ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS, INC. v. GOLDSMITH ET AL.
No. 21-869
SUPREME COURT OF THE UNITED STATES
Decided May 18, 2023
598 U. S. ____ (2023)
Argued October 12, 2022
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS, INC. v. GOLDSMITH ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
No. 21-869. Argued October 12, 2022-Decided May 18, 2023
In
Held: The “purpose and character” of AWF‘s use of Goldsmith‘s photograph in commercially licensing Orange Prince to Conde 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 Conde 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 educational purposes,”
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 has a further purpose or different character. Second, the first factor relates to the justification for the use. In a broad sense, a use that has a distinct purpose is justified because it furthers the goal of copyright, namely, to promote the progress of science and the arts, without diminishing the incentive to create. In a narrower sense, a use may be justified because copying is reasonably necessary to achieve the user‘s new purpose. Parody, for example, “needs to mimic an original to make its point.” Id., at 580-581. Similarly, other commentary or criticism that targets an original work may have compelling reason to “conjure up” the original by borrowing from it. Id., at 588. 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, e.g., Google, 593 U. S., at ___ (slip op., at 26).
In sum, if an original work and secondary use share the same or highly similar purposes, and the secondary use is commercial, the first fair use factor is likely to weigh against fair use, absent some other justification for copying. Pp. 13-20.
(2) The fair use provision, and the first factor in particular, 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 message.” 510 U. S., at 579. But Campbell cannot be read to mean that
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 of commercial copying of photographs to be used for purposes that are substantially the same as those of the originals.
AWF asserts another related purpose of Orange Prince, which is to comment on the “dehumanizing nature” and “effects” of celebrity. No doubt, many of Warhol‘s works, and particularly his uses of repeated images, can be perceived as depicting celebrities as commodities. But even if such commentary is perceptible on the cover of Conde 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
(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.
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors.
SUPREME COURT OF THE UNITED STATES
No. 21-869
ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS, INC., PETITIONER v. LYNN GOLDSMITH, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[May 18, 2023]
JUSTICE SOTOMAYOR delivered the opinion of the Court.
This copyright case involves not one, but two artists. The first, Andy Warhol, is well known. His images of products like Campbell‘s soup cans and of celebrities like Marilyn Monroe appear in museums around the world. Warhol‘s contribution to contemporary art is undeniable.
The second, Lynn Goldsmith, is less well known. But she too was a trailblazer. Goldsmith began a career in rock-and-roll photography when there were few women in the genre. Her award-winning concert and portrait images, however, shot to the top. Goldsmith‘s work appeared in Life, Time, Rolling Stone, and People magazines, not to mention the National Portrait Gallery and the Museum of Modern Art. She captured some of the 20th century‘s greatest rock stars: Bob Dylan, Mick Jagger, Patti Smith, Bruce Springsteen, and, as relevant here, Prince.
In 1984, Vanity Fair sought to license one of Goldsmith‘s Prince photographs for use as an “artist reference.” The magazine wanted the photograph to help illustrate a story about the musician. Goldsmith agreed, on the condition that the use of her photo be for “one time” only. 1 App. 85. The artist Vanity Fair hired was Andy Warhol. Warhol made a silkscreen using Goldsmith‘s photo, and Vanity Fair published the resulting image alongside an article about Prince. The magazine credited Goldsmith for the “source photograph,” and it paid her $400. 2 id., at 323, 325-326.
Warhol, however, did not stop there. From Goldsmith‘s photograph, he derived 15 additional works. Later, the Andy Warhol Foundation for the Visual Arts, Inc. (AWF) licensed one of those works to Conde 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,”
I
Lynn Goldsmith is a professional photographer. Her specialty is concert and portrait photography of musicians. At age 16, Goldsmith got one of her first shots: an image of the Beatles’ “trendy boots” before the band performed live on The Ed Sullivan Show. S. Michel, Rock Portraits, N. Y. Times, Dec. 2, 2007, p. G64. Within 10 years, Goldsmith had photographed everyone from Led Zeppelin to James Brown (the latter in concert in Kinshasa, no less). At that time, Goldsmith “had few female peers.” Ibid. But she was a self-starter. She quickly became “a leading rock photographer” in an era “when women on the scene were largely dismissed as groupies.” Ibid.
In 1981, Goldsmith convinced Newsweek magazine to hire her to photograph Prince Rogers Nelson, then an “up and coming” and “hot young musician.” 2 App. 315. Newsweek agreed, and Goldsmith took photos of Prince in concert at the Palladium in New York City and in her studio on West 36th Street. Newsweek ran one of
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.
Figure 2. A purple silkscreen portrait of Prince created in 1984 by Andy Warhol to illustrate an article in Vanity Fair.
pencil drawings. The works are collectively referred to as the “Prince Series.” See Appendix, infra. Goldsmith did not know about the Prince Series until 2016, when she saw the image of an orange silkscreen portrait of Prince (“Orange Prince“) on the cover of a magazine published by Vanity Fair‘s parent company, Conde Nast. See fig. 3, infra.
By that time, Warhol had died, and the Prince Series had passed to the Andy Warhol Foundation for the Visual Arts, Inc. AWF no longer possesses the works,2 but it asserts copyright in them. It has licensed images of the works for commercial
Figure 3. An orange silkscreen portrait of Prince on the cover of a special edition magazine published in 2016 by Conde 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. Conde Nast paid AWF $10,000 for the license. Goldsmith received neither a fee nor a source credit.
Remember that Goldsmith, too, had licensed her Prince images to magazines such as Newsweek, to accompany a story about the musician, and Vanity Fair, to serve as an artist reference. But that was not all. Between 1981 and 2016, Goldsmith‘s photos of Prince appeared on or between the covers of People, Readers Digest, Guitar World, and Musician magazines. See, e.g., fig. 4, infra.
Figure 4. One of Lynn Goldsmith‘s photographs of Prince on the cover of Musician magazine.
People magazine, in fact, paid Goldsmith $1,000 to use one of her copyrighted photographs in a special collector‘s edition, “Celebrating Prince: 1958-2016,” just after Prince died. People‘s tribute, like Conde 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 Conde Nast) credited the photographer.
Figure 5. Four special edition magazines commemorating Prince after he died in 2016.
Figure 6. Warhol‘s orange silkscreen portrait of Prince superimposed on Goldsmith‘s portrait photograph.
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 оther artists to create derivative works,” id., at 48-51.3 The court noted that there was “no material dispute that both Goldsmith and AWF have sought to license (and indeed have successfully licensed) their respective depictions of Prince to popular print magazines to accompany articles about him.” Id., at 49 (footnote omitted).
Finally, although the District Court had not reached the issue, the Court of Appeals rejected AWF‘s argument that the Prince Series works were not substantially similar to Goldsmith‘s photograph. See id., at 52-54.
Judge Jacobs concurred. He stressed that the Court of Appeals’ holding “d[id] not consider, let alone decide, whether the infringement here encumbers the original Prince Series works.” Id., at 54. Instead, “the only use at
issue” was “the Foundation‘s commercial licensing” of images of the Prince Series. Id., at 55.
This Court granted certiorari. 596 U. S. ___ (2022).
II
AWF does not challenge the Court of Appeals’ holding that Goldsmith‘s photograph and the Prince Series works are substantially similar. The question here is whether AWF can defend against a claim of copyright infringement because it made “fair use” of Goldsmith‘s photograph.
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 Conde Nast. As portraits of Prince used to depict Prince in magazine stories about Prince, the original photograph and AWF‘s copying use of it share substantially the same purpose. Moreover, the copying use is of a commercial nature. Even though Orange Prince adds new expression to Goldsmith‘s photograph, as the District Court found, this Court agrees with the Court of Appeals that, in the context of the challenged use, the first fair use factor still favors Goldsmith.
