vanity Fair selected the photograph, which was instead
provided by Goldsmith's agency.
21
The dissent wonders: Why does targeting matter? See post, at 580–
581 (opinion of Kagan, J.). The reason, as this opinion explains, is the frst
factor's attention to justifcation. Supra, at 530–533, and nn. 7–8, 542–543,
and n. 18 (citing Campbell, 510 U. S., at 580–581; Google, 593 U. S., at –––
). Compare, for example, a flm 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 antebel-
lum South. SunTrust Bank v. Houghton Miffin 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 affrmative defense, and AWF bears the burden to justify its taking
of Goldsmith's work with some reason other than, “I can make it better.”
548 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
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Opinion of the Court
sample another artist's song to make his own, a playwright
who fnds it helpful to adapt a novel, or a flmmaker who
would prefer to create a sequel or spinoff, to name just a
few.22 As Judge Leval has explained, “[a] secondary author
is not necessarily at liberty to make wholesale takings of the
original author's expression merely because of how well the
original author's expression would convey the secondary au-
thor's different message.” Authors Guild, 804 F. 3d, at 215.
3
The dissent would rather not debate these fner points.
See post, at 560, 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 justifed in using Goldsmith's original
work in this specifc instance. And no limiting principle for
its apparent position that any use that is creative prevails
under the frst fair use factor. Instead, the dissent makes
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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
568. So somewhere in the copyright statute, there must be
an “escape valve” to create something good. Ibid. If AWF
must pay Goldsmith to use her creation, the dissent claims,
this will “stife creativity of every sort,” “thwart the expres-
sion of new ideas and the attainment of new knowledge,” and
“make our world poorer.” Post, at 593.
22
The dissent oddly suggests that under the Court's opinion, the frst
fair use factor favors such uses. See post, at 569, n. 5. This ignores,
well, pretty much the entire opinion. See supra, at 527–530, 534–536, 539,
541–542, 545–546 (degree of difference in purpose and character); supra,
at 531, 537 (commercial nature); supra, at 530–532, 539–540, 542–543, 546–
548 ( justifcation). In particular, the Court does not hold that the frst
factor favors any user who “wants to reach different buyers, in different
markets, consuming different products.” Post, at 570, n. 5 (opinion of
Kagan, J.). The dissent apparently deduces this proposition from its in-
verse, which is a common logical fallacy.
Cite as: 598 U. S. 508 (2023) 549
Opinion of the Court
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 origi-
nal works in the frst place. Nor will the Court's decision,
which is consistent with longstanding principles of fair use,
snuff out the light of Western civilization, returning us to
the Dark Ages of a world without Titian, Shakespeare, or
Richard Rodgers. The dissent goes on at length about the
basic premise that copyright (like other forms of intellectual
property) involves a tradeoff between stimulating innovative
activity, on the one hand, and allowing follow-on innovation,
on the other. See post, at 567–569, and n. 4, 581–592. This
theme will be familiar to any student of copyright law. In
tracing the history of Renaissance painting, however, the dis-
sent loses sight of the statute and this Court's cases. The
Lives of the Artists undoubtedly makes for livelier reading
Page Proof Pending Publication
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 specifc
use alleged to be infringing. See n. 10, supra. It waves
away the statute's concern for derivative works. Supra, at
541, and n. 17. It fails to appreciate Campbell's nuance.
Supra, at 542–543, 546–547, and n. 21. And it disregards
this Court's repeated emphasis on justifcation. Supra, at
542–543, and n. 18, 547, 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 frst fair use factor weighs in its
favor—does not follow from its basic premise. Fair use in-
stead strikes a balance between original works and second-
ary uses based in part on objective indicia of the use's pur-
550 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
Opinion of the Court
pose and character, including whether the use is commercial
and, importantly, the reasons for copying.
Finally, copyright law is replete with escape valves: the
idea–expression distinction; the general rule that facts may
not receive protection; the requirement of originality; the
legal standard for actionable copying; the limited duration of
copyright; and, yes, the defense of fair use, including all its
factors, such as whether the amount taken is reasonable in
relation to the purpose of the use. These doctrines (and oth-
ers) 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 flm is any indication, the existing copyright law, of
which today's opinion is a continuation, is a powerful engine
of creativity.
III
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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 pre-
pare 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
suffciently distinct from the original. In this case, however,
Goldsmith's original photograph of Prince, and AWF's copy-
ing use of that photograph in an image licensed to a special
edition magazine devoted to Prince, share substantially the
same purpose, and the use is of a commercial nature. AWF
has offered no other persuasive justifcation for its unauthor-
ized use of the photograph. Therefore, the “purpose and
character of the use, including whether such use is of a com-
mercial nature or is for nonproft 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.
Cite as: 598 U. S. 508 (2023) 551
Opinion of the Court
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 frst factor likewise favors her, the judgment of the
Court of Appeals is
Affrmed.
Page Proof Pending Publication
552 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
Appendix to opinion of the Court
APPENDIX
Page Proof Pending Publication
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. 508 (2023) 553
Gorsuch, J., concurring
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 affrmative defense of “fair use” to a claim of copy-
right 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 producing
his work and the character of his resulting work. So what
matters in this case is that Andy Warhol intended to apply
a “ ``new aesthetic' ” to Lynn Goldsmith's photograph and the
character of his work “ ``transformed' ” Prince from the “ ``vul-
nerable, uncomfortable person' ” depicted in Ms. Goldsmith's
Page Proof Pending Publication
photograph into “ ``an iconic, larger-than-life fgure.' ” Ante,
at 523; post, at 564–567, 574–575 (Kagan, J., dissenting).
Because the purpose and character of Mr. Warhol's work is
so different from Ms. Goldsmith's, the Foundation insists, the
frst statutory factor points in favor of fnding a fair-use af-
frmative defense.
By contrast, on Ms. Goldsmith's reading of the law and
under the Second Circuit's approach, the frst fair-use factor
requires courts to assess the purpose and character of
the challenged use. Ante, at 533–534. The Foundation
now owns Mr. Warhol's image of Prince and it recently
sought to license that image to a magazine looking for a de-
piction of Prince to accompany an article about Prince.
Ibid. Ms. Goldsmith seeks to license her copyrighted photo-
graph to exactly these kinds of buyers. And because the
purpose and character of the Foundation's challenged use
and the purpose and character of her own protected use
overlap so completely, Ms. Goldsmith argues that the frst
554 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
Gorsuch, J., concurring
statutory factor does not support a fair-use affirmative
defense.
As I see it, the second view of the law is the better one.
