Andy Warhol Foundation for Visual Arts, Inc. v. GoldsmithAndy Warhol Foundation for Visual Arts, Inc. v. Goldsmith
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
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 commemorating 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 photographer. Goldsmith had been commissioned by Newsweek in 1981 to photograph a then “up and coming” musician named Prince Rogers Nelson, after which Newsweek published one of Goldsmith‘s photos along with an article about Prince. Years later, Goldsmith granted a limited license to Vanity Fair for use of one of her Prince photos as an “artist reference for an illustration.” The terms of the license included that the use would be for “one time” only. Vanity Fair hired Warhol to create the illustration, and Warhol used Goldsmith‘s photo to create a purple silkscreen portrait of Prince, which appeared with an article about Prince in Vanity Fair‘s November 1984 issue. The magazine credited Goldsmith for the “source photograph” and paid her $400. 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 notified AWF of her belief that it had infringed her copyright. AWF then sued Goldsmith for a declaratory judgment of noninfringement or, in the
Held: The “purpose and character” of AWF‘s use of Goldsmith‘s photograph in commercially licensing Orange Prince to Condé Nast does not favor AWF‘s fair use defense to copyright infringement. Pp. 12–38.
(a) AWF contends that the Prince Series works are “transformative,” and that the first fair use factor thus weighs in AWF‘s favor, because the works convey a different meaning or message than the photograph. But the first fair use factor instead focuses on whether an allegedly infringing use has a further purpose or different character, which is a matter of degree, and the degree of difference must be weighed against other considerations, like commercialism. Although new expression, meaning, or message may be relevant to whether a copying use has a sufficiently distinct purpose or character, it is not, without more, dispositive of the first factor. Here, the specific use of Goldsmith‘s photograph alleged to infringe her copyright is AWF‘s licensing of Orange Prince to Condé Nast. As portraits of Prince used to depict Prince in magazine stories about Prince, the original photograph and AWF‘s copying use of it share substantially the same purpose. Moreover, AWF‘s use is of a commercial nature. Even though Orange Prince adds new expression to Goldsmith‘s photograph, in the context of the challenged use, the first fair use factor still favors Goldsmith. Pp. 12–27.
(1) The Copyright Act encourages creativity by granting to the creator of an original work a bundle of rights that includes the rights to reproduce the copyrighted work and to prepare derivative works.
The first fair use factor, “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit
The Court‘s decision in Campbell is instructive. In holding that parody may be fair use, the Court explained that “parody has an obvious claim to transformative value” because “it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one.” 510 U. S., at 579. The use at issue was 2 Live Crew‘s copying of Roy Orbison‘s song, “Oh, Pretty Woman,” to create a rap derivative, “Pretty Woman.” 2 Live Crew transformed Orbison‘s song by adding new lyrics and musical elements, such that “Pretty Woman” had a different message and aesthetic than “Oh, Pretty Woman.” But that did not end the Court‘s analysis of the first fair use factor. The Court found it necessary to determine whether 2 Live Crew‘s transformation rose to the level of parody, a distinct purpose of commenting on the original or criticizing it. Further distinguishing between parody and satire, the Court explained that “[p]arody needs to mimic an original to make its point, and so has some claim to use the creation of its victim‘s (or collective victims‘) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.” Id., at 580–581. More generally, when “commentary has no critical bearing on the substance or style of the original composition, . . . the claim to fairness in borrowing from another‘s work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger.” Id., at 580.
Campbell illustrates two important points. First, the fact that a use is commercial as opposed to nonprofit is an additional element of the first fair use factor. The commercial nature of a use is relevant, but not dispositive. It is to be weighed against the degree to which the use
In sum, if an original work and secondary use share the same or highly similar purposes, and the secondary use is commercial, the first fair use factor is likely to weigh against fair use, absent some other justification for copying. Pp. 13–20.
(2) The fair use provision, and the first factor in particular, requires an analysis of the specific “use” of a copyrighted work that is alleged to be “an infringement.”
(b) AWF contends that the purpose and character of its use of Goldsmith‘s photograph weighs in favor of fair use because Warhol‘s silkscreen image of the photograph has a different meaning or message. By adding new expression to the photograph, AWF says, Warhol made transformative use of it. Campbell did describe a transformative use as one that “alter[s] the first [work] with new expression, meaning, or
Even granting the District Court‘s conclusion that Orange Prince reasonably can be perceived to portray Prince as iconic, whereas Goldsmith‘s portrayal is photorealistic, that difference must be evaluated in the context of the specific use at issue. The purpose of AWF‘s recent commercial licensing of Orange Prince was to illustrate a magazine about Prince with a portrait of Prince. Although the purpose could be more specifically described as illustrating a magazine about Prince with a portrait of Prince, one that portrays Prince somewhat differently from Goldsmith‘s photograph (yet has no critical bearing on her photograph), that degree of difference is not enough for the first factor to favor AWF, given the specific context and commercial nature of the use. To hold otherwise might authorize a range оf commercial copying of photographs to be used for purposes that are substantially the same as those of the originals.
AWF asserts another related purpose of Orange Prince, which is to comment on the “dehumanizing nature” and “effects” of celebrity. No doubt, many of Warhol‘s works, and particularly his uses of repeated images, can be perceived as depicting celebrities as commodities. But even if such commentary is perceptible on the cover of Condé Nast‘s tribute to “Prince Rogers Nelson, 1958–2016,” on the occasion of the man‘s death, the asserted commentary is at Campbell‘s lowest ebb: It “has no critical bearing on” Goldsmith‘s photograph, thus the commentary‘s “claim to fairness in borrowing from” her work “diminishes accordingly (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 commentary “can stand on its own two feet and so requires justification for the very act of borrowing.” Id., at 581. Moreover, because AWF‘s copying of Goldsmith‘s photograph was for a commercial use so similar to the photograph‘s typical use, a particularly compelling justification is
(c) Goldsmith‘s original works, like those of other photographers, are entitled to copyright protection, even against famous artists. Such protection includes the right to prepare derivative works that transform the original. The use of a copyrighted work may nevertheless be fair if, among other things, the use has a purpose and character that is sufficiently distinct from the original. In this case, however, Goldsmith‘s 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 justification for its unauthorized use of the photograph. While the Court has cautioned that the four statutory fair use factors may not “be treated in isolation, one from another,” but instead all must be “weighed together, in light of the purposes of copyright,” Campbell, 510 U. S., at 578, here AWF challenges only the Court of Appeals’ determinations on the first fair use factor, and the Court agrees the first factor favors Goldsmith. P. 38.
11 F. 4th 26, affirmed.
SOTOMAYOR, J., delivered the opinion of the Court, in which THOMAS, ALITO, GORSUCH, KAVANAUGH, BARRETT, and JACKSON, JJ., joined. GORSUCH, J., filed a concurring opinion, in which JACKSON, J., joined. KAGAN, J., filed a dissenting opinion, in which ROBERTS, C. J., joined.
JUSTICE SOTOMAYOR delivered the opinion of the Court.
This copyright case involves not one, but two artists. The first, Andy Warhol, is well known. His images of products like Campbell‘s soup cans and of celebrities like Marilyn Monroe appear in museums around the world. Warhol‘s contribution to contemporary art is undeniable.
The second, Lynn Goldsmith, is less well known. But she too was a trailblazer. Goldsmith began a career in rock-and-roll photography when there were few women in the genre. Her award-winning concert and portrait images, however, shot to the top. Goldsmith‘s work appeared in Life, Time, Rolling Stone, and People magazines, not to mention the National Portrait Gallery and the Museum of Modern Art. She captured some of the 20th century‘s greatest rock stars: Bob Dylan, Mick Jagger, Patti Smith, Bruce Springsteen, and, as relevant here, Prince.
In 1984, Vanity Fair sought to license one of Goldsmith‘s Prince photographs for use as an “artist reference.” The magazine wanted the photograph to help illustrate a story about the musician. Goldsmith agreed, on the condition
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,”
I
Lynn Goldsmith is a professional photographer. Her specialty is concert and portrait photography of musicians. At age 16, Goldsmith got one of her first shots: an image of the Beatles’ “trendy boots” before the band performed live on The Ed Sullivan Show. S. Michel, Rock Portraits, N. Y. Times, Dec. 2, 2007, p. G64. Within 10 years, Goldsmith had photographed everyone from Led Zeppelin to James Brown (the latter in concert in Kinshasa, no less). At that time, Goldsmith “had few female peers.” Ibid. But she was
In 1981, Goldsmith convinced Newsweek magazine to hire her to photograph Prince Rogers Nelson, then an “up and coming” and “hot young musician.” 2 App. 315. Newsweek agreed, and Goldsmith took photos of Prince in concert at the Palladium in New York City and in her studio on West 36th Street. Newsweek ran one of the concert photos, together with an article titled “‘The Naughty Prince of Rock.‘” Id., at 320. Goldsmith retained the other photos. She hоlds copyright in all of them.