A
The Copyright Act encourages creativity by granting to the author of an original work “a bundle of exclusive rights.” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539, 546 (1985); see
The Act, however, “reflects a balanсe 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 the common-law doctrine of fair use in
“(1) the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes; “(2) the nature of the copyrighted work;
“(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
“(4) the effect of the use upon the potential market for or value of the copyrighted work.”
The fair use doctrine “permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Stewart v. Abend, 495 U. S. 207, 236 (1990) (internal quotation marks omitted). The Act‘s fair use provision, in turn, “set[s] forth general principles, the application of which requires judicial balancing, depending upon relevant circumstances.” Google LLC v. Oracle America, Inc., 593 U. S. ___ (2021) (slip op., at 14). Because those principles apply across a wide range of copyrightable material, from books to photographs to software, fair use is a “flexible” concept, and “its application may well vary depending on context.” Id. (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.”
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
issue” was “the Foundation‘s commercial licensing” of images of the Prince Series. Id., at 55.
This Court granted certiorari. 596 U. S. ___ (2022).
II
AWF does not challenge the Court of Appeals’ holding that Goldsmith‘s photograph and the Prince Series works are substantially similar. The question here is whether AWF can defend against a claim of copyright infringement because it made “fair use” of Goldsmith‘s photograph.
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 Conde Nast. As portraits of Prince used to depict Prince in magazine stories about Prince, the original photograph and AWF‘s copying use of it share substantially the same purpose. Moreover, the copying use is of a commercial nature. Even though Orange Prince adds new expression to Goldsmith‘s photograph, as the District Court found, this Court agrees with the Court of Appeals that, in the context of the challenged use, the first fair use factor still favors Goldsmith.
A
The Copyright Act encourages creativity by granting to the author of an original work “a bundle of exclusive rights.” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539, 546 (1985); see
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 сopyright,
This balancing act between creativity and availability (including for use in new works) is reflected in one such limitation, the defense of “fair use.” In 1976, Congress codified the common-law doctrine of fair use in
“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
“(2) the nature of the copyrighted work;
“(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
“(4) the effect of the use upon the potential market for or value of the copyrighted work.”
The fair use doctrine “permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Stewart v. Abend, 495 U. S. 207, 236 (1990) (internal quotation marks omitted). The Act‘s fair use provision, in turn, “set[s] forth general principles, the application of which requires judicial balancing, depending upon relevant circumstances.” Google LLC v. Oracle America, Inc., 593 U. S. ___ (2021) (slip op., at 14). Because those principles apply across a wide range of copyrightable material, from books to photographs to software, fair use is a “flexible” concept, and “its application may well vary depending on context.” Id. (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.”
factor considers the reasons for, and nature of, the copier‘s use of an original work. The “central” question it asks is “whether the new work merely ‘supersede[s] the objects’ of the original creation (‘supplanting’ the original), or instead adds something new, with a further purpose or different character.” Campbell, 510 U. S., at 579 (quoting Folsom v. Marsh, 9 F. Cas. 342, 348 (No. 4,901) (CC Mass. 1841) (Story, J.), and Harper & Row, 471 U. S., at 562). In that way, the first factor relates to the problem of substitution—copyright‘s bête noire. The use of an original work to achieve a purpose that is the same as, or highly similar to, that of the original work is more likely to substitute for, or “supplan[t],” the work, ibid.
Consider the “purposes” listed in the preamble paragraph of
Not every instance will be clear cut, however. Whether a use shares the
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
For example, this Court in Campbell considered whether parody may be fair use. In holding that it may, the Court explained that “parody has an obvious claim to transformative value” because “it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one.” 510 U. S., at 579. The use at issue in Campbell was 2 Live Crew‘s copying of certain lyrics and musical elements from Roy Orbison‘s song, “Oh, Pretty Woman,” to create a rap derivative titled “Pretty Woman.” Without a doubt, 2 Live Crew transformed Orbison‘s song by adding new lyrics and musical elements, such that “Pretty Woman” had a new message and different aesthetic than “Oh, Pretty Woman.” Indeed, the whole genre of music changed from rock ballad to rap. That was not enough for the first factor to weigh in favor of fair use, however. The Court found it necessary to determine whether 2 Live Crew‘s transformation of Orbison‘s song rose to the level of parody, a distinct purpose of commenting on the original or criticizing it. See id., at 580-583.
This discussion illustrates two important points: First, the fact that a use is commercial as opposed to nonprofit is an additional “element of the first factor.” Id., at 584. The commercial nature of the use is not dispositive. Ibid.; Google, 593 U. S., at ___ (slip op., at 27). But it is relevant. As the Court explained in Campbell, it is to be weighed against the degree to which the use has a further purpose or different character. See 510 U. S., at 579 (“[T]he more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use“); see also id., at 580, 585.6
Second, the first factor also relates to the justification for the use. In a broad sense, a use that has a distinct purpose is justified because it furthers the goal of copyright, namely, to promote the progress of science and the arts, without diminishing the incentive to create. See id., at 579; Authors Guild v. Google, Inc., 804 F. 3d 202, 214 (CA2 2015) (Leval, J.) (“The more the appropriator is using the copied material for new, transformative purposes, the more it serves copyright‘s goal of enriching public knowledge and the less likely it is that the appropriation will serve as a substitute for the original or its plausible derivatives, shrinking the protected market opportunities of the copyrighted work“). A use that shares the purpose of a copyrighted work, by contrast, is more likely to provide “the public with a substantial substitute for matter protected by the [copyright owner‘s] interests in the original wor[k] or derivatives of [it],” id., at 207, which undermines the goal of copyright.
In a narrower sense, a use may be justified because 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
In sum, the first fair use factor considers whether the use of a copyrighted work has a further purpose or different character, which is a matter of degree, and the degree of difference must be balanced against the commercial nature of the use. If an original work and a secondary use share the same or highly similar purposes, and the secondary use is of a commercial nature, the first factor is likely to weigh against fair use, absent some other justification for copying.8
2
The fair use provision, and the first factor in particular, requires an analysis of the specific “use” of a copyrighted work that is alleged to be “an infringement.”
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
A typical use of a celebrity photograph is to accompany stories about the celebrity, often in magazines. For example, Goldsmith licensed her photographs of Prince to illustrate stories about Prince in magazines such as Newsweek, Vanity Fair, and People. Supra, at 3-6. She even licensed her photographs for that purpose after Prince died in 2016. Supra, at 7. A photographer may also license her creative work to serve as a reference for an artist, like Goldsmith did in 1984 when Vanity Fair wanted an image of Prince created by Warhol to illustrate an article about Prince. As noted by the Court of Appeals, Goldsmith introduced “uncontroverted” evidence “that photographers generally license others to create stylized derivatives of their work in the vein of the Prince Series.” 11 F. 4th, at 50; see 2 App. 291-299. In fact, Warhol himself paid to license photographs for some of his artistic renditions. Such licenses, for photographs or derivatives of them, are how photographers like Goldsmith make a living. They provide an economic incentive to create original works, which is the goal of copyright.