Nothing in the copyright statute calls on judges to speculate
about the purpose an artist may have in mind when working
on a particular project. Nothing in the law requires judges
to try their hand at art criticism and assess the aesthetic
character of the resulting work. Instead, the frst statutory
fair-use factor instructs courts to focus on “the purpose and
character of the use, including whether such use is of a com-
mercial nature or is for nonproft 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 com-
paratively modest inquiry focused on how and for what rea-
Page Proof Pending Publication
son 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 confrm that this read-
ing 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
. . . , 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 “com-
ment” 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”
Cite as: 598 U. S. 508 (2023) 555
Gorsuch, J., concurring
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 558–559, 579–580, 591–593 (Kagan, J.,
dissenting). To hold otherwise would risk making a non-
sense of the statutory scheme—suggesting that transforma-
tive uses of originals belong to the copyright holder (under
§ 106) but that others may simultaneously claim those trans-
formative uses for themselves (under § 107). We aren't nor-
mally in the business of putting a statute “at war with itself ”
in this way. United States v. American Tobacco Co., 221
U. S. 106, 180 (1911).
Finally, the fourth fair-use factor requires courts to assess
“the effect of the use upon the potential market for or value
of the copyrighted work.” § 107(4). This Court has de-
scribed the fourth factor as the “most important” one.
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Harper & Row, Publishers, Inc. v. Nation Enterprises, 471
U. S. 539, 566 (1985). This Court has said, too, that no factor
may “be treated in isolation, one from another.” Campbell
v. Acuff-Rose Music, Inc., 510 U. S. 569, 578 (1994). Nor
does anything in the fourth factor call on courts to speculate
about artistic ambitions or aesthetics. Instead, it requires
courts to ask whether consumers treat a challenged use “as
a market replacement” for a copyrighted work or a market
complement that does not impair demand for the original.
Id., at 591. Reading § 107 as a whole, then, it supplies courts
with a sequential chain of questions about the particular
challenged use—starting with its purpose and character (in
the frst factor) and ending with its effect (in the fourth).
There is no double counting here. Contra, post, at 579
(Kagan, J., dissenting). Instead, the statute proceeds from
step to step, asking judges to assess whether the challenged
use (as revealed by its purpose, character, amount of source
material used, and effect) serves as a complement to or a
substitute for a copyrighted work.
556 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
Gorsuch, J., concurring
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 540–548; post, at 565–567, 591 (Kagan, J., dissent-
ing). Or are the artistic purposes latent in the two images
and their aesthetic character actually more similar than that?
Happily, the law does not require judges to tangle with ques-
tions so far beyond our competence. Instead, the frst fair-
use factor requires courts to assess only whether the purpose
and character of the challenged use is the same as a pro-
tected use. And here, the undisputed facts reveal that the
Foundation sought to use its image as a commercial substitute
for Ms. Goldsmith's photograph. Of course, competitive prod-
ucts often differ in material respects and a buyer may fnd
these differences reason to prefer one offering over another.
Cf. post, at 566–567, 574–575 (Kagan, J., dissenting). But
Page Proof Pending Publication
under the frst fair-use factor the salient point is that the
purpose and character of the Foundation's use involved com-
petition with Ms. Goldsmith's image. To know that much is
to know the frst fair-use factor favors Ms. Goldsmith.
It is equally important, however, to acknowledge what this
case does not involve and what the Court does not decide.
Worried about the fate of artists seeking to portray reclining
nudes or papal authorities, or authors hoping to build on clas-
sic literary themes? Post, at 582–592 (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 inter-
pret and apply many of the reticulated elements of the Copy-
right Act that Congress has adopted to balance these com-
peting interests. Our only job today is to interpret and
apply faithfully one statutory factor among many Congress
has deemed relevant to the affrmative defense of fair use.
Cite as: 598 U. S. 508 (2023) 557
Gorsuch, J., concurring
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 fnd 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” similar-
ity between the allegedly infringing work and the original
elements of his own copyrighted work. See 4 Nimmer on
Copyright § 13.03[A] (2023). And even when two works are
substantially similar, if both the plaintiff's and the defend-
ant's works copy from a third source (reworking, say, a tradi-
tional artistic or literary theme), a claim for infringement
Page Proof Pending Publication
generally will not succeed. See 2 Nimmer on Copyright
§ 8.01[C]. In this case, we address none of these questions
or other elements of the infringement standard designed to
ensure room for later artists to build on the work of their
predecessors. The district court concluded that it “need not
address” the merits of Ms. Goldsmith's infringement claim
because the Foundation could prevail at summary judgment
on its affrmative defense of fair use. 382 F. Supp. 3d 312,
324 (SDNY 2019). The Second Circuit reversed, focused
primarily on the district court's “application of the four fair-
use factors.” 11 F. 4th 26, 32 (2021); see id., at 36–52. And
this Court granted review to decide only the question of fair
use and only the role of a single factor in that affrmative
defense. 596 U. S. ––– (2022).
Last but hardly least, while our interpretation of the frst
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 nonproft mu-
558 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
Kagan, J., dissenting
seum or a for-proft 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.
Justice Kagan, with whom The Chief Justice joins,
dissenting.
Today, the Court declares that Andy Warhol's eye-popping
silkscreen of Prince—a work based on but dramatically al-
tering an existing photograph—is (in copyright lingo) not
“transformative.” Still more, the Court decides that even if
Page Proof Pending Publication
Warhol's portrait were transformative—even if its expres-
sion and meaning were worlds away from the photo's—that
fact would not matter. For in the majority's view, copyright
law's frst fair-use factor—addressing “the purpose and char-
acter” of “the use made of a work”—is uninterested in
the distinctiveness and newness of Warhol's portrait. 17
U. S. C. § 107. What matters under that factor, the majority
says, is instead a marketing decision: In the majority's view,
Warhol's licensing of the silkscreen to a magazine precludes
fair use.1
You've probably heard of Andy Warhol; you've probably
seen his art. You know that he reframed and reformu-
lated—in a word, transformed—images created frst by oth-
ers. Campbell's soup cans and Brillo boxes. Photos of
celebrity icons: Marilyn, Elvis, Jackie, Liz—and, as most
1
By the time of the licensing, Warhol had died and the Warhol Founda-
tion had stepped into his shoes. But for ease of exposition, I will refer to
both the artist and his successor-in-interest as Warhol.
Cite as: 598 U. S. 508 (2023) 559
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 “fatten-
[ing]”—with the same “essential nature.” Ante, at 522, 538,
n. 14, 546 (emphasis deleted). Or more generally, to observe
the majority's lack of appreciation for the way his works
differ in both aesthetics and message from the original 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 fnding of fair use. Google
LLC v. Oracle America, Inc., 593 U. S. –––, ––– – ––– (2021).
That Court would have told this one to go back to school.