One of Goldsmith‘s studio photographs, a black and white portrait of Prince, is the original copyrighted work at issue in this case. See fig. 1, infra.
In 1984, Goldsmith, through her agency, licensed that photograph to Vanity Fair to serve as an “artist reference for an illustration” in the magazine. 1 App. 85. The terms of the license were that the illustration was “to be published in Vanity Fair November 1984 issue. It can appear one time full page and one time under one quarter page. No other usage right granted.” Ibid. Goldsmith was to receive $400 and a source credit.
To make the illustration, Vanity Fair hired pop artist Andy Warhol. Warhol was already a major figure in American art, known among other things for his silkscreen portraits of celebrities.1 From Goldsmith‘s photograph, Warhol
Figure 1. A black and white portrait photograph of Prince taken in 1981 by Lynn Goldsmith.
created a silkscreen portrait of Prince, which appeared alongside an article about Prince in the November 1984 issue of Vanity Fair. See fig. 2, infra. The article, titled “Purple Fame,” is primarily about the “sexual style” of the new celebrity and his music. Vanity Fair, Nov. 1984, p. 66. Goldsmith received her $400 fee, and Vanity Fair credited her for the “source photograph.” 2 App. 323, 325–326. Warhol received an unspecified amount.
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
Figure 2. A purple silkscreen portrait of Prince created in 1984 by Andy Warhol to illustrate an article in Vanity Fair.
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 possibility of reusing the 1984 Vanity Fair image for a special edition magazine that would commemorate Prince. Once AWF informed Condé Nast about the other Prince Series images, however, Condé Nast obtained a license to publish Orange
Figure 3. An orange silkscreen portrait of Prince on the cover of a special edition magazine published in 2016 by Condé Nast.
Prince instead. The magazine, titled “The Genius of Prince,” is a tribute to “Prince Rogers Nelson, 1958–2016.” It is “devoted to Prince.” 2 App. 352. Condé Nast paid AWF $10,000 for the license. Goldsmith received neither a fee nor a source credit.
Remember that Goldsmith, too, had licensed her Prince images to magazines such as Newsweek, to accompany a story about the musician, and Vanity Fair, to serve as an artist reference. But that was not all. Between 1981 and 2016, Goldsmith‘s photos of Prince appeared on or between the covers of People, Readers Digest, Guitar World, and Musician magazines. See, e.g., fig. 4, infra.
Figure 4. One of Lynn Goldsmith‘s photographs of Prince оn the cover of Musician magazine.
People magazine, in fact, paid Goldsmith $1,000 to use one of her copyrighted photographs in a special collector‘s edition, “Celebrating Prince: 1958–2016,” just after Prince died. People‘s tribute, like Condé Nast‘s, honors the life and music of Prince. Other magazines, including Rolling Stone and Time, also released special editions. See fig. 5, infra. All of them depicted Prince on the cover. All of them used a copyrighted photograph in service of that object. And all of them (except Condé Nast) credited the photographer.
Figure 5. Four special edition magazines commemorating Prince after he died in 2016.
When Goldsmith saw Orange Prince on the cover of Condé Nast‘s special edition magazine, she recognized her work. “It‘s the photograph,” she later testified. 1 App. 290. Orange Prince crops, flattens, traces, and colors the photo but otherwise does not alter it. See fig. 6, infra.
Figure 6. Warhol‘s orange silkscreen portrait of Prince superimposed on Goldsmith‘s portrait photograph.
Goldsmith notified AWF of her belief that it had infringed her copyright. AWF then sued Goldsmith and her agency for a declaratory judgment of noninfringement or, in the alternative, fair use. Goldsmith counterclaimed for infringement.
The District Court granted summary judgment for AWF. 382 F. Supp. 3d 312, 316 (SDNY 2019). The court considered the four fair use factors enumerated in
The Court of Appeals for the Second Circuit reversed and remanded. 11 F. 4th 26, 54 (2021). It held that all four fair use factors favored Goldsmith. On the first factor, “the purpose and character of the use,”
On the other three factors, the Court of Appeals found that the creative and unpublished nature of Goldsmith‘s photograph favored her, id., at 45; that the amount and substantiality of the portion taken (here, “the ‘essence‘” of the photograph) was not reasonable in relation to the purpose of the use, id., at 45–47; and that AWF‘s commercial licensing encroached on Goldsmith‘s protected market to license her photograph “to publications for editorial purposes and to other artists to create derivative works,” id., at 48–51.3 The court noted that there was “no material dispute that both Goldsmith and AWF have sought to license (and indeed have successfully licensed) their respective depictions of Prince to popular print magazines to accompany articles about him.” Id., at 49 (footnote omitted).
Finally, although the District Court had not reached the issue, the Court of Appeals rejected AWF‘s argument that the Prince Series works were not substantially similar to Goldsmith‘s photograph. See id., at 52–54.
Judge Jacobs concurred. He stressed that the Court of Appeals’ holding “d[id] not consider, let alone decide, whether the infringement here encumbers the original Prince Series works.” Id., at 54. Instead, “the only use at
This Court granted certiorari. 596 U. S. ___ (2022).
II
AWF does not challenge the Court of Appeals’ holding that Goldsmith‘s photograph and the Prince Series works are substantially similar. The question here is whether AWF can defend against a claim of copyright infringement because it made “fair use” of Goldsmith‘s photograph.
Although the Court of Appeals analyzed each fair use factor, the only question before this Court is whether the court below correctly held that the first factor, “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,”
But the first fair use factor instead focuses on whether an allegedly infringing use has a further purpose or different character, which is a matter of degree, and the degree of difference must be weighed against other considerations, like commercialism. Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569, 579 (1994). Although new expression may be relevant to whether a copying use has a sufficiently distinct purpose or character, it is not, without more, dispositive of the first factor.
Here, the specific use of Goldsmith‘s photograph alleged to infringe her copyright is AWF‘s licensing of Orange Prince to Condé Nast. As portraits of Prince used to depict
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
The Act, however, “reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.” Twentieth Century Music Corp. v. Aiken, 422 U. S. 151, 156 (1975). Copyright thus trades off the benefits of incentives to create against the costs of restrictions on copying. The Act, for example, limits the duration of copyright,
This balancing act between creativity and availability (including for use in new works) is reflected in one such limitation, the defense of “fair use.” In 1976, Congress codified
“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
“(2) the nature of the copyrighted work;
“(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
“(4) the effeсt of the use upon the potential market for or value of the copyrighted work.”
The fair use doctrine “permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Stewart v. Abend, 495 U. S. 207, 236 (1990) (internal quotation marks omitted). The Act‘s fair use provision, in turn, “set[s] forth general principles, the application of which requires judicial balancing, depending upon relevant circumstances.” Google LLC v. Oracle America, Inc., 593 U. S. ___, ___ (2021) (slip op., at 14). Because those principles apply across a wide range of copyrightable material, from books to photographs to software, fair use is a “flexible” concept, and “its application may well vary depending on context.” Id., at ___ (slip op., at 15). For example, in applying the fair use provision, “copyright‘s protection may be stronger where the copyrighted material . . . serves an artistic rather than a utilitarian function.” Ibid.
1
The first fair use factor is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.”
Consider the “purposes” listed in the preamble paragraph of
Not every instance will be clear cut, however. Whether a use shares the purpose or character of an original work, or instead has a further purpose or different character, is a matter of degree. Most copying has some further purpose,
A use that has a further purpose or different character is said to be “‘transformative.‘” Ibid. (quoting P. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1111 (1990) (hereinafter Leval)). As before, “transformativeness” is a matter of degree. See Campbell, 510 U. S., at 579. That is important because the word “transform,” though not included in
Distinguishing between parody (which targets an author or work for humor or ridicule) and satire (which ridicules society but does not necessarily target an author or work), the Court further explained that “[p]arody needs to mimic an original to make its point, and so has some claim to use the creation of its victim‘s (or collective victims‘) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.” Id., at 580–581. More generally, when “commentary has no criti
This discussion illustrates two important points: First, the fact that a use is commercial as opposed to nonprofit is an additional “element of the first factor.” Id., at 584. The commercial nature of the use is not dispositive. Ibid.; Google, 593 U. S., at ___ (slip op., at 27). But it is relevant. As the Court explained in Campbell, it is to be weighed against the degree to which the use has a further purpose or different character. See 510 U. S., at 579 (“[T]he more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh аgainst a finding of fair use“); see also id., at 580, 585.6
Second, the first factor also relates to the justification for the use. In a broad sense, a use that has a distinct purpose is justified because it furthers the goal of copyright, namely, to promote the progress of science and the arts, without diminishing the incentive to create. See id., at 579; Authors Guild v. Google, Inc., 804 F. 3d 202, 214 (CA2 2015) (Leval, J.) (“The more the appropriator is using the copied material for new, transformative purposes, the more it serves copyright‘s goal of enriching public knowledge and the less likely it is that the appropriation will serve as a substitute for the original or its plausible derivatives, shrinking the protected market opportunities of the copyrighted work“).
