# Andy Warhol Foundation v. Goldsmith/Opinion of the Court

Notice: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 21–869
ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS, INC., PETITIONER v. LYNN GOLDSMITH, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT [May 18, 2023]
Justice Sotomayor delivered the opinion of the Court.
This copyright case involves not one, but two artists. The first, Andy Warhol, is well known. His images of products like Campbell’s soup cans and of celebrities like Marilyn Monroe appear in museums around the world. Warhol’s contribution to contemporary art is undeniable.
The second, Lynn Goldsmith, is less well known. But she too was a trailblazer. Goldsmith began a career in rock-and-roll photography when there were few women in the genre. Her award-winning concert and portrait images, however, shot to the top. Goldsmith’s work appeared in Life, Time, Rolling Stone, and People magazines, not to mention the National Portrait Gallery and the Museum of Modern Art. She captured some of the 20th century’s greatest rock stars: Bob Dylan, Mick Jagger, Patti Smith, Bruce Springsteen, and, as relevant here, Prince.
In 1984, Vanity Fair sought to license one of Goldsmith’s Prince photographs for use as an “artist reference.” The magazine wanted the photograph to help illustrate a story about the musician. Goldsmith agreed, on the condition ​that the use of her photo be for “one time” only. 1 App. 85. The artist Vanity Fair hired was Andy Warhol. Warhol made a silkscreen using Goldsmith’s photo, and Vanity Fair published the resulting image alongside an article about Prince. The magazine credited Goldsmith for the “source photograph,” and it paid her $400. 2 id., at 323, 325–326.
Warhol, however, did not stop there. From Goldsmith’s photograph, he derived 15 additional works. Later, the Andy Warhol Foundation for the Visual Arts, Inc. (AWF) licensed one of those works to Condé Nast, again for the purpose of illustrating a magazine story about Prince. AWF came away with $10,000. Goldsmith received nothing.
When Goldsmith informed AWF that she believed its use of her photograph infringed her copyright, AWF sued her. The District Court granted summary judgment for AWF on its assertion of “fair use,” 17 U. S. C. §107, but the Court of Appeals for the Second Circuit reversed. In this Court, the sole question presented is whether the first fair use factor, “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,” §107(1), weighs in favor of AWF’s recent commercial licensing to Condé Nast. On that narrow issue, and limited to the challenged use, the Court agrees with the Second Circuit: The first factor favors Goldsmith, not AWF.
I
Lynn Goldsmith is a professional photographer. Her specialty is concert and portrait photography of musicians. At age 16, Goldsmith got one of her first shots: an image of the Beatles’ “trendy boots” before the band performed live on The Ed Sullivan Show. S. Michel, Rock Portraits, N. Y. Times, Dec. 2, 2007, p. G64. Within 10 years, Goldsmith had photographed everyone from Led Zeppelin to James Brown (the latter in concert in Kinshasa, no less). At that time, Goldsmith “had few female peers.” Ibid. But she was ​a self-starter. She quickly became “a leading rock photographer” in an era “when women on the scene were largely dismissed as groupies.” Ibid.
In 1981, Goldsmith convinced Newsweek magazine to hire her to photograph Prince Rogers Nelson, then an “up and coming” and “hot young musician.” 2 App. 315. Newsweek agreed, and Goldsmith took photos of Prince in concert at the Palladium in New York City and in her studio on West 36th Street. Newsweek ran one of the concert photos, together with an article titled “ ‘The Naughty Prince of Rock.’ ” Id., at 320. Goldsmith retained the other photos. She holds copyright in all of them.
One of Goldsmith’s studio photographs, a black and white portrait of Prince, is the original copyrighted work at issue in this case. See fig. 1, infra.
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.
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, Condé Nast. See fig. 3, infra.
Figure 3. An orange silkscreen portrait of Prince on the cover of a special edition magazine published in 2016 by Condé Nast.