What is worse, that refresher course would apparently be
insuffcient. For it is not just that the majority does not
Page Proof Pending Publication
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 –––. When it did so to
a signifcant degree, we called the work “transformative”
and held that the fair-use test's frst factor favored the copier
(though other factors could outweigh that one). But today's
decision—all the majority's protestations notwithstanding—
leaves our frst-factor inquiry in shambles. The majority
holds that because Warhol licensed his work to a magazine—
as Goldsmith sometimes also did—the first factor goes
against him. See, e. g., ante, at 547. It does not matter how
different the Warhol is from the original photo—how much
560 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
Kagan, J., dissenting
“new expression, meaning, or message” he added. It does
not matter that the silkscreen and the photo do not have the
same aesthetic characteristics and do not convey the same
meaning. It does not matter that because of those dissimi-
larities, the magazine publisher did not view the one as a
substitute for the other. All that matters is that Warhol and
the publisher entered into a licensing transaction, similar to
one Goldsmith might have done. Because the artist had
such a commercial purpose, all the creativity in the world
could not save him.
That doctrinal shift ill serves copyright's core purpose.
The law does not grant artists (and authors and composers
and so on) exclusive rights—that is, monopolies—for their
own sake. It does so to foster creativity—“[t]o promote the
[p]rogress” of both arts and science. U. S. Const., Art. I, § 8,
cl. 8. And for that same reason, the law also protects the
fair use of copyrighted material. Both Congress and the
courts have long recognized that an overly stringent copy-
Page Proof Pending Publication
right regime actually “stife[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 omitted);
see Campbell, 510 U. S., at 578–579. For, let's be honest,
artists don't create all on their own; they cannot do what
they do without borrowing from or otherwise making use of
the work of others. That is the way artistry of all kinds—
visual, musical, literary—happens (as it is the way knowl-
edge and invention generally develop). The fair-use test's
frst factor responds to that truth: As understood in our prec-
edent, it provides “breathing space” for artists to use exist-
ing materials to make fundamentally new works, for the pub-
lic's enjoyment and beneft. Id., at 579. In now remaking
that factor, and thus constricting fair use's boundaries, the
majority hampers creative progress and undermines creative
freedom. I respectfully dissent.2
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-
Cite as: 598 U. S. 508 (2023) 561
Kagan, J., dissenting
I
A
Andy Warhol is the avatar of transformative copying. Cf.
Google, 593 U. S., at ––– – ––– (selecting Warhol, from the
universe of creators, to illustrate what transformative copy-
ing 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 par-
ticular, 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 fne art with
mass culture, depended on “appropriation[s]”: The use of
“elements of an extant image[ ] is Warhol's entire modus
operandi.” B. Gopnik, Artistic Appropriation vs. Copyright
Page Proof Pending Publication
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 fipsides of
each other. To a public accustomed to thinking of art as
formal works “belong[ing] in gold frames”—disconnected
from the everyday world of products and personalities—
Warhol's paintings landed like a thunderclap. A. Danto,
Andy Warhol 36 (2009). Think Soup Cans or, in another
vein, think Elvis. Warhol had created “something very
refuting? After all, a dissent with “no theory” and “[n]o reason” is not
one usually thought to merit pages of commentary and fstfuls of comeback
footnotes. Ante, at 548. 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.
562 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
Kagan, J., dissenting
new”—“shockingly important, transformative art.” B. Gop-
nik, Warhol 138 (2020); Gopnik, Artistic Appropriation.
To see the method in action, consider one of Warhol's pre-
Prince celebrity silkscreens—this one, of Marilyn Monroe.
He began with a publicity photograph of the actress. And
then he went to work. He reframed the image, zooming in
on Monroe's face to “produc[e] the disembodied effect of a
cinematic close-up.” 1 App. 161 (expert declaration).
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At that point, he produced a high-contrast, fattened 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 fat, even consistency and an industrial
appearance.” Id., at 165. The same high-contrast image
was then reproduced in negative on a silkscreen, designed to
function as a selectively porous mesh. Warhol would “place
the screen face down on the canvas, pour ink onto the back
of the mesh, and use a squeegee to pull the ink through the
weave and onto the canvas.” Id., at 164. On some of his
Marilyns (there are many), he reordered the process—frst
ink, then color, then (perhaps) ink again. See id., at 165–
Cite as: 598 U. S. 508 (2023) 563
Kagan, J., dissenting
166. The result—see for yourself—is miles away from a lit-
eral copy of the publicity photo.
Page Proof Pending Publication
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(internal quotation marks omitted). But they also function
as a biting critique of the cult of celebrity, and the role it
plays in American life. With misaligned, “Day-Glo” colors
suggesting “artifciality 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 defciencies” of a “mass-media culture” in which
564 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
v. GOLDSMITH
Kagan, J., dissenting
“such superfcial icons loom so large.” 1 App. 208, 210
(internal quotation marks omitted). Out of a publicity
photo came both memorable portraiture and pointed social
commentary.
As with Marilyn, similarly with Prince. In 1984, Vanity
Fair commissioned Warhol to create a portrait based on a
black-and-white photograph taken by noted photographer
Lynn Goldsmith:
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As he did in the Marilyn series, Warhol cropped the photo,
so that Prince's head flls the whole frame: It thus becomes
“disembodied,” as if “magically suspended in space.” Id., at
174. And as before, Warhol converted the cropped photo
into a higher-contrast image, incorporated into a silkscreen.
That image isolated and exaggerated the darkest details of
Prince's head; it also reduced his “natural, angled position,”
presenting him in a more face-forward way. Id., at 223.
Warhol traced, painted, and inked, as earlier described. See
supra, at 562. He also made a second silkscreen, based on
his tracings; the ink he passed through that screen left differ-
Cite as: 598 U. S. 508 (2023) 565
Kagan, J., dissenting
ently colored, out-of-kilter lines around Prince's face and hair
(a bit hard to see in the reproduction below—more pro-
nounced in the original). Altogether, Warhol made 14 prints
and two drawings—the Prince series—in a range of unnatu-
ral, lurid hues. See Appendix, ante, at 552. Vanity Fair
chose the Purple Prince to accompany an article on the musi-
cian. Thirty-two years later, just after Prince died, Condé
Nast paid Warhol (now actually his foundation, see supra,
at 558, 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 maga-
zines published:
Page Proof Pending Publication
Andy Warhol, Prince, 1984, synthetic paint and silkscreen ink on canvas
It does not take an art expert to see a transformation—
but in any event, all those offering testimony in this case
agreed there was one. The experts explained, in far greater
detail than I have, the laborious and painstaking work that
Warhol put into these and other portraits. See 1 App. 160–
185, 212–216, 222–224. They described, in ways I have tried
to suggest, the resulting visual differences between the
photo and the silkscreen. As one summarized the matter:
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The two works are “materially distinct” in “their composi-
tion, 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
“fattened, 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
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machine” that “packages and disseminates commoditized im-
ages.” Id., at 160. He manifested, in short, the dehumaniz-
ing culture of celebrity in America. The message could 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 op-
tions: the Goldsmith photo, the Warhol portrait. Would you
say that you don't really care? That the employee is free to
fip a coin? In the majority's view, you apparently would.