In a narrower sense, a use may be justified because copying is reasonably necessary to achieve the user‘s new purpose. Parody, for example, “needs to mimic an original to make its point.” Campbell, 510 U. S., at 580–581. Similarly, other commentary or criticism that targets an original work may have compelling reason to “‘conjure up‘” the original by borrowing from it. Id., at 588.7 An independent justification like this is particularly relevant to assessing fair use where an original work and copying use share the same or highly similar purposes, or where wide dissemination of a secondary work would otherwise run the risk of substitution for the original or licensed derivatives of it. See id., at 580, n. 14; Harper & Row, 471 U. S., at 557. Once again, the question of justification is one of degree. See Leval 1111 (“[I]t is not sufficient simply to conclude whether or not justification exists. The question remains how powerful, or persuasive, is the justification, because the court must weigh the strength of the secondary user‘s justification against factors favoring the copyright owner“).
In sum, the first fair use factor considers whether the use of a copyrighted work has a further purpose or different character, which is a matter of degree, and the degree of
2
The fair use provision, and the first factor in particular, requires an analysis of the specific “use” of a copyrighted work that is alleged to be “an infringement.”
Here, Goldsmith‘s copyrighted photograph has been used in multiple ways: After Goldsmith licensed the photograph to Vanity Fair to serve as an artist reference, Warhol used the photograph to create the Vanity Fair illustration and the other Prince Series works. Vanity Fair then used the photograph, pursuant to the license, when it published Warhol‘s illustration in 1984. Finally, AWF used the photograph when it licensed an image of Warhol‘s Orange Prince to Condé Nast in 2016. Only that last use, however, AWF‘s commercial licensing of Orange Prince to Condé Nast, is alleged to be infringing.9 We limit our analysis accordingly. In particular, the Court expresses no opinion as to the creation, display, or sale of any of the original Prince Series works.10
In 2016, AWF licensed an image of Orange Prince to Condé Nast to appear on the cover of a commemorative edition magazine about Prince. The edition, titled “The Genius of Prince,” celebrates the life and work of “Prince Rogers Nelson, 1958–2016.” It is undisputed here that the edition is “devoted to Prince.” 2 App. 352. In addition to AWF‘s image on the cover, the magazine contains numerous concert and studio photographs of Prince. In that context, the purpose of the image is substantially the same as that of Goldsmith‘s photograph. Both are portraits of Prince used
The use also “is of a commercial nature.”
Taken together, these two elements—that Goldsmith‘s photograph and AWF‘s 2016 licensing of Orange Prince share substantially the same purpose, and that AWF‘s use of Goldsmith‘s photo was of a commercial nature—counsel against fair use, absent some other justification for copying. That is, although a use‘s transformativeness may outweigh its commercial charaсter, 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
Yet not all of Warhol‘s works, nor all uses of them, give rise to the same fair use analysis. In fact, Soup Cans well illustrates the distinction drawn here. The purpose of Campbell‘s logo is to advertise soup. Warhol‘s canvases do
Figure 7. A print based on the Campbell‘s soup can, one of Warhol‘s works that replicates a copyrighted advertising logo.
Moreover, a further justification for Warhol‘s use of Campbell‘s logo is apparent. His Soup Cans series targets the logo. That is, the original copyrighted work is, at least in part, the object of Warhol‘s commentary. It is the very nature of Campbell‘s copyrighted logo—well known to the public, designed to be reproduced, and a symbol of an 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 original work to “she[d] light” on the work itself, not just the subject of the work. Campbell, 510 U. S., at 579, 588.16
Here, by contrast, AWF‘s use of Goldsmith‘s photograph does not target the photograph, nor has AWF offered another compelling justification for the use. See infra, at 34–35, and nn. 20–21.
AWF contends, however, that the purpose and character of its use of Goldsmith‘s photograph weighs in favor of fair use because Warhol‘s silkscreen image of the photograph, like the Campbell‘s Soup Cans series, has a new meaning or message. The District Court, for example, understood the Prince Series works to portray Prince as “an iconic, larger-than-life figure.” 382 F. Supp. 3d, at 326. AWF also asserts that the works are a comment on celebrity. In particular, “Warhol‘s Prince Series conveys the dehumanizing nature of celebrity.” Brief for Petitioner 44. According to AWF, that new meaning or message, which the Court of Appeals ignored, makes the use “transformative” in the fair use sense. See id., at 44–48. We disagree.
1
Campbell did describe a transformative use as one that “alter[s] the first [work] with new expression, meaning, or message.” 510 U. S., at 579; see also Google, 593 U. S., at ___ (slip op., at 24). That description paraphrased Judge Leval‘s law review article, which referred to “new information, new aesthetics, new insights and understandings.” Leval 1111. (Judge Leval contrasted such additions with secondary uses that “merely repackag[e]” the original. Ibid.) But Campbell cannot be read to mean that
Otherwise, “transformative use” would swallow the copyright owner‘s exclusive right to prepare derivative works. Many derivative works, including musical arrangements, film and stage adaptions, sequels, spinoffs, and others that “recast, transfor[m] or adap[t]” the original,
Campbell is again instructive. 2 Live Crew‘s version of Orbison‘s song easily conveyed a new meaning or message. It also had a different aesthetic. Yet the Court went further, examining whether and to what extent 2 Live Crew‘s song had the parodic purpose of “commenting on the original or criticizing it.” 510 U. S., at 583. Parody is, of course, a kind of message. Moreover, the Court considered what the words of the songs might have meant to determine whether parody “reasonably could be perceived.” Ibid. But new meaning or message was not sufficient. If it had been, the Court could have made quick work of the first fair use factor. Instead, meaning or message was simply relevant to whether the new use served a purpose distinct from the original, or instead superseded its objects. That was, and is, the “central” question under the first factor. Id., at 579.
What role meaning or message played in the Court of Appeals’ analysis here is not entirely clear. The court correctly
Elsewhere, however, the Court of Appeals stated that “the district judge should not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue.” Id., at 41. That statement is correct in part. A court should not attempt to evaluate the artistic significance of a particular work. See Bleistein v. Donaldson Lithographing Co., 188 U. S. 239, 251 (1903) (Holmes, J.) (“It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [a work], outside of the narrowest and most obvious limits“).19 Nor does the subjective intent of
2
The District Court determined that “[t]he Prince Series works can reasonably be perceived to have transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure.” 382 F. Supp. 3d, at 326. To make that determination, the District Court relied, in part, on testimony by Goldsmith that her photographs of Prince show that he “is ‘not a comfortable person’ and that he is ‘a vulnerable human being.‘” Ibid. An expert on Warhol, meanwhile, testified that the Prince Series works depict “Prince as a kind of icon or totem of something,” a “mask-like simulacrum of his actual existence.” 1 App. 249, 257.
The Court of Appeals noted, correctly, that “whether a work is transformative cannot turn merely on the stated or perceived intent of the artist or the meaning or impression that a critic—or for that matter, a judge—draws from the work.” 11 F. 4th, at 41. “[O]therwise, the law may well
Granting the District Court‘s conclusion that Orange Prince reasonably can be perсeived to portray Prince as iconic, whereas Goldsmith‘s portrayal is photorealistic, that difference must be evaluated in the context of the specific use at issue. The use is AWF‘s commercial licensing of Orange Prince to appear on the cover of Condé Nast‘s special commemorative edition. The purpose of that use is, still, to illustrate a magazine about Prince with a portrait of Prince. Although the purpose could be more specifically described as illustrating a magazine about Prince with a portrait of Prince, one that portrays Prince somewhat differently from Goldsmith‘s photograph (yet has no critical bearing on her photograph), that degree of difference is not enough for the first factor to favor AWF, given the specific context of the use.
To hold otherwise would potentially authorize a range of commercial copying of photographs, to be used for purposes that are substantially the same as those of the originals. As long as the user somehow portrays the subject of the photograph differently, he could make modest alterations to the original, sell it to an outlet to accompany a story about the subject, and claim transformative use. Many photographs will be open to various interpretations. A subject as open to interpretation as the human face, for example, reasonably can be perceived as conveying several possible meanings. The application of an artist‘s characteristic style to bring out a particular meaning that was available in the photograph is less likely to constitute a “further purpose” as Campbell used the term. 510 U. S., at 579.
Copying might have been helpful to convey a new meaning or message. It often is. But that does not suffice under the first factor. Nor does it distinguish AWF from a long list of would-be fair users: a musician who finds it helpful to sample another artist‘s song to make his own, a playwright who finds it helpful to adapt a novel, or a filmmaker who would prefer to create a sequel or spinoff, to name just a few.22 As Judge Leval has explained, “[a] secondary author is not necessarily at liberty to make wholesale takings of the original author‘s expression merely because of how well the original author‘s expression would convey the secondary author‘s different message.” Authors Guild, 804 F. 3d, at 215.