Prince instead. The magazine, titled “The Genius of Prince,” is a tribute to “Prince Rogers Nelson, 1958–2016.” It is “devoted to Prince.” 2 App. 352. Condé Nast paid AWF $10,000 for the license. Goldsmith received neither a fee nor a source credit.
Remember that Goldsmith, too, had licensed her Prince images to magazines such as Newsweek, to accompany a story about the musician, and Vanity Fair, to serve as an artist reference. But that was not all. Between 1981 and 2016, Goldsmith’s photos of Prince appeared on or between the covers of People, Readers Digest, Guitar World, and Musician magazines. See, e.g., fig. 4, infra.
Figure 4. One of Lynn Goldsmith’s photographs of Prince on the cover of Musician magazine.
People magazine, in fact, paid Goldsmith $1,000 to use one of her copyrighted photographs in a special collector’s edition, “Celebrating Prince: 1958–2016,” just after Prince died. People’s tribute, like Condé Nast’s, honors the life and music of Prince. Other magazines, including Rolling Stone and Time, also released special editions. See fig. 5, infra. All of them depicted Prince on the cover. All of them used a copyrighted photograph in service of that object. And all of them (except Condé Nast) credited the photographer.
Figure 5. Four special edition magazines commemorating Prince after he died in 2016.
When Goldsmith saw Orange Prince on the cover of Condé Nast’s special edition magazine, she recognized her work. “It’s the photograph,” she later testified. 1 App. 290. Orange Prince crops, flattens, traces, and colors the photo but otherwise does not alter it. See fig. 6, infra.
Figure 6. Warhol’s orange silkscreen portrait of Prince superimposed on Goldsmith’s portrait photograph.
Goldsmith notified AWF of her belief that it had infringed her copyright. AWF then sued Goldsmith and her agency for a declaratory judgment of noninfringement or, in the alternative, fair use. Goldsmith counterclaimed for infringement.
The District Court granted summary judgment for AWF. 382 F. Supp. 3d 312, 316 (SDNY 2019). The court considered the four fair use factors enumerated in 17 U. S. C. §107 and held that the Prince Series works made fair use of Goldsmith’s photograph. As to the first factor, the works were “transformative” because, looking at them and the photograph “side-by-side,” they “have a different character, give Goldsmith’s photograph a new expression, and employ new aesthetics with creative and communicative results distinct from Goldsmith’s.” 382 F. Supp. 3d, at 325–326 (internal quotation marks and alterations omitted). In particular, the works “can reasonably be perceived to have transformed Prince from a vulnerable, uncomfortable person to an ​iconic, larger-than-life figure,” such that “each Prince Series work is immediately recognizable as a ‘Warhol’ rather than as a photograph of Prince.” Id., at 326. Although the second factor, the nature of Goldsmith’s copyrighted work (creative and unpublished), “would ordinarily weigh in [her] favor … , this factor [was] of limited importance because the Prince Series works are transformative.” Id., at 327. The third factor, the amount and substantiality of the portion used in relation to the copyrighted work, favored AWF because, according to the District Court, “Warhol removed nearly all the photograph’s protectible elements in creating the Prince Series.” Id., at 330. Finally, the fourth factor likewise favored AWF because “the Prince Series works are not market substitutes that have harmed—or have the potential to harm—Goldsmith.” Id., at 331.
The Court of Appeals for the Second Circuit reversed and remanded. 11 F. 4th 26, 54 (2021). It held that all four fair use factors favored Goldsmith. On the first factor, “the purpose and character of the use,” §107(1), the Court of Appeals rejected the notion that “any secondary work that adds a new aesthetic or new expression to its source material is necessarily transformative.” Id., at 38–39. The question was, instead, “whether the secondary work’s use of its source material is in service of a fundamentally different and new artistic purpose and character.” Id., at 42 (internal quotation marks omitted). Such “transformative purpose and character must, at bare minimum, comprise something more than the imposition of another artist’s style on the primary work.” Ibid. Here, however, “the overarching purpose and function of the two works at issue … is identical, not merely in the broad sense that they are created as works of visual art, but also in the narrow but essential sense that they are portraits of the same person.” Ibid. (footnote omitted). The Court of Appeals also rejected the District Court’s logic that “ ‘each Prince Series work’ ” is transformative because it “ ‘is immediately recognizable as a “Warhol,” ’ ” ​which the Court of Appeals believed would “create a celebrity-plagiarist privilege.” Id., at 43; see also ibid. (“[T]he fact that Martin Scorsese’s recent film The Irishman is recognizably ‘a Scorsese’ does not absolve him of the obligation to license the original book” (some internal quotation marks and alterations omitted)).