In 2016, AWF licensed an image of Orange Prince to Condé Nast to appear on the cover of a commemorative edition magazine about Prince. The edition, titled “The Genius of Prince,” celebrates the life and work of “Prince Rogers Nelson, 1958-2016.” It is undisputed here that the edition is “devoted to Prince.” 2 App. 352. In addition to AWF‘s image on the cover, the magazine contains numerous concert and studio photographs of Prince. In that context, the purpose of the image is substantially the same as that of Goldsmith‘s photograph. Both are portraits of Prince used in magazines to illustrate stories about Prince.11 Such “environment[s]”
U. S., at ___ (slip op., at 26). AWF‘s licensing of the Orange Prince image thus “supersede[d] the objects,” Campbell, 510 U. S., at 579, i.e., shared the objectives, of Goldsmith‘s photograph, even if the two were not perfect substitutes.12
The use also “is of a commercial nature.”
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, аbsent some other justification for copying. That is, although a use‘s transformativeness may outweigh its commercial character, here, both elements point in the same direction.14
The foregoing does not mean, however, that derivative works borrowing heavily from an original cannot be fair uses. In Google, the Court suggested that “[a]n ‘artistic painting’ might, for example, fall within the scope of fair use even though it precisely replicates a copyrighted ‘advertising logo to make a comment about consumerism.‘” 593 U. S., at ___ (slip op., at 24-25) (quoting 4 M. Nimmer & D. Nimmer, Copyright §13.05[A][1][b] (2019), in turn quoting N. Netanel, Making Sense of Fair Use, 15 Lewis & Clark L. Rev. 715, 746 (2011) (some internal quotation marks omitted)). That suggestion refers to Warhol‘s works that incorporate advertising logos, such as the Campbell‘s Soup Cans series. See fig. 7, infra.
Figure 7. A print based on the Campbell‘s soup can, one of Warhol‘s works that replicates a copyrighted advertising logo.
not share that purpose. Rather, the Soup Cans series uses Campbell‘s copyrighted work for an artistic commentary on consumerism, a purpose that is orthogonal to advertising soup. The use therefore does not supersede the objects of the advertising logo.15
Moreover, a further justification for Warhol‘s use of Campbell‘s logo is apparent. His Soup Cans series targets the logo. That is, the original copyrighted work is, at least in part, the object of Warhol‘s commentary. It is the very nature of Campbell‘s copyrighted logo—well known to the public, designed to be reproduced, and a symbol of an 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.
B
AWF contends, however, that the purpose and character of its use of Goldsmith‘s photograph weighs in favor of fair use because Warhol‘s silkscreen image of the photograph, like the Campbell‘s Soup Cans series, has a new meaning or message. The District Court, for example, understood the Prince Series works to portray Prince as “an iconic, larger-than-life
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 adaptations, 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,
The dissent commits the same interpretive error as AWF: It focuses on Campbell‘s paraphrase, yet ignores the rest of that decision‘s careful reasoning. Indeed, upon reading the dissent, someone might be surprised to learn that Campbell was about parody at all. Had expert testimony confirmed the obvious fact that 2 Live Crew‘s “Pretty Woman” differed in aesthetics and meaning from Orbison‘s original, that would have been the end of the dissent‘s analysis. See post, at 14-17 (opinion of KAGAN, J.). Not the Court‘s, however. Campbell was the culmination of a long line of cases and scholarship about parody‘s claim to fairness in borrowing. “For purposes of copyright law,” the Court explained, “the heart of any parodist‘s claim to quote from existing material is the use of some elements of a prior author‘s composition to create a new one that, at least in part, comments on that author‘s works.” 510 U. S., at 580. Campbell thus drew a nuanced distinction between parody and satire: While parody cannot function unless it conjures up the original, “satire can stand on its own two feet and so requires justification for ... borrowing.” Id., at 580-581. The objective meaning or message of 2 Live Crew‘s song was relevant to this inquiry into the reasons for copying, but any “new expression, meaning, or message” was not the test.18
What role meaning or message played in the Court of Appeals’ analysis here is not entirely clear. The court correctly rejected the idea “that any secondary work that adds a new aesthetic or new expression to its source material is necessarily transformative.” 11 F. 4th, at 38-39. It also appeared correctly to accept that meaning or message is relevant to, but not dispositive of, purpose. See id., at 41 (“[T]he secondary work itself must reasonably be perceived as embodying a distinct artistic purpose, one that conveys a new meaning or message separate from its source material“); id., at 42 (“[T]he judge must examine whether the secondary work‘s use of its source material is in service of a fundamentally different and new artistic purpose and character, [which] must, at a bare minimum, comprise something more than the imposition of another artist‘s style on the primary work ...” (internal quotation marks omitted)).
Elsewhere, however, the Court of Appeals stated that “the district judge should not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue.” Id., at 41. That statement is correct in part. A court should not attempt to evaluate the artistic significance of a particular work. See Bleistein v. Donaldson Lithographing Co., 188 U. S. 239, 251 (1903) (Holmes, J.) (“It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [a work], outside of
the user (or the subjective interpretation of a court) determine the purpose of the use. But the meaning of a secondary work, as reasonably can be perceived, should be considered to the extent necessary to determine whether the purpose of the use is distinct from the original, for instance, because the use comments on, criticizes, or provides otherwise unavailable information about the original, see, e.g., Authors Guild, 804 F. 3d, at 215-216.
2
The District Court determined that “[t]he Prince Series works can reasonably be perceived to have transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure.” 382 F. Supp. 3d, at 326. To make that determination, the District Court relied, in part, on testimony by Goldsmith that her photographs of Prince show that he “is ‘not a comfortable person’ and that he is ‘a vulnerable human being.‘” Ibid. An expert on Warhol, meanwhile, testified that the Prince Series works depict “Prince as a kind of icon or totem of something,” a “mask-like simulacrum of his actual existence.” 1 App. 249, 257.
The Court of Appeals noted, correctly, that “whether a work is transformative cannot turn merely on the stated or perceived intent of the artist or the meaning or impression that a critic—or for that matter, a judge—draws from the work.” 11 F. 4th, at 41. “[O]therwise, the law may well recogniz[e] any alteration as transformative.‘” Ibid. (quoting 4 Nimmer, Copyright §13.05[B][6]). Whether the purpose and character of a use weighs in favor of fair use is, instead, an objective inquiry into what use was made, i.e., what the user does with the original work.
Granting the District Court‘s conclusion that Orange Prince reasonably can be perceived to portray Prince as iconic, whereas Goldsmith‘s portrayal is photorealistic, that difference must be evaluated in the context of the specific use at issue. The use is AWF‘s commercial licensing of Orange Prince to appear on the cover of Condé Nast‘s special commemorative edition. The purpose of that use is, still, to illustrate a magazine about Prince with a portrait of Prince. Although the purpose could be more specificаlly 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),
To hold otherwise would potentially authorize a range of commercial copying of photographs, to be used for purposes that are substantially the same as those of the originals. As long as the user somehow portrays the subject of the photograph differently, he could make modest alterations to the original, sell it to an outlet to accompany a story about the subject, and claim transformative use. Many photographs will be open to various interpretations. A subject as open to interpretation as the human face, for example, reasonably can be perceived as conveying several possible meanings. The application of an artist‘s characteristic style to bring out a particular meaning that was available in the photograph is less likely to constitute a “further purpose” as Campbell used the term. 510 U. S., at 579.
AWF asserts another, albeit related, purpose, which is to comment on the “dehumanizing nature” and “effects” of celebrity. Brief for Petitioner 44, 51. No doubt, many of Warhol‘s works, and particularly his uses of repeated images, can be perceived as depicting celebrities as commodities. But again, even if such commentary is perceptible on the cover of Condé Nast‘s tribute to “Prince Rogers Nelson, 1958-2016,” on the occasion of the man‘s death, AWF has a problem: The asserted commentary is at Campbell‘s lowest ebb. Because it “has no critical bearing on” Goldsmith‘s photograph,20 the commentary‘s “claim to fairness in borrowing from” her work “diminishes accordingly (if it does not vanish).” 510 U. S., at 580.21 The commercial nature of the use, on the other hand, “loom[s] larger.” Ibid.