The dissent would rather not debate these finer points. See post, at 4, n. 2 (opinion of Kagan, J.). It offers no theory of the relationship between transformative uses of original works and derivative works that transform originals. No reason why AWF was justified in using Goldsmith‘s original work in this specific instance. And no limiting principle for its apparent position that any use that is creative prevails under the first fair use factor. Instead, the dissent makes the simple (and obvious) point that restrictions on copying can inhibit follow-on works. “‘Nothing comes from nothing,‘” the dissent observes, “‘nothing ever could.‘” Post, at 11. So somewhere in the copyright statute, there must be an “escape valve” to create something good. Post, at 12. If AWF must pay Goldsmith to use her creation, the dissent claims, this will “stifle creativity of every sort,” “thwart the expression of new ideas and the attainment of new knowledge,” and “make our world poorer.” Post, at 36.
These claims will not age well. It will not impoverish our world to require AWF to pay Goldsmith a fraction of the proceeds from its reuse of her copyrighted work. Recall, payments like these are incentives for artists to create original works in the first place. Nor will the Court‘s decision, which is consistent with longstanding principles of fair use, snuff out the light of Western civilization, returning us to the Dark Ages of a world without Titian, Shakespeare, or Richard Rodgers. The dissent goes on at length about the basic premise that copyright (like other forms of intellectual property) involves a tradeoff between stimulating innovative activity, on the one hand, and allowing follow-on innovation, on the other. See post, at 11–12, and n. 4, 24–35. This theme will be familiar to any student of copyright law. In tracing the history of Renaissance painting, however, the dissent loses sight of the statute and this Court‘s cases. The Lives of the Artists undoubtedly makes for livelier reading
The dissent thus misses the forest for a tree. Its single-minded focus on the value of copying ignores the value of original works. It ignores the statute‘s focus on the specific use alleged to be infringing. See n. 10, supra. It waves away the statute‘s concern for derivative works. Supra, at 28–29, and n. 17. It fails to appreciate Campbell‘s nuance. Supra, at 29–30, 34, n. 21. And it disregards this Court‘s repeated emphasis on justification. Supra, at 29–30, and n. 18, 34, n. 21.
The result of these omissions is an account of fair use that is unbalanced in theory and, perhaps relatedly, in tone. The dissent‘s conclusion—that whenever a use adds new meaning or message, or constitutes creative progress in the oрinion of a critic or judge, the first fair use factor weighs in its favor—does not follow from its basic premise. Fair use instead strikes a balance between original works and secondary uses based in part on objective indicia of the use‘s purpose and character, including whether the use is commercial and, importantly, the reasons for copying.
Finally, copyright law is replete with escape valves: the idea–expression distinction; the general rule that facts may not receive protection; the requirement of originality; the legal standard for actionable copying; the limited duration of copyright; and, yes, the defense of fair use, including all its factors, such as whether the amount taken is reasonable in relation to the purpose of the use. These doctrines (and others) provide ample space for artists and other creators to use existing materials to make valuable new works. They account for most, if not all, of the examples given by the dissent, as well as the dissent‘s own copying (and the Court‘s, too). If the last century of American art, literature, music, and film is any indication, the existing copyright law, of which today‘s opinion is a continuation, is a powerful engine of creativity.
Lynn Goldsmith‘s original works, like those of other photographers, are entitled to copyright protection, even against famous artists. Such protection includes the right to prepare derivative works that transform the original. The use of a copyrighted work may nevertheless be fair if, among other things, the use has a purpose and character that is sufficiently distinct from the original. In this case, however, Goldsmith‘s original photograph of Prince, and AWF‘s copying use of that photograph in an image licensed to a special edition magazine devoted to Prince, share substantially the same purpose, and the use is of a commercial nature. AWF has offered no other persuasive justification for its unauthorized use of the photograph. Therefore, the “purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,”
The Court has cautioned that the four statutory fair use factors may not “be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright.” Campbell, 510 U. S., at 578. AWF does not challenge the Court of Appeals’ determinations that the second factor, “the nature of the copyrighted work,”
Affirmed.
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.
The question before us is a narrow one of statutory interpretation. It concerns the meaning of one of four factors Congress has instructed courts to consult when a party invokes the affirmative defense of “fair use” to a claim of copyright infringement. The statutory factor in question requires courts to consider “the purpose and character of the use.”
On the Foundation‘s telling, the statute requires courts to focus on the purpose the creator had in mind when producing his work and the character of his resulting work. So what matters in this case is that Andy Warhol intended to apply a “‘new aesthetic‘” to Lynn Goldsmith‘s photograph and the character of his work “‘transformed‘” Prince from the “‘vulnerable, uncomfortable person‘” depicted in Ms. Goldsmith‘s photograph into “‘an iconic, larger-than-life figure.‘” Ante, at 9–10; post, at 7–10, 18 (Kagan, J., dissenting). Because the purpose and character of Mr. Warhol‘s work is so different from Ms. Goldsmith‘s, the Foundation insists, the first statutory factor points in favor of finding a fair-use affirmative defense.
By contrast, on Ms. Goldsmith‘s reading of the law and
As I see it, the second view of the law is the better one. Nothing in the copyright statute calls on judges to speculate about the purpose an artist may have in mind when working on a particular project. Nothing in the law requires judges to try their hand at art criticism and assess the aesthetic character of the resulting work. Instead, the first statutory fair-use factor instructs courts to focus on “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.”
To my mind, three contextual clues confirm that this reading of the statutory text is the correct one.
First, the statutory preamble to all four fair-use factors instructs courts to assess whether the person asserting a fair-use dеfense seeks to “use” a copyrighted work “for purposes such as criticism, comment, news reporting, teaching
Second, the copyright statute expressly protects a copyright holder‘s exclusive right to create “derivative works” that “transfor[m]” or “adap[t]” his original work.
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.”
With all this in mind, the Court‘s decision seems to me exactly right. Does Mr. Warhol‘s image seek to depict Prince as a “larger-than-life” icon while Ms. Goldsmith‘s photograph attempts to cast him in a more “vulnerable” light? See ante, at 28–35; post, at 9–10, 35 (Kagan, J., dissenting). Or are the artistic purposes latent in the two images and their aesthetic character actually more similar than that? Happily, the law does not require judges to tangle with questions so far beyond our competence. Instead, the first fair-use factor requires courts to assess only whether the purpose and character of the challenged use is the same as a protected use. And here, the undisputed facts reveal that the Foundation sought to use its image as a commercial substitute for Ms. Goldsmith‘s photograph. Of course, competitive products often differ in material respects and a buyer may find these differences reason to prefer one offering over another. Cf. post, at 10, 18 (Kagan, J., dissenting). But under the first fair-use factor the salient point is that the purpose and character of the Foundation‘s use involved competition with Ms. Goldsmith‘s image. To know that much is to know the first fair-use factor favors Ms. Goldsmith.
It is equally important, however, to acknowledge what this case does not involve and what the Court does not decide. Worried about the fate of artists seeking to portray reclining nudes or papal authorities, or authors hoping to
That observation points the way to another. The Court today does not even decide whether the Foundation‘s image of Prince infringes on Ms. Goldsmith‘s copyright. To uphold a claim of infringement under the Copyright Act, a court must find the defendant copied elements of the plaintiff‘s work that are themselves original. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U. S. 340, 361 (1991). As part of this process, a court must isolate and vindicate only the truly original elements of a copyrighted work. See 2 Nimmer on Copyright §8.01[D] (2022). The plaintiff must usually show not only a similarity but a “substantial” similarity between the allegedly infringing work and the original elements of his own copyrighted work. See 4 Nimmer on Copyright §13.03[A] (2023). And even when two works are substantially similar, if both the plaintiff‘s and the defendant‘s works copy from a third source (reworking, say, a traditional artistic or literary theme), a claim for infringement generally will not succeed. See 2 Nimmer on Copyright §8.01[C]. In this case, we address none of these questions or other elements of the infringement standard designed to ensure room for later artists to build on the work of their predecessors. The district court concluded that it “need not address” the merits of Ms. Goldsmith‘s infringement claim because the Foundation could prevail at summary judgment on its affirmative defense of fair use.
Last but hardly least, while our interpretation of the first fair-use factor does not favor the Foundation in this case, it may in others. If, for example, the Foundation had sought to display Mr. Warhol‘s image of Prince in a nonprofit museum or a for-profit book commenting on 20th-century art, the purpose and character of that use might well point to fair use. But those cases are not this case. Before us, Ms. Goldsmith challenges only the Foundation‘s effort to use its portrait as a commercial substitute for her own protected photograph in sales to magazines looking for images of Prince to accompany articles about the musician. And our only point today is that, while the Foundation may often have a fair-use defense for Mr. Warhol‘s work, that does not mean it always will. Under the law Congress has given us, each challenged use must be assessed on its own terms.