On the other three factors, the Court of Appeals found that the creative and unpublished nature of Goldsmith’s photograph favored her, id., at 45; that the amount and substantiality of the portion taken (here, “the ‘essence’ ” of the photograph) was not reasonable in relation to the purpose of the use, id., at 45–47; and that AWF’s commercial licensing encroached on Goldsmith’s protected market to license her photograph “to publications for editorial purposes and to other artists to create derivative works,” id., at 48–51. The court noted that there was “no material dispute that both Goldsmith and AWF have sought to license (and indeed have successfully licensed) their respective depictions of Prince to popular print magazines to accompany articles about him.” Id., at 49 (footnote omitted).
Finally, although the District Court had not reached the issue, the Court of Appeals rejected AWF’s argument that the Prince Series works were not substantially similar to Goldsmith’s photograph. See id., at 52–54.
Judge Jacobs concurred. He stressed that the Court of Appeals’ holding “d[id] not consider, let alone decide, whether the infringement here encumbers the original Prince Series works.” Id., at 54. Instead, “the only use at ​issue” was “the Foundation’s commercial licensing” of images of the Prince Series. Id., at 55.
This Court granted certiorari. 596 U. S. ___ (2022).
II
AWF does not challenge the Court of Appeals’ holding that Goldsmith’s photograph and the Prince Series works are substantially similar. The question here is whether AWF can defend against a claim of copyright infringement because it made “fair use” of Goldsmith’s photograph. 17 U. S. C. §107.
Although the Court of Appeals analyzed each fair use factor, the only question before this Court is whether the court below correctly held that the first factor, “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,” §107(1), weighs in Goldsmith’s favor. AWF contends that the Prince Series works are “transformative,” and that the first factor therefore weighs in its favor, because the works convey a different meaning or message than the photograph. Brief for Petitioner 33. The Court of Appeals erred, according to AWF, by not considering that new expression. Id., at 47–48.
But the first fair use factor instead focuses on whether an allegedly infringing use has a further purpose or different character, which is a matter of degree, and the degree of difference must be weighed against other considerations, like commercialism. Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569, 579 (1994). Although new expression may be relevant to whether a copying use has a sufficiently distinct purpose or character, it is not, without more, dispositive of the first factor.
Here, the specific use of Goldsmith’s photograph alleged to infringe her copyright is AWF’s licensing of Orange Prince to Condé Nast. As portraits of Prince used to depict ​Prince in magazine stories about Prince, the original photograph and AWF’s copying use of it share substantially the same purpose. Moreover, the copying use is of a commercial nature. Even though Orange Prince adds new expression to Goldsmith’s photograph, as the District Court found, this Court agrees with the Court of Appeals that, in the context of the challenged use, the first fair use factor still favors Goldsmith.
A
The Copyright Act encourages creativity by granting to the author of an original work “a bundle of exclusive rights.” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539, 546 (1985); see U. S. Const., Art. I, §8, cl. 8 (“The Congress shall have Power … To Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”). That bundle includes the rights to reproduce the copyrighted work, to prepare derivative works, and, in the case of pictorial or graphic works, to display the copyrighted work publicly. 17 U. S. C. §106.