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 522 (fg.
6); see also Brief for Goldsmith 17 (doing the same thing). But the major-
ity is trying too hard: Its manipulated picture in fact reveals the signif-
cance 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.
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Kagan, J., dissenting
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 526; see ante, at 535–536, and n. 11, 539, n. 15, 545,
547. 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
528, 545; see ante, at 535–536, and n. 11, 539, n. 15, 547. 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
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meaning—between the Goldsmith photo and the Warhol por-
trait. They knew about the photo; but they wanted the por-
trait. 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 fnding of fair
use. That answer comports with the copyright statute, its
underlying policy, and our precedent concerning the two.
Under established copyright law (until today), Warhol's addi-
tion of important “new expression, meaning, [and] message”
counts in his favor in the fair-use inquiry. Campbell, 510
U. S., at 579.
Start by asking a broader question: Why do we have “fair
use” anyway? The majority responds that while copyrights
encourage the making of creative works, fair use promotes
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Kagan, J., dissenting
their “public availability.” Ante, at 526. But that descrip-
tion sells fair use far short. Beyond promoting “avail-
ability,” fair use itself advances creativity and artistic
progress. See Campbell, 510 U. S., at 575, 579 (fair use
is “necessary to fulfll copyright's very purpose”—to
“promote science and the arts”). That is because creative
work does not happen in a vacuum. “Nothing comes from
nothing, nothing ever could,” said songwriter Richard Rodg-
ers, maybe thinking not only about love and marriage but
also about how the Great American Songbook arose from
vaudeville, ragtime, the blues, and jazz.4 This Court has
long understood the point—has gotten how new art, new in-
vention, and new knowledge arise from existing works. Our
seminal opinion on fair use quoted the illustrious Justice
Story:
“In truth, in literature, in science and in art, there are,
and can be, few, if any, things, which . . . are strictly
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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 “stife 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
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 583–591 (making this point at greater
length—and with pictures!).
Cite as: 598 U. S. 508 (2023) 569
Kagan, J., dissenting
material, so as not to “put manacles upon” creative progress.
Campbell, 510 U. S., at 575 (internal quotation marks omit-
ted). In short, copyright's core value—promoting creativ-
ity—sometimes demands a pass for copying.
To identify when that is so, the courts developed and
Congress later codifed a multi-factored inquiry. As the ma-
jority describes, see ante, at 527, 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 copy-
righted work, “including whether such use is of a commercial
nature”; (2) “the nature of the copyrighted work”; (3) “the
amount and substantiality of the portion used in relation to
the copyrighted work as a whole”; and (4) “the effect of the
use upon the potential market for or value of the copyrighted
work.” 17 U. S. C. § 107. Those factors sometimes point in
different directions; if so, a court must weigh them against
each other. In doing so, we have stated, courts should
view the fourth factor—which focuses on the copyright hold-
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er's economic interests—as the “most important. ” See
Harper & Row, Publishers, Inc. v. Nation Enterprises, 471
U. S. 539, 566 (1985).5 But the overall balance cannot come
5
The fourth factor has, to use the majority's repeated example, forced
many a flmmaker to pay for adapting books into movies—as we noted two
Terms ago. See Google LLC v. Oracle America, Inc., 593 U. S. –––, –––
(2021) (explaining that flm adaptations may founder on “[t]he fourth statu-
tory factor” because “[m]aking a flm of an author's book” may result in
“potential or presumed losses to the copyright owner”). The majority
asserts that it is “aware of no authority for the proposition” that the fourth
factor can thus protect against unlicensed flm adaptations, insisting that
the frst factor must do (or at least share in) the work. Ante, at 541–542,
n. 17; see ante, at 529, 541, 548. But Google is the “authority for the
proposition”: That's just what it said, in so many words. And anyway, the
majority's own frst-factor test, applied consistently, would favor, not stop,
the freeloading flmmaker. 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 526; see ante, at 535–536, and n. 11, 539,
n. 15, 545, 547. A flm adaptation doesn't ft that mold: The flmmaker
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out right unless each factor is assessed correctly. This case,
of course, is about (and only about) the frst.
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 frst 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 frst 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 frst 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 “trans-
formed in the creation of new information, new aesthetics,
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new insights.” Id., at 1111. That is hardly the end of the
fair-use inquiry (commercialism, too, may bear on the frst
factor, and anyway there are three factors to go), but it mat-
ters profoundly. Because when a transformation of the orig-
inal 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.
(unlike Warhol, in the majority's view) wants to reach different buyers, in
different markets, consuming different products. The majority at one
point suggests it might have some different factor 1 test in its back pocket
to deal with this problem. See ante, at 548, n. 22. But assuming the
majority's approach, as stated repeatedly in its opinion, is truly the majori-
ty's approach, factor 1 won't help the author in the book-to-flm situation.
Under that approach, it is the fourth factor, not the frst, which has to
“take[ ] care of derivative works like book-to-flm adaptations.” Ante, at
541, n. 17. It's a good thing the majority errs in believing that the fourth
factor isn't up to the job.
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Kagan, J., dissenting
In Campbell, our primary case on the topic, we stated that
the frst 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 furthered
by the creation of transformative works.” 510 U. S., at 579.
We then expounded on when such a transformation happens.
Harking back to Justice Story, we explained that a “new
work” might “merely ``supersede[ ] the objects' of the original
creation”—meaning, that it does no more, and for no other
end, than the frst 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
frst with new expression, meaning, or message.” 510 U. S.,
at 579. Forgive me, but given the majority's stance (see,
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e. g., ante, at 545–546), that bears repeating: The critical fac-
tor 1 inquiry, we held, is whether a new work alters the frst
with “new expression, meaning, or message.” The more it
does so, the more transformative the new work. And (here
is the fnal takeaway) “the more transformative the new
work, the less will be the signifcance of other factors, like
commercialism, that may weigh against a fnding of fair use.”
510 U. S., at 579. Under that approach, the Campbell Court
held, the rap group 2 Live Crew's “transformative” copying
of Roy Orbison's “Pretty Woman” counted in favor of fair
use. Id., at 583. And that was so even though the rap song
was, as everyone agreed, recorded and later sold for proft.