Today, the Court declares that Andy Warhol‘s eye-popping silkscreen of Prince—a work based on but dramatically altering an existing photograph—is (in copyright lingo) not “transformative.” Still more, the Court decides that even if Warhol‘s portrait were transformative—even if its expression and meaning were worlds away from the photo—that fact would not matter. For in the majority‘s view, copyright law‘s first fair-use factor—addressing “the purpose and character” of “the use made of a work“—is uninterested in the distinctiveness and newness of Warhol‘s portrait.
You‘ve probably heard of Andy Warhol; you‘ve probably seen his art. You know that he reframed and reformulated—in a word, transformed—images created first by others. Campbell‘s soup cans and Brillo boxes. Photos of celebrity icons: Marilyn, Elvis, Jackie, Liz—and, as most
What is worse, that refresher course would apparently be insufficient. For it is not just that the majority does not realize how much Warhol added; it is that the majority does not care. In adopting that posture of indifference, the majority does something novel (though in law, unlike in art, it is rarely a good thing to be transformative). Before today, we assessed “the purpose and character” of a copier‘s use by asking the following question: Does the work “add[] something new, with a further purpose or different character, altering the [original] with new expression, meaning, or message“? Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569, 579 (1994); see Google, 593 U. S., at ___ (slip op., at 24). When it did so to a significant degree, we called the work “transformative” and held that the fair-use test‘s first factor favored the copier (though other factors could outweigh that one). But today‘s decision—all the majority‘s prоtestations notwithstanding—leaves our first-factor inquiry in shambles. The majority holds that because Warhol licensed his work to a magazine—as Goldsmith sometimes also did—the first factor goes against him. See, e.g., ante, at 35. It does
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.
I
A
Andy Warhol is the avatar of transformative copying. Cf. Google, 593 U. S., at ___–___ (slip op., at 24–25) (selecting Warhol, from the universe of creators, to illustrate what transformative copying is). In his early career, Warhol worked as a commercial illustrator and became experienced in varied techniques of reproduction. By night, he used those techniques—in particular, the silkscreen—to create his own art. His own—even though in one sense not. The silkscreen enabled him to make brilliantly novel art out of existing “images carefully selected from popular culture.” D. De Salvo, God Is in the Details, in Andy Warhol Prints 22 (4th rev. ed. 2003). The works he produced, connecting traditions of fine art with mass culture, depended on “appropriation[s]“: The use of “elements of an extant image[] is Warhol‘s entire modus operandi.” B. Gopnik, Artistic Appropriation vs. Copyright Law, N. Y. Times, Apr. 6, 2021, p. C4 (internal quotation marks omitted). And with that m.o., he changed modern art; his appropriations and his originality were flipsides of each other. To a public accustomed to thinking of art as formal works “belong[ing] in
To see the method in action, consider one of Warhol‘s pre-Prince celebrity silkscreens—this one, of Marilyn Monroe. He began with a publicity photograph of the actress. And then he went to work. He reframed the image, zooming in on Monroe‘s face to “produc[e] the disembodied effect of a cinematic close-up.” 1 App. 161 (expert declaration).
At that point, he produced a high-contrast, flattened image on a sheet of clear acetate. He used that image to trace an outline on the canvas. And he painted on top—applying exotic colors with “a flat, even consistency and an industrial appearance.” Id., at 165. The same high-contrast image was then reproduced in negative on a silkscreen, designed
Andy Warhol, Marilyn, 1964, acrylic and silkscreen ink on linen
And the meaning is different from any the photo had. Of course, meaning in great art is contestable and contested (as is the premise that an artwork is great). But note what some experts say about the complex message(s) Warhol‘s Marilyns convey. On one level, those vivid, larger-than-life paintings are celebrity iconography, making a “secular, profane subject[]” “transcendent” and “eternal.” Id., at 209 (internal quotation marks omitted). But they also function as a biting critique of the cult of celebrity, and the role it plays
As with Marilyn, similarly with Prince. In 1984, Vanity Fair commissioned Warhol to create a portrait based on a black-and-white photograph taken by noted photographer Lynn Goldsmith:
As he did in the Marilyn series, Warhol cropped the photo, so that Prince‘s head fills the whole frame: It thus becomes “disembodied,” as if “magically suspended in space.” Id., at
Andy Warhol, Prince, 1984, synthetic paint and silkscreen ink on canvas
A thought experiment may pound the point home. Suppose you were the editor of Vanity Fair or Condé Nast, publishing an article about Prince. You need, of course, some kind of picture. An employee comes to you with two options: the Goldsmith photo, the Warhol portrait. Would you say that you don‘t really care? That the employee is free to flip a coin? In the majority‘s view, you apparently would. Its opinion, as further discussed below, is built on the idea that both are just “portraits of Prince” that may equivalently be “used to depict Prince in magazine stories about Prince.” Ante, at 12–13; see ante, at 22–23, and n. 11, 27, n. 15, 33, 35. All I can say is that it‘s a good thing the majority isn‘t in the magazine business. Of course you would care! You would be drawn aesthetically to one, or instead to the other. You would want to convey the message of one, or instead of the other. The point here is not that one is better and the other worse. The point is that they are fundamentally different. You would see them not as “substitute[s],” but as divergent ways to (in the majority‘s mantra) “illustrate a magazine about Prince with a portrait of Prince.” Ante, at 15, 33; see ante, at 22–23, and n. 11, 27, n. 15, 35. Or else you (like the majority) would not have much of a future in magazine publishing.
In any event, the editors of Vanity Fair and Condé Nast understood the difference—the gulf in both aesthetics and meaning—between the Goldsmith photo and the Warhol portrait. They knew about the photo; but they wanted the portrait. They saw that as between the two works, Warhol had effected a transformation.
B
The question in this case is whether that transformation should matter in assessing whether Warhol made “fair use” of Goldsmith‘s copyrighted photo. The answer is yes—it should push toward (although not dictate) a finding of fair
Start by asking a broader question: Why do we have “fair use” anyway? The majority responds that while copyrights encourage the making of creative works, fair use promotes their “public availability.” Ante, at 13 (internal quotation marks omitted). But that description sells fair use far short. Beyond promoting “availability,” fair use itself advances creativity and artistic progress. See Campbell, 510 U. S., at 575, 579 (fair use is “necessary to fulfill copyright‘s very purpose”—to “promote science and the arts”). That is because creative work does not happen in a vacuum. “Nothing comes from nothing, nothing ever could,” said songwriter Richard Rodgers, maybe thinking not only about love and marriage but also about how the Great American Songbook arose from vaudeville, ragtime, the blues, and jazz.4 This Court has long understood the point—has gotten how new art, new invention, and new knowledge arise from existing works. Our seminal opinion on fair use quoted the illustrious Justice Story:
“In truth, in literature, in science and in art, there are, and can be, few, if any, things, which . . . are strictly
new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.” Id., at 575 (quoting Emerson v. Davies, 8 F. Cas. 615, 619 (No. 4,436) (CC Mass. 1845)).
Because that is so, a copyright regime with no escape valves would “stifle the very creativity which [the] law is designed to foster.” Stewart, 495 U. S., at 236. Fair use is such an escape valve. It “allow[s] others to build upon” copyrighted material, so as not to “put manacles upon” creative progress. Campbell, 510 U. S., at 575 (internal quotation marks omitted). In short, copyright‘s core value—promoting creativity—sometimes demands a pass for copying.
To identify when that is so, the courts developed and Congress later codified a multi-factored inquiry. As the majority describes, see ante, at 14, the current statute sets out four non-exclusive considerations to guide courts. They are: (1) “the purpose and character of the use” made of the copyrighted work, “including whether such use is of a commercial nature”; (2) “the nature of the copyrighted work”; (3) “the amount and substantiality of the portion used in relation to the copyrighted work as a whole”; and (4) “the effect of the use upon the potential market for or value of the copyrighted work.”