The Act, however, “reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.” Twentieth Century Music Corp. v. Aiken, 422 U. S. 151, 156 (1975). Copyright thus trades off the benefits of incentives to create against the costs of restrictions on copying. The Act, for example, limits the duration of copyright, §§302–305, as required by the Constitution; makes facts and ideas uncopyrightable, §102; and limits the scope of copyright owners’ exclusive rights, §§107–122.
This balancing act between creativity and availability (including for use in new works) is reflected in one such limitation, the defense of “fair use.” In 1976, Congress codified ​the common-law doctrine of fair use in §107, which provides: “[T]he fair use of a copyrighted work, … for purposes such as criticism, comment, news reporting, teaching … , scholarship, or research, is not an infringement of copyright.” To determine whether a particular use is “fair,” the statute sets out four factors to be considered:
   “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
   “(2) the nature of the copyrighted work;
   “(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
   “(4) the effect of the use upon the potential market for or value of the copyrighted work.”
The fair use doctrine “permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Stewart v. Abend, 495 U. S. 207, 236 (1990) (internal quotation marks omitted). The Act’s fair use provision, in turn, “set[s] forth general principles, the application of which requires judicial balancing, depending upon relevant circumstances.” Google LLC v. Oracle America, Inc., 593 U. S. ___, ___ (2021) (slip op., at 14). Because those principles apply across a wide range of copyrightable material, from books to photographs to software, fair use is a “flexible” concept, and “its application may well vary depending on context.” Id., at ___ (slip op., at 15). For example, in applying the fair use provision, “copyright’s protection may be stronger where the copyrighted material … serves an artistic rather than a utilitarian function.” Ibid.
1
The first fair use factor is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” §107(1). This ​factor considers the reasons for, and nature of, the copier’s use of an original work. The “central” question it asks is “whether the new work merely ‘supersede[s] the objects’ of the original creation … (‘supplanting’ the original), or instead adds something new, with a further purpose or different character.” Campbell, 510 U. S., at 579 (quoting Folsom v. Marsh, 9 F. Cas. 342, 348 (No. 4,901) (CC Mass. 1841) (Story, J.), and Harper & Row, 471 U. S., at 562). In that way, the first factor relates to the problem of substitution—copyright’s bête noire. The use of an original work to achieve a purpose that is the same as, or highly similar to, that of the original work is more likely to substitute for, or “ ‘supplan[t],’ ” the work, ibid.
Consider the “purposes” listed in the preamble paragraph of §107: “criticism, comment, news reporting, teaching … , scholarship, or research.” Although the examples given are “ ‘illustrative and not limitative,’ ” they reflect “the sorts of copying that courts and Congress most commonly ha[ve] found to be fair uses,” and so may guide the first factor inquiry. Campbell, 510 U. S., at 577–578 (quoting §101). As the Court of Appeals observed, the “examples are easily understood,” as they contemplate the use of an original work to “serv[e] a manifestly different purpose from the [work] itself.” 11 F. 4th, at 37. Criticism of a work, for instance, ordinarily does not supersede the objects of, or supplant, the work. Rather, it uses the work to serve a distinct end.
Not every instance will be clear cut, however. Whether a use shares the purpose or character of an original work, or instead has a further purpose or different character, is a matter of degree. Most copying has some further purpose, ​in the sense that copying is socially useful ex post. Many secondary works add something new. That alone does not render such uses fair. Rather, the first factor (which is just one factor in a larger analysis) asks “whether and to what extent” the use at issue has a purpose or character different from the original. Campbell, 510 U. S., at 579 (emphasis added). The larger the difference, the more likely the first factor weighs in favor of fair use. The smaller the difference, the less likely.