Here, the circumstances of AWF‘s 2016 licensing outweigh its diminished claim to fairness in copying under the first factor. Like satire that does not target an original work, AWF‘s asserted commentary “can stand on its own two feet and so requires justification for the very act of borrowing.” Id., at 581. Moreover, because AWF‘s commercial use of Goldsmith‘s photograph to illustrate a magazine about Prince is so similar to the photograph‘s typical use, a particularly compelling justification is needed. Yet AWF offers no independent justification, let alone a compelling one, for copying the photograph, other than to convey a new
Copying might have been helpful to convey a new meaning or message. It often is. But that does not suffice under the first factor. Nor does it distinguish AWF from a long list of would-be fair users: a musician who finds it helpful to sample another artist‘s song to make his own, a playwright who finds it helpful to adapt a novel, or a filmmaker who would prefer to create a sequel or spinoff, to name just a few.22 As Judge Leval has explained, “[a] secondary author is not necessarily at liberty to make wholesale takings of the original author‘s expression merely because of how well the original author‘s expression would convey the secondary author‘s different message.” Authors Guild, 804 F. 3d, at 215.
3
The dissent would rather not debate these finer points. See post, at 4, n. 2 (opinion of KAGAN, J.). It offers no theory of the relationship between transformative uses of original works and derivative works that transform originals. No reason why AWF was justified in using Goldsmith‘s original work in this specific instance. And no limiting principle for its apparent position that any use that is creative prevails under the first fair use factor. Instead, the dissent makes the simple (and obvious) point that restrictions on copying can inhibit follow-on works. ““Nothing comes from nothing,” the dissent observes, ““nothing ever could.” Post, at 11. So somewhere in the copyright statute, there must be an “escape valve” to create something good. Post, at 12. If AWF must pay Goldsmith to use her creation, the dissent claims, this will “stifle creativity of every sort,” “thwart the expression of new ideas and the attainment of new knowledge,” and “make our world poorer.” Post, at 36.
These claims will not age well. It will not impoverish our world to require AWF to pay Goldsmith a fraction of the proceeds from its reuse of her copyrighted work. Recall, payments like these are incentives for artists to create original works in the first place. Nor will the Court‘s decision, which is consistent with longstanding principles of fair use, snuff out the light of Western civilization, returning us to the Dark Ages of a world without Titian, Shakespeare, or Richard Rodgers. The dissent goes on at length about the basic premise that copyright (like other forms of intellectual property) involves a tradeoff between stimulating innovative activity, on the one hand, and allowing follow-on innovation, on the other. See post, at 11-12, and n. 4, 24-35. This theme will be familiar to any student of copyright law. In tracing the history of Renaissance painting, however, the dissent loses sight of the statute and this Court‘s cases. The Lives of the Artists undoubtedly makes for livelier reading than the U. S. Code or the U. S. Reports, but as a court, we do not have that luxury.
The dissent thus misses the forest for a tree. Its single-minded focus on the value of copying ignores the value of original works. It ignores the statute‘s focus on the
The result of these omissions is an account of fair use that is unbalanced in theory and, perhaps relatedly, in tone. The dissent‘s conclusion—that whenever a use adds new meaning or message, or constitutes creative progress in the opinion of a critic or judge, the first fair use factor weighs in its favor—does not follow from its basic premise. Fair use instead strikes a balance between original works and secondary uses based in part on objective indicia of the use‘s purpose and character, including whether the use is commercial and, importantly, the reasons for copying.
Finally, copyright law is replete with escape valves: the idea-expression distinction; the general rule that facts may not receive protection; the requirement of originality; the legal standard for actionable copying; the limited duration of copyright; and, yes, the defense of fair use, including all its factors, such as whether the amount taken is reasonable in relation to the purpose of the use. These doctrines (and others) provide ample space for artists and other creators to use existing materials to make valuable new works. They account for most, if not all, of thе examples given by the dissent, as well as the dissent‘s own copying (and the Court‘s, too). If the last century of American art, literature, music, and film is any indication, the existing copyright law, of which today‘s opinion is a continuation, is a powerful engine of creativity.
III
Lynn Goldsmith‘s original works, like those of other photographers, are entitled to copyright protection, even against famous artists. Such protection includes the right to prepare derivative works that transform the original. The use of a copyrighted work may nevertheless be fair if, among other things, the use has a purpose and character that is sufficiently distinct from the original. In this case, however, Goldsmith‘s original photograph of Prince, and AWF‘s copying use of that photograph in an image licensed to a special edition magazine devoted to Prince, share substantially the same purpose, and the use is of a commercial nature. AWF has offered no other persuasive justification for its unauthorized use
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.
APPENDIX
Andy Warhol created 16 works based on Lynn Goldsmith‘s photograph: 14 silkscreen prints and two pencil drawings. The works are collectively known as the Prince Series.
JUSTICE GORSUCH, with whom JUSTICE JACKSON joins, concurring.
The question before us is a narrow one of statutory interpretation. It concerns the meaning of one of four factors Congress has instructed courts to consult when a party invokes the affirmative defense of “fair use” to a claim of copyright infringement. The statutory factor in question requires courts to consider “the purpose and character of the use.”
On the Foundation‘s telling, the statute requires courts to focus on the purpose the creator had in mind when producing his
By contrast, on Ms. Goldsmith‘s reading of the law and under the Second Circuit‘s approach, the first fair-use factor requires courts to assess the purpose and character of the challenged use. Ante, at 21. The Foundation now owns Mr. Warhol‘s image of Prince and it recently sought to license that image to a magazine looking for a depiction of Prince to accompany an article about Prince. Ibid. Ms. Goldsmith seeks to license her copyrighted photograph to exactly these kinds of buyers. And because the purpose and character of the Foundation‘s challenged use and the purpose and character of her own protected use overlap so completely, Ms. Goldsmith argues that the first statutory factor does not support a fair-use affirmative defense.
As I see it, the second view of the law is the better one. Nothing in the copyright statute calls on judges to speculate about the purpose an artist may have in mind when working on a particular project. Nothing in the law requires judges to try their hand at art criticism and assess the aesthetic character of the resulting work. Instead, the first statutory fair-use factor instructs courts to focus on “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.”
To my mind, three contextual clues confirm that this reading of the statutory text is the correct one.
First, the statutory preamble to all four fair-use factors instructs courts to assess whether the person asserting a fair-use defense seeks to “use” a copyrighted work “for purposes such as criticism, comment, news reporting, teaching ..., scholarship, or research.”
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 build on classic literary themes? Post, at 25-35 (KAGAN, J., dissenting). Worry not. This case does not call on us to strike a balance between rewarding creators and enabling others to build on their work. That is Congress‘s job. See
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 copyrightеd work. See 2 Nimmer on Copyright §8.01[D] (2022). The plaintiff must usually show not only a similarity but a “substantial” similarity between the allegedly infringing work and the original elements of his own copyrighted work. See 4 Nimmer on Copyright §13.03[A] (2023). And even when two works are substantially similar, if both the plaintiff‘s and the defendant‘s works copy from a third source (reworking, say, a traditional artistic or literary theme), a claim for infringement generally will not succeed. See 2 Nimmer on Copyright §8.01[C]. In this case, we address none of these questions or other elements of the infringement standard designed to ensure room for later artists to build on the work of their predecessors. The district court concluded that it “need not address” the merits of Ms. Goldsmith‘s infringement claim because the Foundation could prevail at summary judgment on its affirmative defense of fair use. 382 F. Supp. 3d 312, 324 (SDNY 2019). The Second Circuit reversed, focused primarily on the district court‘s “application of the four fair-use factors.” 11 F. 4th 26, 32 (2021); see id., at 36-52. And this Court granted review to decide only the question of fair use and only the role of a single factor in that affirmative defense. 596 U. S. ___ (2022).