And that factor is distinctive: It is the only one that focuses on what the copier‘s use of the original work accomplishes. The first factor asks about the “character” of that use—its “main or essential nature[,] esp[ecially] as strongly marked and serving to distinguish.” Webster‘s Third New International Dictionary 376 (1976). And the first factor asks about the “purpose” of the use—the “object, effect, or result aimed at, intended, or attained.” Id., at 1847. In that way, the first factor gives the copier a chance to make his case. See P. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1116 (1990) (describing factor 1 as “the soul of” the “fair use defense”). Look, the copier can say, at how I altered the original, and what I achieved in so doing. Look at how (as Judge Leval‘s seminal article put the point) the original was “used as raw material” and was “transformed
Don‘t take it from me (or Judge Leval): The above is exactly what this Court has held about how to apply factor 1. In Campbell, our primary case on the topic, we stated that the first factor‘s purpose-and-character test “central[ly]” concerns “whether and to what extent the new work is ‘transformative.’” 510 U. S., at 579 (quoting Leval 1111). That makes sense, we explained, because “the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.” 510 U. S., at 579. We then expounded on when such a transformation happens. Harking back to Justice Story, we explained that a “new work” might “merely ‘supersede[] the objects’ of the original creation”—meaning, that it does no more, and for no other end, than the first work had. Ibid. (quoting Folsom v. Marsh, 9 F. Cas. 342, 348 (No. 4,901) (CC Mass. 1841)). But alternatively, the new work could “add[] something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” 510 U. S., at 579. Forgive me, but given the majority‘s stance (see, e.g., ante, at 33), that bears repeating: The critical factor 1 inquiry, we held, is whether a new work alters the first with “new expression, meaning, or message.” The more it does so, the more transformative the new work. And (here is the final takeaway) “the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” 510 U. S., at 579. Under that approach, the Campbell Court held, the rap group 2 Live Crew‘s “transformative” copying of Roy Orbison‘s “Pretty Woman” counted in favor
Just two Terms ago, in Google, we made all the same points. We quoted Campbell in explaining that the factor 1 inquiry is “whether the copier‘s use ‘adds something new, with a further purpose or different character, altering’ the copyrighted work ‘with new expression, meaning, or message.’” 593 U. S., at ___ (slip op., at 24). We again described “a copying use that adds something new and important” as “transformative.” Ibid. We reiterated that protecting transformative uses “stimulate[s] creativity” and thus “fulfill[s] the objective of copyright law.” Ibid. (quoting Leval 1111). And then we gave an example. Yes, of course, we pointed to Andy Warhol. (The majority claims not to be embarrassed by this embarrassing fact because the specific reference was to his Soup Cans, rather than his celebrity images. But drawing a distinction between a “commentary on consumerism”—which is how the majority describes his soup canvases, ante, at 27—and a commentary on celebrity culture, i.e., the turning of people into consumption items, is slicing the baloney pretty thin.) Finally, the Court conducted the first-factor inquiry it had described. Google had replicated Sun Microsystems’ computer code as part of a “commercial endeavor,” done “for commercial profit.” 593 U. S., at ___ (slip op., at 27). No matter, said the Court. “[M]any common fair uses are indisputably commercial.” Ibid. What mattered instead was that Google had used Sun‘s code to make “something new and important”: a “highly creative and innovative” software platform. Id., at ___–___ (slip op., at 24–25). The use of the code, the Court held, was therefore “transformative” and “point[ed] toward fair use.” Id., at ___, ___ (slip op., at 25, 28).
Campbell and Google also illustrate the difference it can make in the world to protect transformative works through fair use. Easy enough to say (as the majority does, see ante,
Now recall all the ways Warhol, in making a Prince portrait from the Goldsmith photo, “add[ed] something new, with a further purpose or different character”—all the ways he “alter[ed] the [original work‘s] expression, meaning, [and] message.” Ibid. The differences in form and appearance, relating to “composition, presentation, color palette, and media.” 1 App. 227; see supra, at 7–10. The differences in meaning that arose from replacing a realistic—and indeed humanistic—depiction of the performer with an unnatural, disembodied, masklike one. See ibid. The conveyance of new messages about celebrity culture and its personal and societal impacts. See ibid. The presence of, in a word, “transformation”—the kind of creative building that copyright exists to encourage. Warhol‘s use, to be sure, had a commercial aspect. Like most artists, Warhol did not want to hide his works in a garret; he wanted to sell them. But as Campbell and Google both demonstrate (and as fur
II
The majority does not see it. And I mean that literally. There is precious little evidence in today‘s opinion that the majority has actually looked at these images, much less that it has engaged with expert views of their aesthetics and meaning. Whatever new expression Warhol added, the majority says, was not transformative. See ante, at 25. Apparently, Warhol made only “modest alterations.” Ante, at 33. Anyone, the majority suggests, could have “crop[ped], flatten[ed], trace[d], and color[ed] the photo” as Warhol did. Ante, at 8. True, Warhol portrayed Prince “somewhat differently.” Ante, at 33. But the “degree of difference” is too small: It consists merely in applying Warhol‘s “characteristic style”—an aesthetic gloss, if you will—“to bring out a particular meaning” that was already “available in [Goldsmith‘s] photograph.” Ibid. So too, Warhol‘s commentary on celebrity culture matters not at all; the majority is not willing to concede that it even exists. See ante, at 34 (“even
The description is disheartening. It‘s as though Warhol is an Instagram filter, and a simple one at that (e.g., sepia-tinting). “What is all the fuss about?,” the majority wants to know. Ignoring reams of expert evidence—explaining, as every art historian could explain, exactly what the fuss is about—the majority plants itself firmly in the “I could paint that” school of art criticism. No wonder the majority sees the two images as essentially fungible products in the magazine market—publish this one, publish that one, what does it matter? See ante, at 22–23; supra, at 10. The problem is that it does matter, for all the reasons given in the record and discussed above. See supra, at 9–10. Warhol based his silkscreen on a photo, but fundamentally changed its character and meaning. In belittling those creative contributions, the majority guarantees that it will reach the wrong result.
Worse still, the majority maintains that those contributions, even if significant, just would not matter. All of Warhol‘s artistry and social commentary is negated by one thing: Warhol licensed his portrait to a magazine, and Goldsmith sometimes licensed her photos to magazines too. That is the sum and substance of the majority opinion. Over and over, the majority incants that “[b]oth [works] are portraits of Prince used in magazines to illustrate stories about Prince”; they therefore both “share substantially the same purpose”—meaning, a commercial one. Ante, at 22–23, 38; see ante, at 12–13, 27, n. 15, 33, 35. Or said otherwise, because Warhol entered into a licensing transaction with Condé Nast, he could not get any help from factor 1—
From top-to-bottom, the analysis fails. It does not fit the copyright statute. It is not faithful to our precedent. And it does not serve the purpose both Congress and the Court have understood to lie at the core of fair use: “stimulat[ing] creativity,” by enabling artists and writers of every description to build on prior works. Google, 593 U. S., at ___ (slip op., at 24). That is how art, literature, and music happen; it is also how all forms of knowledge advance. Even as the majority misconstrues the law, it misunderstands—and threatens—the creative process.
Start with what the statute tells us about whether the factor 1 inquiry should disregard Warhol‘s creative contributions because he licensed his work. (Sneak preview: It shouldn‘t.) The majority claims the text as its strong suit, viewing our precedents’ inquiry into new expression and meaning as a faulty “paraphrase” of the statutory language. Ante, at 28–30. But it is the majority, not Campbell and Google, that misreads §107(1). First, the key term “character” plays little role in the majority‘s analysis. See ante, at 12–13, 22–23, and n. 11, 29 (statements of central test or holding referring only to “purpose”). And you can see why, given the counter-intuitive meaning the majority (every so often) provides. See ante, at 24–25, and n. 14. When referring to the “character” of what Warhol did, the majority says merely that he “licensed Orange Prince to Condé Nast for $10,000.” See ante, at 24. But that reductionist view
Second, the majority significantly narrows §107(1)‘s reference to “purpose” (thereby paralleling its constriction of “character”). It might be obvious to you that artists have artistic purposes. And surely it was obvious to the drafters of a law aiming to promote artistic (and other kinds of ) creativity. But not to the majority, which again cares only about Warhol‘s decision to license his art. Warhol‘s purpose, the majority says, was just to “depict Prince in [a] magazine stor[y] about Prince” in exchange for money. Ante, at 12–13. The majority spurns all that mattered to the artist—evident on the face of his work—about “expression, meaning, [and] message.” Campbell, 510 U. S., at 579; Google, 593 U. S., at ___ (slip op., at 24). That indifference to purposes beyond the commercial—for what an artist, most fundamentally, wants to communicate—finds no support in §107(1).7
Still more, the majority‘s commercialism-über-alles view of the factor 1 inquiry fits badly with two other parts of the fair-use provision. To begin, take the preamble, which gives examples of uses often thought fair: “criticism, comment, news reporting, teaching[,] . . . scholarship, or research.”
Next, skip to the last factor in the fair-use test: “the effect of the use upon the potential market for or value of the copyrighted work.”