A use that has a further purpose or different character is said to be “ ‘transformative.’ ” Ibid. (quoting P. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1111 (1990) (hereinafter Leval)). As before, “transformativeness” is a matter of degree. See Campbell, 510 U. S., at 579. That is important because the word “transform,” though not included in §107, appears elsewhere in the Copyright Act. The statute defines derivative works, which the copyright owner has “the exclusive righ[t]” to prepare, §106(2), to include “any other form in which a work may be recast, transformed, or adapted,” §101. In other words, the owner has a right to derivative transformations of her work. Such transformations may be substantial, like the adaptation of a book into a movie. To be sure, this right is “[s]ubject to” fair use. §106; see also §107. The two are not mutually exclusive. But an overbroad concept of transformative use, one that includes any further purpose, or any different character, would narrow the copyright owner’s exclusive right to create derivative works. To preserve that right, the degree of transformation required to make “transformative” use of an original must go beyond that required to qualify as a derivative.
​For example, this Court in Campbell considered whether parody may be fair use. In holding that it may, the Court explained that “parody has an obvious claim to transformative value” because “it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one.” 510 U. S., at 579. The use at issue in Campbell was 2 Live Crew’s copying of certain lyrics and musical elements from Roy Orbison’s song, “Oh, Pretty Woman,” to create a rap derivative titled “Pretty Woman.” Without a doubt, 2 Live Crew transformed Orbison’s song by adding new lyrics and musical elements, such that “Pretty Woman” had a new message and different aesthetic than “Oh, Pretty Woman.” Indeed, the whole genre of music changed from rock ballad to rap. That was not enough for the first factor to weigh in favor of fair use, however. The Court found it necessary to determine whether 2 Live Crew’s transformation of Orbison’s song rose to the level of parody, a distinct purpose of commenting on the original or criticizing it. See id., at 580–583.
Distinguishing between parody (which targets an author or work for humor or ridicule) and satire (which ridicules society but does not necessarily target an author or work), the Court further explained that “[p]arody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.” Id., at 580–581. More generally, when “commentary has no ​critical bearing on the substance or style of the original composition, … the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger.” Id., at 580; see also id., at 597 (Kennedy, J., concurring).
This discussion illustrates two important points: First, the fact that a use is commercial as opposed to nonprofit is an additional “element of the first factor.” Id., at 584. The commercial nature of the use is not dispositive. Ibid.; Google, 593 U. S., at ___ (slip op., at 27). But it is relevant. As the Court explained in Campbell, it is to be weighed against the degree to which the use has a further purpose or different character. See 510 U. S., at 579 (“[T]he more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use”); see also id., at 580, 585.
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. An independent justification like this is particularly relevant to assessing fair use where an original work and copying use share the same or highly similar purposes, or where wide dissemination of a secondary work would otherwise run the risk of substitution for the original or licensed derivatives of it. See id., at 580, n. 14; Harper & Row, 471 U. S., at 557. Once again, the question of justification is one of degree. See Leval 1111 (“[I]t is not sufficient simply to conclude whether or not justification exists. The question remains how powerful, or persuasive, is the justification, because the court must weigh the strength of the secondary user’s justification against factors favoring the copyright owner”).
In sum, the first fair use factor considers whether the use of a copyrighted work has a further purpose or different character, which is a matter of degree, and the degree of ​difference must be balanced against the commercial nature of the use. If an original work and a secondary use share the same or highly similar purposes, and the secondary use is of a commercial nature, the first factor is likely to weigh against fair use, absent some other justification for copying.
2
The fair use provision, and the first factor in particular, requires an analysis of the specific “use” of a copyrighted work that is alleged to be “an infringement.” §107. The same copying may be fair when used for one purpose but not another. See Campbell, 510 U. S., at 585 (contrasting the use of a copyrighted work “to advertise a product, even in a parody,” with “the sale of a parody for its own sake, let alone one performed a single time by students in school”); Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417, 449–451 (1984) (contrasting the recording of TV ​“for a commercial or profit-making purpose” with “private home use”).
Here, Goldsmith’s copyrighted photograph has been used in multiple ways: After Goldsmith licensed the photograph to Vanity Fair to serve as an artist reference, Warhol used the photograph to create the Vanity Fair illustration and the other Prince Series works. Vanity Fair then used the photograph, pursuant to the license, when it published Warhol’s illustration in 1984. Finally, AWF used the photograph when it licensed an image of Warhol’s Orange Prince to Condé Nast in 2016. Only that last use, however, AWF’s commercial licensing of Orange Prince to Condé Nast, is alleged to be infringing. We limit our analysis accordingly. In particular, the Court expresses no opinion as to the creation, display, or sale of any of the original Prince Series works.