Last but hardly least, while our interpretation of the first fair-use factor does not favor the Foundation in this case, it may in others. If, for example, the Foundation had sought to display Mr. Warhol‘s image of Prince in a nonprofit museum or a for-profit book commenting on 20th-century art, the purpose and character of that use might well point to fair use. But those cases are not this case. Before us, Ms. Goldsmith challenges only the Foundation‘s effort to use its portrait as a commercial substitute for her own protected photograph in sales to magazines looking for images of Prince to accompany articles about the musician. And our only point today is that, while the Foundation may often have a fair-use defense for Mr. Warhol‘s work, that does not mean it always will. Under the law Congress has given us, each challenged use must be assessed on its own terms.
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 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 relevant here, Prince. That‘s how Warhol earned his conspicuous place in every college‘s Art History 101. So it may come as a surprise to see the majority describe the Prince silkscreen as a “modest alteration[]” of Lynn Goldsmith‘s photograph—the result of some “crop[ping]” and “flat-ten[ing]“—with the same “essential nature.” Ante, at 8, 25, n. 14, 33 (emphasis deleted). Or more generally, to observe the mаjority‘s lack of appreciation for the way his works differ in both aesthetics and message from the original templates. In a recent decision, this Court used Warhol paintings as the perfect exemplar of a “copying use that adds something new and important“—of a use that is “transformative,” and thus points toward a finding of fair use. Google LLC v. Oracle America, Inc., 593 U. S. ___, ___ (2021) (slip op., at 24-25). That Court would have told this one to go back to school.
What is worse, that refresher course would apparently be insufficient. For it is not just that the majority does not realize how much Warhol added; it is that the majority does not care. In adopting that posture of indifference, the majority does something novel (though in law, unlike in art, it is rarely a good thing to be transformative). Before today, we assessed “the purpose and character” of a copier‘s use by asking the following question: Does the work “add[] something new, with a further purpose or different character, altering the [original] with new expression, meaning, or message“? Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569, 579 (1994); see Google, 593 U. S., at ___ (slip op., at 24). When it did so to a significant degree, we called the work “transformative” and held that the fair-use test‘s first factor favored the copier (though other factors could outweigh that one). But today‘s decision—all the majority‘s protestations notwithstanding—leaves our first-factor inquiry in shambles. The majority holds that because Warhol licensed his work to a magazine—as Goldsmith sometimes also did—the first factor goes against him. See, e.g., ante, at 35. It does
not matter how different the Warhol is from the original photo—how much “new expression, meaning, or message” he added. It does not matter that the silkscreen and the photo do not have the same aesthetic characteristics and do not convey the same meaning. It does not matter that because of those dissimilarities, the magazine publisher did not view the one as a substitute for the other. All that matters is that Warhol and the publisher entered into a licensing transaction, similar to one Goldsmith might have done. Because the artist had such a commercial purpose, all the creativity in the world could not save him.
That doctrinal shift ill serves copyright‘s core purpose. The law does not grant artists (and authors and composers and so on) exclusive rights—that is, monopolies—for their own sake. It does so to foster creativity—“[t]o promote the [p]rogress” of both arts and science.
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 commеrcial illustrator and became experienced in varied techniques of reproduction. By night, he used those techniques—in particular, the silkscreen—to create his own art. His own—even though in one sense not. The silkscreen enabled him to make brilliantly novel art out of existing “images carefully selected from popular culture.” D. De Salvo, God Is in the Details, in Andy Warhol Prints 22 (4th rev. ed. 2003). The works he produced, connecting traditions of fine art with mass culture, depended on “appropriation[s]“: The use of “elements of an extant image[] is Warhol‘s entire modus operandi.” B. Gopnik, Artistic Appropriation vs. Copyright Law, N. Y. Times, Apr. 6, 2021, p. C4 (internal quotation marks omitted). And with that m.o., he changed modern art; his appropriations and his originality were flipsides of each other. To a public accustomed to thinking of art as formal works “belong[ing] in
gold frames“—disconnected from the everyday world of products and personalities—Warhol‘s paintings landed like a thunderclap. A. Danto, Andy Warhol 36 (2009). Think Soup Cans or, in another vein, think Elvis. Warhol had created “something very new“—“shockingly important, transformative art.” B. Gopnik, Warhol 138 (2020); Gopnik, Artistic Appropriation.
To see the method in action, consider one of Warhol‘s pre-Prince celebrity silkscreens—this one, of Marilyn Monroe. He began with a publicity photograph of the actress. And then he went to work. He reframed the image, zooming in on Monroe‘s face to “produc[e] the disembodied
At that point, he produced a high-contrast, flattened image on a sheet of clear acetate. He used that image to trace an outline on the canvas. And he painted on top—applying exotic colors with “a flat, even consistency and an industrial appearance.” Id., at 165. The same high-contrast image was then reproduced in negative on a silkscreen, designed to function as a selectively porous mesh. Warhol would “place the screen face down on the canvas, pour ink onto the back of the mesh, and use a squeegee to pull the ink through the weave and onto the canvas.” Id., at 164. On some of his Marilyns (there are many), he reordered the process—first ink, then color, then (perhaps) ink again. See id., at 165-166. The result—see for yourself—is miles away from a literal copy of the publicity photo.
Andy Warhol, Marilyn, 1964, acrylic and silkscreen ink on linen
And the meaning is different from any the photo had. Of course, meaning in great art is contestable and contested (as is the premise that an artwork is great). But note what some experts say about the complex message(s) Warhol‘s Marilyns convey. On one level, those vivid, larger-than-life paintings are celebrity iconography, making a “secular, profane subject[]” “transcendent” and “eternal.” Id., at 209 (internal quotation marks omitted). But they also function as a biting critique of the cult of celebrity, and the role it plays in American life. With misaligned, “Day-Glo”
As with Marilyn, similarly with Prince. In 1984, Vanity Fair commissioned Warhol to create a portrait based on a black-and-white photograph taken by noted photographer Lynn Goldsmith:
As he did in the Marilyn series, Warhol cropped the photo, so that Prince‘s head fills the whole frame: It thus becomes “disembodied,” as if “magically suspended in space.” Id., at 174. And as before, Warhol converted the cropped photo into a higher-contrast image, incorporated into a silkscreen. That image isolated and exaggerated the darkest details of Prince‘s head; it also reduced his “natural, angled position,” presenting him in a more face-forward way. Id., at 223. Warhol traced, painted, and inked, as earlier described. See supra, at 5-6. He also made a second silkscreen, based on his tracings; the ink he passed through that screen left differently colored, out-of-kilter lines around Prince‘s face and hair (a bit hard to see in the reproduction below—more pronounced in the original). Altogether, Warhol made 14 prints and two drawings—the Prince series—in a range of unnatural, lurid hues. See Appendix, ante, at 39. Vanity Fair chose the Purple Prince to accompany an article on the musician. Thirty-two years later, just after Prince died, Condé Nast paid Warhol (now actually his foundation, see supra, at 1, n. 1) to use the Orange Prince on the cover of a special commemorative magazine. A picture (or two), as the saying goes, is worth a thousand words, so here is what those magazines published:
Andy Warhol, Prince, 1984, synthetic paint and silkscreen ink on canvas
It
not have been more different.