Is it possible I overstate the matter? I would like for that to be true. And a puzzling aspect of today‘s opinion is that it occasionally acknowledges the balance that the fair-use provision contemplates. So, for example, the majority notes after reviewing the relevant text that “the central question [the first factor] asks” is whether the new work “adds something new” to the copyrighted one. Ante, at 15 (internal quotation marks omitted). Yes, exactly. And in other places, the majority suggests that a court should consider in the factor 1 analysis not merely the commercial context but also the copier‘s addition of “new expression,” including new meaning or message. Ante, at 12; see ante, at 18, 24–25, n. 13, 25, 32. In that way, the majority opinion differs from JUSTICE GORSUCH‘s concurrence, which would exclude all inquiry into whether a follow-on work is transformative. See ante, at 2, 4. And it is possible lower courts will pick up on that difference, and ensure that the “newness” of a follow-on work will continue to play a significant role in the factor 1 analysis. If so, I‘ll be happy to discover that my “claims [have] not age[d] well.” Ante, at 36. But that would require courts to do what the majority does not: make a serious inquiry into the follow-on artist‘s creative contributions. The majority‘s refusal to do so is what creates the oddity at the heart of today‘s opinion. If “newness” matters (as the opinion sometimes says), then why does the majority
Certainly not because of our precedent—which conflicts with nearly all the majority says. As explained earlier, this Court has decided two important cases about factor 1. See supra, at 14–16. In each, the copier had built on the original to make a product for sale—so the use was patently commercial. And in each, that fact made no difference, because the use was also transformative. The copier, we held, had made a significant creative contribution—had added real value. So in Campbell, we did not ask whether 2 Live Crew and Roy Orbison both meant to make money by “including a catchy song about women on a record album.” But cf. ante, at 12–13 (asking whether Warhol and Goldsmith both meant to charge for “depict[ing] Prince in magazine stories about Prince”). We instead asked whether 2 Live Crew had added significant “new expression, meaning, [and] message”; and because we answered yes, we held that the group‘s rap song did not “merely supersede the objects of the original creation.” 510 U. S., at 579 (internal quotation marks and alteration omitted). Similarly, in Google, we took for granted that Google (the copier) and Sun (the original author) both meant to market software platforms facilitating the same tasks—just as (in the majority‘s refrain) Warhol and Goldsmith both wanted to market images depicting the same subject. See 593 U. S., at ___, ___ (slip op., at 25, 27). “So what?” was our basic response. Google‘s coрying had enabled the company to make a “highly creative and innovative tool,” advancing “creative progress” and thus serving “the basic constitutional objective of copyright.” Id., at ___ (slip op., at 25) (internal quotation marks omitted). Search today‘s opinion high and low, you will see
Nor does our precedent support the majority‘s strong distinction between follow-on works that “target” the original and those that do not. Ante, at 35. (Even the majority does not claim that anything in the text does so.) True enough that the rap song in Campbell fell into the former category: 2 Live Crew urged that its work was a parody of Orbison‘s song. But even in discussing the value of parody, Campbell made clear the limits of targeting‘s importance. The Court observed that as the “extent of transformation” increases, the relevance of targeting decreases. 510 U. S., at 581, n. 14. Google proves the point. The new work there did not parody, comment on, or otherwise direct itself to the old: The former just made use of the latter for its own devices. Yet that fact never made an appearance in the Court‘s opinion; what mattered instead was the “highly creative” use Google had made of the copied code. That decision is on point here. Would Warhol‘s work really have been more worthy of protection if it had (somehow) “she[d] light” on Goldsmith‘s photograph, rather than on Prince, his celebrity status, and celebrity culture? Ante, at 27. Would that Goldsmith-focused work (whatever it might be) have more meaningfully advanced creative progress, which is copyright‘s raison d‘être, than the work he actually made? I can‘t see how; more like the opposite. The majority‘s preference for the directed work, apparently on grounds of necessity, see ante, at 27, 34–35, again reflects its undervaluing of transformative copying as a core part of artistry.
And there‘s the rub. (Yes, that‘s mostly Shakespeare.) As Congress knew, and as this Court once saw, new creations come from building on—and, in the process, transforming—those coming before. Today‘s decision stymies and suppresses that process, in art and every other kind of creative endeavor. The decision enhances a copyright holder‘s power to inhibit artistic development, by enabling her to
The effect, moreover, will be dramatic. Return again to Justice Story, see supra, at 11–12: “[I]n literature, in science and in art, there are, and can be, few, if any, things” that are “new and original throughout.” Campbell, 510 U. S., at 575 (quoting Emerson, 8 F. Cas., at 619). Every work “borrows, and must necessarily” do so. 510 U. S., at 575. Creators themselves know that fact deep in their bones. Here is Mark Twain on the subject: “The kern[e]l, the soul—let us go further and say the substance, the bulk, the actual and valuable material” of creative works—all are “consciously and unconsсiously drawn from a million outside sources.” Letter from M. Twain to H. Keller, in 2 Mark Twain‘s Letters 731 (1917); see also id., at 732 (quoting Oliver Wendell Holmes—no, not that one, his father the poet—as saying “I have never originated anything altogether myself, nor met anybody who had”). “[A]ppropriation, mimicry, quotation, allusion and sublimated collaboration,” novelist Jonathan Lethem has explained, are “a kind of sine qua non of the creative act, cutting across all forms and genres in the realm of cultural production.” The
Consider, in light of those authorial references, how the majority‘s factor 1 analysis might play out in literature. And why not start with the best? Shakespeare borrowed over and over and over. See, e.g., 8 Narrative and Dramatic Sources of Shakespeare 351–352 (G. Bullough ed. 1975) (“Shakespeare was an adapter of other men‘s tales and plays; he liked to build a new construction on something given”). I could point to a whole slew of works, but let‘s take Romeo and Juliet as an example. Shakespeare‘s version copied most directly from Arthur Brooke‘s The Tragical History of Romeus and Juliet, written a few decades earlier (though of course Brooke copied from someone, and that person copied from someone, and that person . . . going back at least to Ovid‘s story about Pyramus and Thisbe). Shakespeare took plot, characters, themes, even passages: The friar‘s line to Romeo, “Art thou a man? Thy form cries out thou art,” appeared in Brooke as “Art thou a man? The shape saith so thou art.” Bullough 387. (Shakespeare was, among other things, a good editor.) Of course Shakespeare also added loads of genius, and so made the borrowed stories “uniquely Shakespearian.” G. Williams, Shakespeare‘s Basic Plot Situation, 2 Shakespeare Quarterly No. 4, p. 313 (Oct. 1951). But on the majority‘s analysis? The two works—Shakespeare‘s and Brooke‘s—are just two stories of star-crossed lovers written for commercial gain. Shakespeare would not qualify for fair use; he would not even
And if you think that‘s just Shakespeare, here are a couple more. (Once you start looking, examples are everywhere.) Lolita, though hard to read today, is usually thought one of the greatest novels of the 20th century. But the plotline—an adult man takes a room as a lodger; embarks on an obsessive sexual relationship with the preteen daughter of the house; and eventually survives her death, remaining marked forever—appears in a story by Heinz von Lichberg written a few decades earlier. Oh, and the girl‘s name is Lolita in both versions. See generally M. Maar, The Two Lolitas (2005). All that said, the two works have little in common artistically; nothing literary critics admire in the second Lolita is found in the first. But to the majority? Just two stories of revoltingly lecherous men, published for profit. So even factor 1 of the fair-use inquiry would not aid Nabokov. Or take one of the most famed adventure stories ever told. Here is the provenance of Treasure Island, as Robert Louis Stevenson himself described it:
“No doubt the parrot once belonged to Robinson Crusoe. No doubt the skeleton is conveyed from [Edgar Allan] Poe. I think little of these, they are trifles and details; and no man can hope to have a monopoly of skeletons or make a corner in talking birds. . . . It is my debt to Washington Irving that exercises my conscience, and justly so, for I believe plagiarism was rarely carried farther. . . . Billy Bones, his chest, the company in the parlor, the whole inner spirit and a good deal of the material detail of my first chapters—all were there, all were the property of Washington Irving.” My First Book—Treasure Island, in 21 Syracuse University Library Associates Courier No. 2, p. 84 (1986).
Odd that a book about pirates should have practiced piracy? Not really, because tons of books do—and not many in order
Or how about music? Positively rife with copying of all kinds. Suppose some early blues artist (W. C. Handy, perhaps?) had copyrighted the 12-bar, three-chord form—the essential foundation (much as Goldsmith‘s photo is to Warhol‘s silkscreen) of many blues songs. Under the majority‘s view, Handy could then have controlled—meaning, curtailed—the development of the genre. And also of a fair bit of rock and roll. “Just another rendition of 12-bar blues for sale in record stores,” the majority would say to Chuck Berry (Johnny B. Goode), Bill Haley (Rock Around the Clock), Jimi Hendrix (Red House), or Eric Clapton (Crossroads). Or to switch genres, imagine a pioneering classical composer (Haydn?) had copyrighted the three-section sonata form. “One more piece built on the same old structure, for use in concert halls,” the majority might say to Mozart and Beethoven and countless others: “Sure, some new notes, but the backbone of your compositions is identical.”
And then, there‘s the appropriation of those notes, and accompanying words, for use in new and different ways. Stravinsky reportedly said that great composers do not imitate, but instead steal. See P. Yates, Twentieth Century Music 41 (1967). At any rate, he would have known. He took music from all over—from Russian folk melodies to Schoenberg—and made it inimitably his own. And then—as these things go—his music became a source for others. Charlie Parker turned The Rite of Spring into something of a jazz standard: You can still hear the Stravinsky lurking, but jazz musicians make the composition a thing of a different kind. And popular music? I won‘t point fingers, but
“The great beаuty of contemporary music, and what gives it its edge and vitality, is its devil-may-care attitude toward appropriation—everybody is grabbing stuff from everybody else, all the time. It‘s a feeding frenzy of borrowed ideas that goes toward the advancement of rock music—the great artistic experiment of our era.” The Red Hand Files (Apr. 2020) (online source archived at https://www.supremecourt.gov).