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 –––. We again described “a copying
572 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
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Kagan, J., dissenting
use that adds something new and important” as “transforma-
tive.” Ibid. We reiterated that protecting transformative
uses “stimulate[s] creativity” and thus “fulfll[s] the objective
of copyright law.” Ibid. (quoting Leval 1111). And then we
gave an example. Yes, of course, we pointed to Andy War-
hol. (The majority claims not to be embarrassed by this em-
barrassing fact because the specifc reference was to his Soup
Cans, rather than his celebrity images. But drawing a dis-
tinction between a “commentary on consumerism”—which is
how the majority describes his soup canvases, ante, at 539—
and a commentary on celebrity culture, i. e., the turning of
people into consumption items, is slicing the baloney pretty
thin.) Finally, the Court conducted the frst-factor inquiry
it had described. Google had replicated Sun Microsystems'
computer code as part of a “commercial endeavor,” done “for
commercial proft.” 593 U. S., at –––. No matter, said the
Court. “[M]any common fair uses are indisputably commer-
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cial.” 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 ––– – –––. The use of the code, the Court held, was there-
fore “transformative” and “point[ed] toward fair use.” Id.,at –––, –––.
Campbell and Google also illustrate the difference it can
make in the world to protect transformative works through
fair use. Easy enough to say (as the majority does, see ante,
at 549) that a follow-on creator should just pay a licensing
fee for its use of an original work. But sometimes copyright
holders charge an out-of-range price for licenses. And other
times they just say no. In Campbell, for example, Orbison's
successor-in-interest turned down 2 Live Crew's request for
a license, hoping to block the rap take-off of the original song.
See 510 U. S., at 572–573. And in Google, the parties could
not agree on licensing terms, as Sun insisted on conditions
that Google thought would have subverted its business
Cite as: 598 U. S. 508 (2023) 573
Kagan, J., dissenting
model. See 593 U. S., at –––. 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 transformative-
ness—into the expressive novelty of the follow-on work (re-
gardless whether the original creator granted permission).
Id., at –––; see Campbell, 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 appearance,
relating to “composition, presentation, color palette, and
media.” 1 App. 227; see supra, at 564–566. The differences
in meaning that arose from replacing a realistic—and indeed
humanistic—depiction of the performer with an unnatural,
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disembodied, masklike one. See ibid. The conveyance of
new messages about celebrity culture and its personal and
societal impacts. See ibid. The presence of, in a word,
“transformation”—the kind of creative building that copy-
right exists to encourage. Warhol's use, to be sure, had a
commercial aspect. Like most artists, Warhol did not want
to hide his works in a garret; he wanted to sell them. But
as Campbell and Google both demonstrate (and as further
discussed below), that fact is nothing near the showstopper
the majority claims. Remember, the more transformative
the work, the less commercialism matters. See Campbell,
510 U. S., at 579; supra, at 571; ante, at 531 (acknowledging
the point, even while refusing to give it any meaning). The
dazzling creativity evident in the Prince portrait might not
get Warhol all the way home in the fair-use inquiry; there
remain other factors to be considered and possibly weighed
against the frst one. See supra, at 559, 567, 570. But the
“purpose and character of [Warhol's] use” of the copyrighted
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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 ma-
jority says, was not transformative. See ante, at 538. Ap-
parently, Warhol made only “modest alterations.” Ante, at
546. Anyone, the majority suggests, could have “crop[ped],
fatten[ed], trace[d], and color[ed] the photo” as Warhol did.
Ante, at 522. True, Warhol portrayed Prince “somewhat
differently.” Ante, at 546. But the “degree of difference”
is too small: It consists merely in applying Warhol's “charac-
teristic style”—an aesthetic gloss, if you will—“to bring out
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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 ibid. (“even if
such commentary is perceptible”). And as for the District
Court's view that Warhol transformed Prince from a “vulner-
able, uncomfortable person to an iconic, larger-than-life fg-
ure,” the majority is downright dismissive. Ante, at 545.
Vulnerable, iconic—who cares? The silkscreen and the
photo, the majority claims, still have the same “essential na-
ture.” Ante, at 538, n. 14 (emphasis deleted).
The description is disheartening. It's as though Warhol is
an Instagram flter, and a simple one at that (e. g., sepia-
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.
Cite as: 598 U. S. 508 (2023) 575
Kagan, J., dissenting
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 frmly in the “I could
paint that” school of art criticism. No wonder the majority
sees the two images as essentially fungible products in the
magazine market—publish this one, publish that one, what
does it matter? See ante, at 534–536; supra, at 566–567.
The problem is that it does matter, for all the reasons given
in the record and discussed above. See supra, at 565–566.
Warhol based his silkscreen on a photo, but fundamentally
changed its character and meaning. In belittling those cre-
ative contributions, the majority guarantees that it will
reach the wrong result.
Worse still, the majority maintains that those contribu-
tions, even if signifcant, just would not matter. All of War-
hol's artistry and social commentary is negated by one thing:
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Warhol licensed his portrait to a magazine, and Goldsmith
sometimes licensed her photos to magazines too. That is the
sum and substance of the majority opinion. Over and over,
the majority incants that “[b]oth [works] are portraits of
Prince used in magazines to illustrate stories about Prince”;
they therefore both “share substantially the same pur-
pose”—meaning, a commercial one. Ante, at 535, 550; see
ante, at 526, 539, n. 15, 545, 547. Or said otherwise, because
Warhol entered into a licensing transaction with Condé Nast,
he could not get any help from factor 1—regardless how
transformative his image was. See, e. g., ante, at 547 (War-
hol'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 Gold-
smith's photo, he might have availed himself of that factor's
beneft (though why anyone would be interested in that work
is mysterious). See ante, at 546–547. But because he
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instead commented on society—the dehumanizing culture of
celebrity—he is (go fgure) out of luck.
From top to bottom, the analysis fails. It does not ft 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 –––.
That is how art, literature, and music happen; it is also how
all forms of knowledge advance. Even as the majority mis-
construes 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 contribu-
tions 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
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meaning as a faulty “paraphrase” of the statutory language.
Ante, at 541–542. 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 526, 535–536, and n. 11, 542 (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 537–538, and n. 14. When re-
ferring 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 537. But that reductionist view
rids the term of most of its ordinary meaning. “Character”
typically refers to a thing's “main or essential nature[,] es-
p[ecially] as strongly marked and serving to distinguish.”
Webster's Third 376; see supra, at 570. 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 “character”
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Kagan, J., dissenting
of 2 Live Crew's rap). So the term “character” makes sig-
nifcant everything the record contains—and everything ev-
eryone (save the majority) knows—about the differences in
expression and meaning between Goldsmith's photo and War-
hol's silkscreen.
Second, the majority signifcantly narrows § 107(1)'s refer-
ence 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 purpose,
the majority says, was just to “depict Prince in [a] magazine
stor[y] about Prince” in exchange for money. Ante, at 526.
The majority spurns all that mattered to the artist—evident
on the face of his work—about “expression, meaning, [and]
message.” Campbell, 510 U. S., at 579; Google, 593 U. S.,
at –––. That indifference to purposes beyond the commer-
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cial—for what an artist, most fundamentally, wants to com-
municate—fnds no support in § 107(1).7
7
The majority seeks some statutory backing in what it describes as
§ 107's reference to the “specifc ``use' ” of a work “alleged to be ``an infringe-
ment.' ” Ante, at 533; see also ante, at 554, 556 (Gorsuch, J., concurring).