A thought experiment may pound the point home. Suppose you were the editor of Vanity Fair or Conde Nast, publishing an article about Prince. You need, of course, some kind of picture. An employee
In any event, the editors of Vanity Fair and Conde Nast understood the difference—the gulf in both aesthetics and meaning—between the Goldsmith photo and the Warhol portrait. They knew about the photo; but they wanted the portrait. They saw that as between the two works, Warhol had effected a transformation.
B
The question in this case is whether that transformation should matter in assessing whether Warhol made “fair use” of Goldsmith‘s copyrighted photo. The answer is yes—it should push toward (although not dictate) a finding of fair use. That answer comports with the copyright statute, its underlying policy, and our precedent concerning the two. Under established copyright law (until today), Warhol‘s addition of important “new expression, meaning, [and] message” counts in his favor in the fair-use inquiry. Campbell, 510 U. S., at 579.
Start by asking a broader question: Why do we have “fair use” anyway? The majority responds that while copyrights encourage the making of creative works, fair use promotes their “public availability.” Ante, at 13 (internal quotation marks omitted). But that description sells fair use far short. Beyond promoting “availability,” fair use itself advances creativity and artistic progress. See Campbell, 510 U. S., at 575, 579 (fair use is “necessary to fulfill copyright‘s very purpose“—to “promote science and the arts“). That is because creative work does not happen in a vacuum. “Nothing comes from nothing, nothing ever could,” said songwriter Richard Rodgers, maybe thinking not only about love and marriage but also about how the Great American Songbook arose from vaudeville, ragtime, the blues, and jazz.4 This Court has long understood the point—has gotten how new art, new invention, and new knowledge arise from existing works. Our seminal opinion on fair use quoted the illustrious Justice Story:
“In truth, in literature, in science and in art, there are, and can be, few, if any,
things, which are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.” Id., at 575 (quoting Emerson v. Davies, 8 F. Cas. 615, 619 (No. 4,436) (CC Mass. 1845)).
Because that is so, a copyright regime with no escape valves would “stifle the very creativity which [the] law is designed to foster.” Stewart, 495 U. S., at 236. Fair use is such an escape valve. It “allow[s] others to build upon” copyrighted material, so as not to “put manacles upon” creative progress. Campbell, 510 U. S., at 575 (internal quotation marks omitted). In short, copyright‘s core value—promoting creativity—sometimes demands a pass for copying.
To identify when that is so, the courts developed and Congress later codified a multi-factored inquiry. As the majority describes, see ante, at 14, the current statute sets out four non-exclusive considerations to guide courts. They are: (1) “the purpose and character of the use” made of the copyrighted work, “including whether such use is of a commercial nature“; (2) “the nature of the copyrighted work“; (3) “the amount and substantiality of the portion used in relation to the copyrighted work as a whole“; and (4) “the effect of the use upon the potential market for or value of the copyrighted work.”
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
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.‘” Id., 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.” Id., 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.” Id., 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.” Id., at 579. Under that approach, the Campbell Court held, the rap group 2 Live Crew‘s “transformative” copying of Roy Orbison‘s “Pretty Woman” counted in favor of fair use. Id., at 583. And that was so even though the rap song was, as everyone agreed, recorded and later sold for profit. See id., at 573.
Just two Terms ago, in Google, we made all the same points. We quoted Campbell in explaining that the factor 1 inquiry is “whether the copier‘s use ‘adds something new, with a further purpose or different character, altering’ the copyrighted work ‘with new expression, meaning, or message.‘” 593 U. S., at ___ (slip op., at 24). We again described “a copying use that adds something new and important” as “transformative.” Ibid. We reiterated that protecting transformative uses “stimulate[s] creativity” and thus “fulfill[s] the objective of copyright law.” Ibid. (quoting Leval 1111). And then we gave an example. Yes, of course, we pointed to Andy Warhol. (The majority claims not to be embarrassed by this embarrassing fact because the specific reference was to his Soup Cans, rather than his celebrity images.
Campbell and Google also illustrate the difference it can make in the world to protect transformative works through fair use. Easy enough to say (as the majority does, see ante, at 36) that a follow-on creator should just pay a licensing fee for its use of an original work. But sometimes copyright holders charge an out-of-range price for licenses. And other times they just say no. In Campbell, for example, Orbison‘s successor-in-interest turned down 2 Live Crew‘s request for a license, hoping to block the rap take-off of the original song. See 510 U. S., at 572-573. And in Google, the parties could not agree on licensing terms, as Sun insisted on conditions that Google thought would have subverted its business model. See 593 U. S., at ___ (slip op., at 3). So without fair use, 2 Live Crew‘s and Google‘s works—however new and important—might never have been made or, if made, never have reached the public. The prospect of that loss to “creative progress” is what lay behind the Court‘s inquiry into transformativeness—into the expressive novelty of the follow-on work (regardless whether the original creator granted permission). Id., at ___ (slip op., at 25); see Campbell, 510 U. S., at 579.
Now recall all the ways Warhol, in making a Prince portrait from the Goldsmith photo, “add[ed] something new, with a further purpose or different character“—all the ways he “alter[ed] the [original work‘s] expression, meaning, [and] message.” Ibid. The differences in form and appearance, relating to “composition, presentation, color palette, and media.” 1 App. 227; see supra, at 7-10. The differences in meaning that arose from replacing a realistic—and indeed humanistic—depiction of the performer with an unnatural, disembodied, masklike one. See ibid. The conveyance of new messages about celebrity culture and its personal and societal impacts. See ibid. The presence of, in a word, “transformation“—the kind of creative building that copyright exists to encourage. Warhol‘s use, to be sure, had a commercial aspect. Like most artists, Warhol did not want to hide his works in a garret; he wanted to sell them. But as Campbell and Google both demonstrate (and as fur-ther discussed below), that fact is nothing near the showstopper the majority claims. Remember, the more transformative the work, the less commercialism matters. See Campbell, 510 U. S., at 579; supra, at 14; ante, at 18 (acknowledging the point, even while refusing to give it any meaning). The dazzling creativity evident in the Prince portrait might not get Warhol all the way home in the fair-use inquiry; there remain other factors to be considered and possibly weighed against the first one. See supra, at 2, 10, 14. But the “purpose and character of [Warhol‘s] use” of the copyrighted
II
The majority does not see it. And I mean that literally. There is precious little evidence in today‘s opinion that the majority has actually looked at these images, much less that it has engaged with expert views of their aesthetics and meaning. Whatever new expression Warhol added, the majority says, was not transformative. See ante, at 25. Apparently, Warhol made only “modest alterations.” Ante, at 33. Anyone, the majority suggests, could have “crop[ped], flatten[ed], trace[d], and color[ed] the photo” as Warhol did. Ante, at 8. True, Warhol portrayed Prince “somewhat differently.” Ante, at 33. But the “degree of difference” is too small: It consists merely in applying Warhol‘s “characteristic style“—an aesthetic gloss, if you will—“to bring out a particular meaning” that was already “available in [Goldsmith‘s] photograph.” Ibid. So too, Warhol‘s commentary on celebrity culture matters not at all; the majority is not willing to concede that it even exists. See ante, at 34 (“even if such commentary is perceptible“). And as for the District Court‘s view that Warhol transformed Prince from a “vulnerable, uncomfortable person to an iconic, larger-than-life figure,” the majority is downright dismissive. Ante, at 32. Vulnerable, iconic—who cares? The silkscreen and the photo, the majority claims, still have the same “essential nature.” Ante, at 25, n. 14 (emphasis deleted).