But not as the majority sees the matter. Are these guys making money? Are they appropriating for some different reason than to critique the thing being borrowed? Then they‘re “shar[ing] the objectives” of the original work, and will get no benefit from factor 1, let alone protection from
Finally, back to the visual arts, for while Warhol may have been the master appropriator within that field, he had plenty of company; indeed, he worked within an established tradition going back centuries (millennia?). The representatives of three giants of modern art (you may know one for his use of comics) describe the tradition as follows: “[T]he use and reuse of existing imagery” are “part of art‘s lifeblood”—“not just in workaday practice or fledgling student efforts, but also in the revolutionary moments of art history.” Brief for Robert Rauschenberg, Roy Lichtenstein, and Joan Mitchell Foundations et al. as Amici Curiae 6.
Consider as one example the reclining nude. Probably the first such figure in Renaissance art was Giorgione‘s Sleeping Venus. (Note, though, in keeping with the “nothing comes from nothing” theme, that Giorgione apparently modeled his canvas on a woodcut illustration by Francesco Colonna.) Here is Giorgione‘s painting:
Giorgione, Sleeping Venus, c. 1510, oil on canvas
Titian, Venus of Urbino, 1538, oil on canvas
The majority would presumably describe these Renaissance canvases as just “two portraits of reclining nudes painted to sell to patrons.” Cf. ante, at 12–13, 22–23. But wouldn‘t that miss something—indeed, everything—about how an artist engaged with a prior work to create new expression and add new value?
And the reuse of past images was far from done. For here is Édouard Manet‘s Olympia, now considered a foundational work of artistic modernism, but referring in obvious ways to Titian‘s (and back a step, to Giorgione‘s) Venus:
Manet, Olympia, 1863, oil on canvas
Here again consider the account of the Rauschenberg, Lichtenstein, and Mitchell Foundations: “The revolutionary shock of the painting depends on how traditional imagery remains the painting‘s recognizable foundation, even as that imagery is transformed and wrenched into the present.” Brief as Amici Curiae 9. It is an especially striking example of a recurrent phenomenon—of how the development of visual art works across time and place, constantly building on what came earlier. In fact, the Manet has itself spawned further transformative paintings, from Cézanne to a raft of contemporary artists across the globe. See id., at 10–11. But the majority, as to these matters, is uninterested and unconcerned.
Take a look at one last example, from a modern master very different from Warhol, but availing himself of the same appropriative traditions. On the left (below) is Velázquez‘s portrait of Pope Innocent X; on the right is Francis Bacon‘s Study After Velázquez‘s Portrait.
Velázquez, Pope Innocent X, c. 1650, oil on canvas
Francis Bacon, Study After Velázquez‘s Portrait of Pope Innocent X, 1953, oil on canvas
To begin with, note the word “after” in Bacon‘s title. Copying is so deeply rooted in the visual arts that there is a naming convention for it, with “after” denoting that a painting is some kind of “imitation of a known work.” M. Clarke, The Concise Oxford Dictionary of Art Terms 5 (2d ed. 2010). Bacon made frequent use of that convention. He was especially taken by Velázquez‘s portrait of Innocent X, referring to it in tens of paintings. In the one shown above, Bacon retained the subject, scale, and composition of the Velázquez original. Look at one, look at the other, and you know Bacon copied. But he also transformed. He invested his portrait with new “expression, meaning, [and] message,” converting Velázquez‘s study of magisterial power into one of mortal dread. Campbell, 510 U. S., at 579.
But the majority, from all it says, would find the change immaterial. Both paintings, after all, are “portraits of [Pope Innocent X] used to depict [Pope Innocent X]” for hanging in some interior space, ante, at 12–13; so on the
The majority thus treats creativity as a trifling part of the fair-use inquiry, in disregard of settled copyright principles and what they reflect about the artistic process. On the majority‘s view, an artist had best not attempt to market even a transformative follow-on work—one that adds significant new expression, meaning, or message. That added value (unless it comes from critiquing the original) will no longer receive credit under factor 1. And so it can never hope to outweigh factor 4‘s assessment of the copyright holder‘s interests. The result will be what this Court has often warned against: suppression of “the very creativity which [copyright] law is designed to foster.” Stewart, 495 U. S., at 236; see supra, at 11–12. And not just on the margins. Creative progress unfolds through use and reuse, framing and reframing: One work builds on what has gonе before; and later works build on that one; and so on through time. Congress grasped the idea when it directed courts to attend to the “purpose and character” of artistic borrow
III
And the workings of creativity bring us back to Andy Warhol. For Warhol, as this Court noted in Google, is the very embodiment of transformative copying. He is proof of concept—that an artist working from a model can create important new expression. Or said more strongly, that appropriations can help bring great art into being. Warhol is a towering figure in modern art not despite but because of his use of source materials. His work—whether Soup Cans and Brillo Boxes or Marilyn and Prince—turned something not his into something all his own. Except that it also became all of ours, because his work today occupies a significant place not only in our museums but in our wider artistic culture. And if the majority somehow cannot see it—well, that‘s what evidentiary records are for. The one in this case contained undisputed testimony, and lots of it, that Warhol‘s Prince series conveyed a fundamentally different idea, in a fundamentally different artistic style, than the photo he started from. That is not the end of the fair-use inquiry. The test, recall, has four parts, with one focusing squarely on Goldsmith‘s interests. But factor 1 is supposed to measure what Warhol has done. Did his “new work” “add[] something new, with a further purpose or different character”? Campbell, 510 U. S., at 579. Did it “alter[] the first with new expression, meaning, or message”? Ibid. It did,
Still more troubling are the consequences of today‘s ruling for other artists. If Warhol does not get credit for transformative copying, who will? And when artists less famous than Warhol cannot benefit from fair use, it will matter even more. Goldsmith would probably have granted Warhol a license with few conditions, and for a price well within his budget. But as our precedents show, licensors sometimes place stringent limits on follow-on uses, especially to prevent kinds of expression they disapprove. And licensors may charge fees that prevent many or most artists from gaining access to original works. Of course, that is all well and good if an artist wants merely to copy the original and market it as his own. Preventing those uses—and thus incentivizing the creation of original works—is what copyrights are for. But when the artist wants to make a transformative use, a different issue is presented. By now, the reason why should be obvious. “Inhibit[ing] subsequent writers” and artists from “improv[ing] upon prior works”—as the majority does today—will “frustrate the very ends sought to be attained” by copyright law. Harper & Row, 471 U. S., at 549. It will stiflе creativity of every sort. It will impede new art and music and literature. It will thwart the expression of new ideas and the attainment of new knowledge. It will make our world poorer.
Notes
According to the dissent, the fact that a magazine editor might prefer one image to the other must mean the secondary use is transformative, either because it has a different aesthetic or conveys a different message. Post, at 10. The Court, because it fails to understand the difference, does not have “much of a future in magazine publishing,” the dissent chides. Ibid. While the dissent is probably correct about the Court‘s business prospects, the editors of People, Rolling Stone, and Time chose a variety of different photos of Prince for their memorial issues. See fig. 5, supra. Portrait photos, in fact. Some black and white; some depicting Prince‘s ” ‘corporeality’ “; some “realistic” or “humanistic.” Post, at 9, 16 (KAGAN, J., dissenting). These variations in aesthetics did not stop the photos from serving the same essential purpose of depicting Prince in a magazine commemorating his life and career.
Fortunately, the dissent‘s “magazine editor” test does not have much of a future in fair use doctrine. The flaw in the dissent‘s logic is simple: If all that mattered under the first factor were whether a buyer was “drawn aesthetically” to a secondary work (instead of the pre-existing work it adapted) or whether the buyer preferred “to convey the message of ” the secondary work, post, at 10, then every derivative work would qualify. The New Yorker might prefer an unauthorized sequel to a short story, rather than the original, but that does not mean the purpose and character of the use would weigh in its favor. Similarly, a rap label might prefer 2 Live Crew‘s song, rather than Orbison‘s original, based on the new sound and lyrics (i.e., new aesthetic and message), but that was not enough in Campbell, and it is not enough here.
While keenly grasping the relationship between The Two Lolitas, the dissent fumbles the relationship between the first and fourth fair use factors. Under today‘s decision, as before, the first factor does not ask whether a secondary use causes a copyright owner economic harm. Cf. post, at 21 (opinion of KAGAN, J.). There is, however, a positive association between the two factors: A secondary use that is more different in purpose and character is less likely to usurp demand for the original work or its derivatives, as the Court has explained, see Campbell, 519 U. S., at 591. This relationship should be fairly obvious. But see post, at 22 (KAGAN, J., dissenting) (suggesting that the first factor can favor only the user and the fourth factor only the copyright owner). Still, the relationship is not absolute. For example, copies for classroom use might fulfill demand for an original work. The first factor may still favor the copyist, even if the fourth factor is shown not to. At the same time, other forms of straight copying may be fair if a strong showing on the fourth factor outweighs a weak showing on the first.