Because the challenged use here is a licensing (so says the majority), all
that matters is that Goldsmith engaged in similar commercial transactions.
But the majority is both rewriting and splicing the statute. The key part
of the statute simply asks whether the “use made of a [copyrighted]
work” is fair. (The term “alleged infringement,” which the majority
banks on, nowhere exists in the text; indeed, all the statute says about
infringement, and in a separate sentence, is that a fair use doesn't count
as one.) The statute—that is, the actual one—thus focuses attention on
what the copier does with the underlying work. So when the statute
more particularly asks (in factor 1) about the “purpose and character of
the use”—meaning again, the “use made of [the copyrighted] work”—it is
asking to what end, and with what result, the copier made use of the original.
And that necessarily involves the issue of transformation—more specifcally
here, how Warhol's silkscreen transformed Goldsmith's photo.
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Still more, the majority's commercialism-über-alles view
of the factor 1 inquiry fts badly with two other parts of
the fair-use provision. To begin, take the preamble, which
gives examples of uses of ten thought fair: “criticism,
comment, news reporting, teaching[,] . . . scholarship, or
research. ” § 107. As we have explained, an emphasis
on commercialism would “swallow” those uses—that
is, would mostly deprive them of fair-use protection. Camp-
bell, 510 U. S., at 584. For the listed “activities are gener-
ally conducted for proft in this country.” Ibid. (inter-
nal 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
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copyrighted work.” § 107(4). You might think that when
Congress lists two different factors for consideration, it is
because the two factors are, well, different. But the ma-
jority transplants factor 4 into factor 1. Recall that the ma-
jority conducts a kind of market analysis: Warhol, the major-
ity 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 535–536; see
also ante, at 531–532 (focusing on whether a follow-on work
is a market “substitute” for the original); ante, at 556 (Gor-
such, J., concurring) (describing the “salient point” as
whether Warhol's “use involved competition with Ms. Gold-
smith's image”). That issue is no doubt important in the
fair-use inquiry. But it is the stuff of factor 4: how Warhol's
use affected the “value of ” or “market for” Goldsmith's
photo. Factor 1 focuses on the other side of the equation:
the new expression, meaning, or message that may come
from someone else using the original. Under the statute,
Cite as: 598 U. S. 508 (2023) 579
Kagan, J., dissenting
courts are supposed to strike a balance between the two—
and thus between rewarding original creators and enabling
others to build on their works. That cannot happen when a
court, à la the majority, double-counts the frst goal and ig-
nores 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 frst factor] asks” is whether the new work “adds some-
thing new” to the copyrighted one. Ante, at 528 (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 515; see ante, at 531, 537,
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n. 13, 538, 544. 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 554, 556. And it is possible lower courts will
pick up on that difference, and ensure that the “newness” of
a follow-on work will continue to play a signifcant role in
the factor 1 analysis. If so, I'll be happy to discover that
my “claims [have] not age[d] well.” Ante, at 549. But that
would require courts to do what the majority does not: make
a serious 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
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 frst factor to favor fair use”? Ante, at 547.
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Certainly not because of our precedent—which conficts
with nearly all the majority says. As explained earlier, this
Court has decided two important cases about factor 1. See
supra, at 570–573. In each, the copier had built on the origi-
nal to make a product for sale—so the use was patently com-
mercial. And in each, that fact made no difference, because
the use was also transformative. The copier, we held, had
made a signifcant creative contribution—had added real
value. So in Campbell, we did not ask whether 2 Live Crew
and Roy Orbison both meant to make money by “including a
catchy song about women on a record album.” But cf. ante,
at 526 (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
signifcant “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 cre-
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ation.” 510 U. S., at 579 (internal quotation marks and al-
teration omitted). Similarly, in Google, we took for granted
that Google (the copier) and Sun (the original author) both
meant to market software platforms facilitating the same
tasks—just as (in the majority's refrain) Warhol and Gold-
smith both wanted to market images depicting the same sub-
ject. See 593 U. S., at –––, –––. “So what?” was our basic
response. Google's copying had enabled the company to
make a “highly creative and innovative tool,” advancing “cre-
ative progress” and thus serving “the basic constitutional
objective of copyright.” Id., at ––– (internal quotation
marks omitted). Search today's opinion high and low, you
will see no such awareness of how copying can help produce
valuable new works.
Nor does our precedent support the majority's strong dis-
tinction between follow-on works that “target” the original
and those that do not. Ante, at 547. (Even the majority
does not claim that anything in the text does so.) True
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Kagan, J., dissenting
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 par-
ody, Campbell made clear the limits of targeting's impor-
tance. The Court observed that as the “extent of trans-
formation” increases, the relevance of targeting decreases.
510 U. S., at 581, n. 14. Google proves the point. The new
work there did not parody, comment on, or otherwise direct
itself to the old: The former just made use of the latter
for its own devices. Yet that fact never made an appearance
in the Court's opinion; what mattered instead was the
“highly creative” use Google had made of the copied code.
That decision is on point here. Would Warhol's work really
have been more worthy of protection if it had (somehow)
“she[d] light” on Goldsmith's photograph, rather than on
Prince, his celebrity status, and celebrity culture? Ante,
at 540. Would that Goldsmith-focused work (whatever it
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might be) have more meaningfully advanced creative prog-
ress, which is copyright's raison d'être, than the work he ac-
tually made? I can't see how; more like the opposite. The
majority's preference for the directed work, apparently on
grounds of necessity, see ante, at 539–540, 546–547, again
refects its undervaluing of transformative copying as a core
part of artistry.
And there's the rub. (Yes, that's mostly Shakespeare.)
As Congress knew, and as this Court once saw, new creations
come from building on—and, in the process, transforming—
those coming before. Today's decision stymies and sup-
presses that process, in art and every other kind of crea-
tive endeavor. The decision enhances a copyright holder's
power to inhibit artistic development, by enabling her
to block even the use of a work to fashion something quite
different. Or viewed the other way round, the decision im-
pedes non-copyright holders' artistic pursuits, by preventing
them from making even the most novel uses of existing mate-
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Kagan, J., dissenting
rials. On either account, the public loses: The decision oper-
ates to constrain creative expression.8
The effect, moreover, will be dramatic. Return again
to Justice Story, see supra, at 568: “[I]n literature, in
science and in art, there are, and can be, few, if any,
things” that are “new and original throughout.” Campbell,
510 U. S., at 575 (quoting Emerson, 8 F. Cas., at 619). Every
work “borrows, and must necessarily” do so. 510 U. S.,
at 575. Creators themselves know that fact deep in
their bones. Here is Mark Twain on the subject: “The ker-
n[e]l, the soul—let us go further and say the substance,
the bulk, the actual and valuable material” of creative
works—all are “consciously and unconsciously drawn from
a million outside sources.” Letter from M. Twain to H.