The description is disheartening. It‘s as though Warhol is an Instagram filter, and a simple one at that (e.g., sepia-tinting). “What is all the fuss about?,” the majority wants to know. Ignoring reams of expert evidence—explaining, as every art historian could explain, exactly what the fuss is about—the majority plants itself firmly in the “I could paint that” school of art criticism. No wonder the majority sees the two images as essentially fungible products in the magazine market—publish this one, publish that one, what does it matter? See ante, at 22-23; supra, at 10. The problem is that it does matter, for all the reasons given in the record and discussed above. See supra, at 9-10. Warhol based his silkscreen on a photo, but fundamentally changed its character and meaning. In belittling those creative contributions, the majority guаrantees 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 Conde Nast, he could not get any help from factor 1— regardless how transformative his image was. See, e.g., ante, at 35 (Warhol‘s licensing “outweigh[s]” any “new meaning or message” he could have offered). The majority‘s
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
Second, the majority significantly narrows
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, аt 2, 4. And it is possible lower courts will pick up on that difference, and ensure that the “newness” of a follow-on work will continue to play a significant role in the factor 1 analysis. If so, I‘ll be happy to discover that my “claims [have] not age[d] well.” Ante, at 36. But that would require courts to do what the majority does not: make a serious inquiry into the follow-on artist‘s creative contributions. The majority‘s refusal to do so is what creates the oddity at the heart of today‘s opinion. If “newness” matters (as the opinion sometimes says), then why does the majority dismiss all the newness Warhol
Certainly not because of our precedent—which conflicts with nearly all the majority says. As explained earlier, this Court has decided two important cases about factor 1. See supra, at 14-16. In each, the copier had built on the original to make a product for sale—so the use was patently commercial. And in each, that fact made no difference, because the use was also transformative. The copier, we held, had made a significant creative contribution—had added real value. So in Campbell, we did not ask whether 2 Live Crew and Roy Orbison both meant to make money by “including a catchy song about women on a record album.” But cf. ante, at 12-13 (asking whether Warhol and Goldsmith both meant to charge for “depict[ing] Prince in magazine stories about Prince“). We instead asked whether 2 Live Crew had added significant “new expression, meaning, [and] message“; and because we answered yes, we held that the group‘s rap song did not “merely supersede the objects of the original creation.” 510 U. S., at 579 (internal quotation marks and alteration omitted). Similarly, in Google, we took for granted that Google (the copier) and Sun (the original author) both meant to market software platforms facilitating the same tasks—just as (in the majority‘s refrain) Warhol and Goldsmith both wanted to market images depicting the same subject. See 593 U. S., at ___, ___ (slip op., at 25, 27). “So what?” was our basic response. Google‘s copying had enabled the company to make a “highly creative and innovative tool,” advancing “creative progress” and thus serving “the basic constitutional objective of copyright.” Id., at ___ (slip op., at 25) (internal quotation marks omitted). Search today‘s opinion high and low, you will see no such awareness of how copying can help produce valuable new works.
Nor does our precedent support the majority‘s strong distinction between follow-on works that “target” the original and those that do not. Ante, at 35. (Even the majority does not claim that anything in the text does so.) True enough that the rap song in Campbell fell into the former category: 2 Live Crew urged that its work was a parody of Orbison‘s song. But even in discussing the value of parody, Campbell made clear the limits of targeting‘s importance. The Court observed that as the “extent of transformation” increases, the relevance of targeting decreases. 510 U. S., at 581, n. 14. Google proves the point. The new work there did not parody, comment on, or otherwise direct itself to the old: The former just made use of the latter for its own devices. Yet that fact never made an appearance in the Cоurt‘s opinion; what mattered instead was the “highly creative” use
And there‘s the rub. (Yes, that‘s mostly Shakespeare.) As Congress knew, and as this Court once saw, new creations come from building on—and, in the process, transforming—those coming before. Today‘s decision stymies and suppresses that process, in art and every other kind of creative endeavor. The decision enhances a copyright holder‘s power to inhibit artistic development, by enabling her to block even the use of a work to fashion something quite different. Or viewed the other way round, the decision impedes non-copyright holders’ artistic pursuits, by preventing them from making even the most novel uses of existing materials. On either account, the public loses: The decision operates to constrain creative expression.8
The effect, moreover, will be dramatic. Return again to Justice Story, see supra, at 11-12: “[I]n literature, in science and in art, there are, and can be, few, if any, things” that are “new and original throughout.” Campbell, 510 U. S., at 575 (quoting Emerson, 8 F. Cas., at 619). Every work “borrows, and must necessarily” do so. 510 U. S., at 575. Creators themselves know that fact deep in their bones. Here is Mark Twain on the subject: “The kern[e]l, the soul—let us go further and say the substance, the bulk, the actual and valuable material” of creative works—all are “consciously and unconsciously drawn from a million outside sources.” Letter from M. Twain to H. Keller, in 2 Mark Twain‘s Letters 731 (1917); see also id., at 732 (quoting Oliver Wendell Holmes—no, not that one, his father the poet—as saying “I have never originated anything altogether myself, nor met anybody who had“). “[A]ppropriation, mimicry, quotation, allusion and sublimated collaboration,” novelist Jonathan Lethem has explained, are “a kind of sine qua non of the creative act, cutting across all forms and genres in the realm of cultural production.” The Ecstasy of Influence, in Harper‘s Magazine 61 (Feb. 2007). Or as Mary Shelley once wrote, there is no such thing as “creating out of [a] void.” Frankenstein ix (1831).9
And if you think that‘s just Shakespeare, here are a couple more. (Once you start looking, examples are everywhere.) Lolita, though hard to read today, is usually thought one of the greatest novels of the 20th century. But the plotline—an adult man takes a room as a lodger; embarks on an obsessive sexual relationship with the preteen daughter of the house; and eventually survives her death, remaining marked forever—appears in a story by Heinz von Lichberg written a few decades earlier. Oh, and the girl‘s name is Lolita in both versions. See generally M. Maar, The Two Lolitas (2005). All that said, the two works have little in common artistically; nothing literary critics admire in the second Lolita is found in the first. But to the majority? Just two stories of revoltingly lecherous men, published for profit. So even factor 1 of the fair-use inquiry would not aid Nabokov. Or take one of the most famed adventure stories ever told. Here is the provenance of Treasure Island, as Robert Louis Stevenson himself described it:
“No doubt the parrot once belonged to Robinson Crusoe. No doubt the skeleton is conveyed from [Edgar Allan] Poe. I think little of these, they are trifles and details; and no man can hope to have a monopoly of skeletons or make a corner in talking birds. . . . It is my debt to Washington Irving that exercises my conscience, and justly so, for I believe plagiarism was rarely carried farther. Billy Bones, his chest, the company in the parlor, the whole inner spirit and a good deal of the material detail of my first chapters—all were there, all were the property of Washington Irving.” My First Book—Treasure Island, in 21 Syracuse University Library Associates Courier No. 2, p. 84 (1986).
Odd that a book about pirates should have practiced piracy? Not really, because tons of books do—and not many in order to “target” or otherwise comment on the originals. “Thomas Mann, himself a master of [the art,] called [it] ‘higher cribbing.‘” Lethem 59. The point here is that most writers worth their salt steal other writers’ moves—and put them to other, often better uses. But the majority would say, again and yet again in the face of such transformative
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, curtailеd—the development of the genre. And also of a fair bit of rock and roll. “Just another rendition of 12-bar blues for sale in record stores,” the majority would say to Chuck Berry (Johnny B. Goode), Bill Haley (Rock Around the Clock), Jimi Hendrix (Red House), or Eric Clapton (Crossroads). Or to switch genres, imagine a pioneering classical composer (Haydn?) had copyrighted the three-section sonata form. “One more piece built on the same old structure, for use in concert halls,” the majority might say to Mozart and Beethoven and countless others: “Sure, some new notes, but the backbone of your compositions is identical.”