Keller, in 2 Mark Twain's Letters 731 (1917); see also id.,
at 732 (quoting Oliver Wendell Holmes—no, not that one,
his father the poet—as saying “I have never originated
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anything altogether myself, nor met anybody who had”).
“[A]ppropriation, mimicry, quotation, allusion and sublimated
collaboration,” novelist Jonathan Lethem has explained, are
“a kind of sine qua non of the creative act, cutting across
all forms and genres in the realm of cultural produc-
tion.” The Ecstasy of Infuence, in Harper's Magazine 61
(Feb. 2007). Or as Mary Shelley once wrote, there is no
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 534, and n. 10. So, for example, if Warhol had used
his Prince silkscreen “for teaching purposes” or sought to “display [it] in
a nonproft museum,” the frst factor could have gone the other way.
Ibid.; ante, at 557–558 (Gorsuch, J., concurring). But recall what Samuel
Johnson said about “blockheads”: Unless an artist is one, he makes art for
money. See supra, at 578. 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.
Cite as: 598 U. S. 508 (2023) 583
Kagan, J., dissenting
such thing as “creating out of [a] void.” Frankenstein ix
(1831).9
Consider, in light of those authorial references, how the
majority's factor 1 analysis might play out in literature.
And why not start with the best? Shakespeare borrowed
over and over and over. See, e. g., 8 Narrative and Dramatic
Sources of Shakespeare 351–352 (G. Bullough ed. 1975)
(“Shakespeare was an adapter of other men's tales and plays;
he liked to build a new construction on something given”).
I could point to a whole slew of works, but let's take Romeo
and Juliet as an example. Shakespeare's version copied
most directly from Arthur Brooke's The Tragical History of
Romeus and Juliet, written a few decades earlier (though of
course Brooke copied from someone, and that person copied
from someone, and that person . . . going back at least to
Ovid's story about Pyramus and Thisbe). Shakespeare took
plot, characters, themes, even passages: The friar's line to
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Romeo, “Art thou a man? Thy form cries out thou art,”
appeared in Brooke as “Art thou a man? The shape saith so
thou art.” Bullough 387. (Shakespeare was, among other
things, a good editor.) Of course Shakespeare also added
loads of genius, and so made the borrowed stories “uniquely
Shakespearian.” G. Williams, Shakespeare's Basic Plot Sit-
uation, 2 Shakespeare Quarterly No. 4, p. 313 (Oct. 1951).
But on the majority's analysis? The two works—Shake-
speare's and Brooke's—are just two stories of star-crossed
lovers written for commercial gain. Shakespeare would not
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 fnd
that not only the best, but the most individual parts of his work may be
those in which the dead poets, his ancestors, assert their immortality most
vigorously. . . . No poet, no artist of any art, has his complete meaning
alone.” Id., at 43–44.
584 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
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qualify for fair use; he would not even come out ahead on
factor 1.
And if you think that's just Shakespeare, here are a couple
more. (Once you start looking, examples are everywhere.)
Lolita, though hard to read today, is usually thought one of
the greatest novels of the 20th century. But the plotline—
an adult man takes a room as a lodger; embarks on an obses-
sive 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 Lo-
lita is found in the frst. But to the majority? Just two
stories of revoltingly lecherous men, published for proft.
So even factor 1 of the fair-use inquiry would not aid Nabo-
kov. Or take one of the most famed adventure stories ever
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told. Here is the provenance of Treasure Island, as Robert
Louis Stevenson himself described it:
“No doubt the parrot once belonged to Robinson Crusoe.
No doubt the skeleton is conveyed from [Edgar Allan]
Poe. I think little of these, they are trifes and details;
and no man can hope to have a monopoly of skeletons or
make a corner in talking birds. . . . It is my debt to
Washington Irving that exercises my conscience, and
justly so, for I believe plagiarism was rarely carried far-
ther. . . . Billy Bones, his chest, the company in the par-
lor, the whole inner spirit and a good deal of the material
detail of my frst chapters—all were there, all were
the property of Washington Irving.” My First Book—
Treasure Island, in 21 Syracuse University Library As-
sociates Courier No. 2, p. 84 (1986).
Odd that a book about pirates should have practiced pi-
racy? Not really, because tons of books do—and not many
Cite as: 598 U. S. 508 (2023) 585
Kagan, J., dissenting
in order to “target” or otherwise comment on the originals.
“Thomas Mann, himself a master of [the art,] called [it]
``higher cribbing.' ” Lethem 59. The point here is that
most writers worth their salt steal other writers' moves—
and put them to other, often better uses. But the majority
would say, again and yet again in the face of such transforma-
tive copying, “no factor 1 help and surely no fair use.”
Or how about music? Positively rife with copying of all
kinds. Suppose some early blues artist (W. C. Handy, per-
haps?) had copyrighted the 12-bar, three-chord form—the es-
sential foundation (much as Goldsmith's photo is to Warhol's
silkscreen) of many blues songs. Under the majority's view,
Handy could then have controlled—meaning, curtailed—the
development of the genre. And also of a fair bit of rock and
roll. “Just another rendition of 12-bar blues for sale in rec-
ord stores,” the majority would say to Chuck Berry (Johnny
B. Goode), Bill Haley (Rock Around the Clock), Jimi Hendrix
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(Red House), or Eric Clapton (Crossroads). Or to switch
genres, imagine a pioneering classical composer (Haydn?)
had copyrighted the three-section sonata form. “One more
piece built on the same old structure, for use in concert
halls,” the majority might say to Mozart and Beethoven and
countless others: “Sure, some new notes, but the backbone
of your compositions is identical.”
And then, there's the appropriation of those notes, and
accompanying words, for use in new and different ways.
Stravinsky reportedly said that great composers do not imi-
tate, 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 fngers, but
586 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
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maybe rock's only Nobel Laureate and greatest-ever lyricist
is known for some appropriations? See M. Gilmore, The Roll-
ing 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 advancement of
rock music—the great artistic experiment of our era.”
The Red Hand Files (Apr. 2020) (online source archived
at https://www.supremecourt.gov).
But not as the majority sees the matter. Are these guys
making money? Are they appropriating for some different
reason than to critique the thing being borrowed? Then
they're “shar[ing] the objectives” of the original work, and
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will get no beneft from factor 1, let alone protection from
the whole fair-use test. Ante, at 536.
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 ar-
chived 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 strug-
gled to settle on 80. Ibid.) To see how important all that copying was,
consider Mr. Tambourine Man. When the Byrds frst 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.
Cite as: 598 U. S. 508 (2023) 587
Kagan, J., dissenting
Finally, back to the visual arts, for while Warhol may have
been the master appropriator within that feld, he had plenty
of company; indeed, he worked within an established tradi-
tion going back centuries (millennia?). The representatives
of three giants of modern art (you may know one for his use
of comics) describe the tradition as follows: “[T]he use and
reuse of existing imagery” are “part of art's lifeblood”—“not
just in workaday practice or fedgling student efforts, but
also in the revolutionary moments of art history.” Brief for
Robert Rauschenberg, Roy Lichtenstein, and Joan Mitchell
Foundations et al. as Amici Curiae 6.
Consider as one example the reclining nude. Probably
the frst such fgure 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:
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Giorgione, Sleeping Venus, c. 1510, oil on canvas
But things were destined not to end there. One of Giorgi-
one's pupils was Titian, and the former student undertook
to riff on his master. The resulting Venus of Urbino is a
588 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
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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:
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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 526, 535. But wouldn't that
miss something—indeed, everything—about how an artist
engaged with a prior work to create new expression and add
new value?
And the reuse of past images was far from done. For here
is Édouard Manet's Olympia, now considered a foundational
work of artistic modernism, but referring in obvious ways to
Titian's (and back a step, to Giorgione's) Venus:
Cite as: 598 U. S. 508 (2023) 589
Kagan, J., dissenting
Manet, Olympia, 1863, oil on canvas
Page
Here againProof Pending
consider the Publication
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 present.” Brief as
Amici Curiae 9. It is an especially striking example of a
recurrent phenomenon—of how the development of visual
art works across time and place, constantly building on what
came earlier. In fact, the Manet has itself spawned further
transformative paintings, from Cézanne to a raft of con-
temporary artists across the globe. See id., at 10–11. But
the majority, as to these matters, is uninterested and
unconcerned.
Take a look at one last example, from a modern master
very different from Warhol, but availing himself of the same
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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.
Page
Velázquez,Proof
Pope InnocentPending
c. 1650, oil on canvas
X, FrancisPublication
Bacon, Study After
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).
Bacon 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 Velázquez
original. Look at one, look at the other, and you know
Bacon copied. But he also transformed. He invested his
portrait with new “expression, meaning, [and] message,” con-
verting Velázquez's study of magisterial power into one of
mortal dread. Campbell, 510 U. S., at 579.
Cite as: 598 U. S. 508 (2023) 591
Kagan, J., dissenting
But the majority, from all it says, would fnd 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 526; so on the majori-
ty's reasoning, someone in the market for a papal portrait
could use either one, see ante, at 535–536. Velázquez's por-
trait, although Bacon's model, is not “the object of [his] com-
mentary.” Ante, at 540; see A. Zweite, Bacon's Scream, in
Francis Bacon: The Violence of the Real 71 (A. Zweite ed.
2006) (Bacon “was not seeking to expose Velázquez's master-
piece,” but instead to “adapt it” and “give it a new mean-
ing”). And absent that “target[ing],” the majority thinks
the portraits' distinct messages make no difference. Ante,
at 540. Recall how the majority deems irrelevant the Dis-
trict Court's view that the Goldsmith Prince is vulnerable,
the Warhol Prince iconic. Too small a “degree of differ-
ence,” according to the majority. Ante, at 545–546; see
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supra, at 574. So too here, presumably: the stolid Pope, the
disturbed Pope—it just doesn't matter. But that once again
misses what a copier accomplished: the making of a wholly
new piece of art from an existing one.
The majority thus treats creativity as a trifing part of the
fair-use inquiry, in disregard of settled copyright principles
and what they refect about the artistic process. On the ma-
jority's view, an artist had best not attempt to market even
a transformative follow-on work—one that adds signifcant
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 568–569. And not just on the margins.
Creative progress unfolds through use and reuse, framing
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and reframing: One work builds on what has gone before;
and later works build on that one; and so on through time.
Congress grasped the idea when it directed courts to attend
to the “purpose and character” of artistic borrowing—to
what the borrower has made out of existing materials. That
inquiry recognizes the value in using existing materials to
fashion something new. And so too, this Court—from Jus-
tice Story's time to two Terms ago—has known that it is
through such iterative processes that knowledge accumu-
lates and art fourishes. But not anymore. The majority's
decision is no “continuation” of “existing copyright law.”
Ante, at 550. In declining to acknowledge the importance
of transformative copying, the Court today, and for the frst
time, turns its back on how creativity works.
III
And the workings of creativity bring us back to Andy War-
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hol. For Warhol, as this Court noted in Google, is the very
embodiment of transformative copying. He is proof of con-
cept—that an artist working from a model can create im-
portant new expression. Or said more strongly, that appro-
priations can help bring great art into being. Warhol is a
towering fgure in modern art not despite but because of his
use of source materials. His work—whether Soup Cans and
Brillo Boxes or Marilyn and Prince—turned something not
his into something all his own. Except that it also became
all of ours, because his work today occupies a signifcant
place not only in our museums but in our wider artistic cul-
ture. And if the majority somehow cannot see it—well,
that's what evidentiary records are for. The one in this case
contained undisputed testimony, and lots of it, that Warhol's
Prince series conveyed a fundamentally different idea, in a
fundamentally different artistic style, than the photo he
started from. That is not the end of the fair-use inquiry.
The test, recall, has four parts, with one focusing squarely
on Goldsmith's interests. But factor 1 is supposed to meas-
Cite as: 598 U. S. 508 (2023) 593
Kagan, J., dissenting
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 frst
with new expression, meaning, or message”? Ibid. It did,
and it did. In failing to give Warhol credit for that transfor-
mation, the majority distorts ultimate resolution of the fair-
use question.
Still more troubling are the consequences of today's ruling
for other artists. If Warhol does not get credit for trans-
formative copying, who will? And when artists less famous
than Warhol cannot beneft from fair use, it will matter even
more. Goldsmith would probably have granted Warhol a li-
cense with few conditions, and for a price well within his
budget. But as our precedents show, licensors sometimes
place stringent limits on follow-on uses, especially to prevent
kinds of expression they disapprove. And licensors may
charge fees that prevent many or most artists from gaining
access to original works. Of course, that is all well and good
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if an artist wants merely to copy the original and market it
as his own. Preventing those uses—and thus incentivizing
the creation of original works—is what copyrights are for.
But when the artist wants to make a transformative use, a
different issue is presented. By now, the reason why should
be obvious. “Inhibit[ing] subsequent writers” and artists
from “improv[ing] upon prior works”—as the majority does
today—will “frustrate the very ends sought to be attained”
by copyright law. Harper & Row, 471 U. S., at 549. It will
stife 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.
Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
Page Proof Pending Publication
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 510, line 1, “and citations” is deleted
p. 511, line 11, “See, e. g., Google, 593 U. S., at –––” is changed to “See id.,
at 580, n. 14”