And then, there‘s the appropriation of those notes, and accompanying words, for use in new and different ways. Stravinsky reportedly said that great composers do not imitate, but instead steal. See P. Yates, Twentieth Century Music 41 (1967). At any rate, he would have known. He took music from all over—from Russian folk melodies to Schoenberg—and made it inimitably his own. And then—as these things go—his music became a source for others. Charlie Parker turned The Rite of Spring into something of a jazz standard: You can still hear the Stravinsky lurking, but jazz musicians make the composition a thing of a different kind. And popular music? I won‘t point fingers, but maybe rock‘s only Nobel Laureate and greatest-ever lyricist is known for some appropriations? See M. Gilmore, The Rolling Stone Interview, Rolling Stone, Sept. 27, 2012, pp. 51, 81.10 He wouldn‘t be alone. Here‘s what songwriter Nick Cave (he of the Bad Seeds) once said about how music develops:
“The great beauty of contemporary music, and what gives it its edge and vitality, is its devil-may-care attitude toward appropriation—everybody is grabbing stuff from everybody else, all the time. It‘s a feeding frenzy of borrowed ideas that goes toward the advancement of rock music—the great artistic experiment of our era.” The Red Hand Files (Apr. 2020) (online source archived at https://www.supremecourt.gov).
But not as the majority sees the matter. Are these guys making money? Are they appropriating for some different reason than to critique the thing being borrowed? Then they‘re “shar[ing] the objectives” of the original work, and will get no benefit
Finally, back to the visual arts, for while Warhol may have been the master appropriator within that field, he had plenty of company; indeed, he worked within an established tradition going back centuries (millennia?). The representatives of three giants of modern art (you may know one for his use of comics) describe the tradition as follows: “[T]he use and reuse of existing imagery” are “part of art‘s lifeblood“—“not just in workaday practice or fledgling student efforts, but also in the revolutionary moments of art history.” Brief for Robert Rauschenberg, Roy Lichtenstein, and Joan Mitchell Foundations et al. as Amici Curiae 6.
Consider as one example the reclining nude. Probably the first such figure in Renaissance art was Giorgione‘s Sleeping Venus. (Note, though, in keeping with the “nothing comes from nothing” theme, that Giorgione apparently modeled his canvas on a woodcut illustration by Francesco Colonna.) Here is Giorgione‘s painting:
Giorgione, Sleeping Venus, c. 1510, oil on canvas
But things were destined not to end there. One of Giorgione‘s pupils was Titian, and the former student undertook to riff on his master. The resulting Venus of Urbino is a prototypical example of Renaissance imitatio—the creation of an original work from an existing model. See id., at 8; 1 G. Vasari, Lives of the Artists 31, 444 (G. Bull transl. 1965). You can see the resemblance—but also the difference:
Titian, Venus of Urbino, 1538, oil on canvas
And the reuse of past images was far from done. For here is Edouard 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
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 Velazquez‘s portrait of Pope Innocent X; on the right is Francis Bacon‘s Study After Velazquez‘s Portrait.
Velazquez, Pope Innocent X, c. 1650, oil on canvas
Francis Bacon, Study After Velazquez‘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 Velazquez‘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 Velazquez 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 Velazquez‘s study of magisterial power into one of mortal dread. Campbell, 510 U. S., at 579.
But the majority, from all it says, would find the change immaterial. Both paintings, after all, are “portraits of [Pope Innocent X] used to depict [Pope Innocent X]” for hanging in some interior space, ante, at 12-13; so on the majority‘s reasoning, someone in the market for a papal portrait could use either one, see ante, at 22-23. Velazquez‘s portrait, although Bacon‘s model, is not “the object of [his] commentary.” Ante, at 27; see A. Zweite,
The majority thus treats creativity as a trifling part of the fair-use inquiry, in disregard of settled copyright principles and what they reflect about the artistic process. On the majority‘s view, an artist had best not attempt to market even a transformative follow-on work—one that adds significant new expression, meaning, or message. That added value (unless it comes from critiquing the original) will no longer receive credit under factor 1. And so it can never hope to outweigh factor 4‘s assessment of the copyright holder‘s interests. The result will be what this Court has often warned against: suppression of “the very creativity which [copyright] law is designed to foster.” Stewart, 495 U. S., at 236; see supra, at 11-12. And not just on the margins. Creative progress unfolds through use and reuse, framing and reframing: One work builds on what has gone before; and later works build on that one; and so on through time. Congress grasped the idea when it directed courts to attend to the “purpose and character” of artistic borrow-ing—to what the borrower has made out of existing materials. That inquiry recognizes the value in using existing materials to fashion something new. And so too, this Court—from Justice Story‘s time to two Terms ago—has known that it is through such iterative processes that knowledge accumulates and art flourishes. But not anymore. The majority‘s decision is no “continuation” of “existing copyright law.” Ante, at 37. In declining to acknowledge the importance of transformative copying, the Court today, and for the first time, turns its back on how creativity works.
III
And the workings of creativity bring us back to Andy Warhol. For Warhol, as this Court noted in Google, is the very embodiment of transformative copying. He is proof of concept—that an artist working from a model can create important new expression. Or said more strongly, that appropriations can help bring great art into being. Warhol is a towering figure in modern art not despite but because of his use of source materials. His work—whether Soup Cans and Brillo Boxes or Marilyn and Prince—turned something not his into something all his own. Except that it also became all of ours, because his work today occupies a significant place not only in our museums but in our wider artistic culture. And if the majority somehow cannot see it—well, that‘s what evidentiary records are for. The one in this case contained undisputed testimony, and lots of it, that Warhol‘s Prince series conveyed a fundamentally different idea, in a fundamentally different artistic style, than the photo he started from. That is not the end of the fair-use inquiry. The test, recall, has four parts, with one focusing squarely on Goldsmith‘s interests. But factor 1 is supposed to measure what Warhol has done. Did his “new work” “add[] something new, with a further purpose or different character“? Campbell, 510 U. S., at 579. Did it “alter[] the first with new expression, meaning, or message“? Ibid. It did, and it did. In failing to give Warhol credit for that transformation, the majority distorts ultimate resolution of the fair-use question.
Still more troubling are the consequences of today‘s ruling for other artists. If Warhol does not get credit for transformative copying, who will? And when аrtists less famous than Warhol cannot benefit from fair use, it will matter even more. Goldsmith would probably have granted Warhol a license with few conditions, and for a price well within his budget. But as our precedents show, licensors sometimes place stringent limits on follow-on uses, especially to prevent kinds of expression they disapprove. And licensors may charge fees that prevent many or most artists from gaining access to original works. Of course, that is all well and good if an artist wants merely to copy the original and market it as his own. Preventing those uses—and thus incentivizing the creation of original works—is what copyrights are for. But when the artist wants to make a transformative use, a different issue is presented. By now, the reason why should be obvious. “Inhibit[ing] subsequent writers” and artists from “improv[ing] upon prior works“—as the majority does today—will “frustrate the very ends sought to be attained” by copyright law. Harper & Row, 471 U. S., at 549. It will stifle creativity of every sort. It will impede new art and music and literature. It will thwart the expression of new ideas and the attainment of new knowledge. It will make our world poorer.
Notes
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, 510 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.