​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. Such “environment[s]” are not “distinct and different.” Google, 593 ​U. S., at ___ (slip op., at 26). AWF’s licensing of the Orange Prince image thus “ ‘supersede[d] the objects,’ ” Campbell, 510 U. S., at 579, i.e., shared the objectives, of Goldsmith’s photograph, even if the two were not perfect substitutes.
The use also “is of a commercial nature.” §107(1). Just as Goldsmith licensed her photograph to Vanity Fair for $400, AWF licensed Orange Prince to Condé Nast for $10,000. The undisputed commercial character of AWF’s use, though not dispositive, “tends to weigh against a finding of fair use.” Harper & Row, 471 U. S., at 562.
​Taken together, these two elements—that Goldsmith’s photograph and AWF’s 2016 licensing of Orange Prince share substantially the same purpose, and that AWF’s use of Goldsmith’s photo was of a commercial nature—counsel against fair use, absent some other justification for copying. That is, although a use’s transformativeness may outweigh its commercial character, here, both elements point in the same direction.
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.
Yet not all of Warhol’s works, nor all uses of them, give rise to the same fair use analysis. In fact, Soup Cans well illustrates the distinction drawn here. The purpose of Campbell’s logo is to advertise soup. Warhol’s canvases do
Figure 7. A print based on the Campbell’s soup can, one of Warhol’s works that replicates a copyrighted advertising logo.
Moreover, a further justification for Warhol’s use of Campbell’s logo is apparent. His Soup Cans series targets the logo. That is, the original copyrighted work is, at least in part, the object of Warhol’s commentary. It is the very nature of Campbell’s copyrighted logo—well known to the public, designed to be reproduced, and a symbol of an everyday item for mass consumption—that enables the commentary. Hence, the use of the copyrighted work not only serves a completely different purpose, to comment on consumerism rather than to advertise soup, it also “conjures up” the original work to “she[d] light” on the work itself, not just the subject of the work. Campbell, 510 U. S., at 579, 588. Here, by contrast, AWF’s use of Goldsmith’s photograph does not target the photograph, nor has AWF offered another compelling justification for the use. See infra, at 34–35, and nn. 20–21.
B
AWF contends, however, that the purpose and character of its use of Goldsmith’s photograph weighs in favor of fair use because Warhol’s silkscreen image of the photograph, like the Campbell’s Soup Cans series, has a new meaning or message. The District Court, for example, understood the Prince Series works to portray Prince as “an iconic, larger-than-life figure.” 382 F. Supp. 3d, at 326. AWF also asserts that the works are a comment on celebrity. In particular, “Warhol’s Prince Series conveys the dehumanizing nature of celebrity.” Brief for Petitioner 44. According to AWF, that new meaning or message, which the Court of Appeals ignored, makes the use “transformative” in the fair use sense. See id., at 44–48. We disagree.
1
Campbell did describe a transformative use as one that “alter[s] the first [work] with new expression, meaning, or message.” 510 U. S., at 579; see also Google, 593 U. S., at ___ (slip op., at 24). That description paraphrased Judge Leval’s law review article, which referred to “new information, new aesthetics, new insights and understandings.” Leval 1111. (Judge Leval contrasted such additions with secondary uses that “merely repackag[e]” the original. Ibid.) But Campbell cannot be read to mean that §107(1) weighs in favor of any use that adds some new expression, meaning, or message.
Otherwise, “transformative use” would swallow the copyright owner’s exclusive right to prepare derivative works. Many derivative works, including musical arrangements, film and stage adaptions, sequels, spinoffs, and others that “recast, transfor[m] or adap[t]” the original, §101, add new expression, meaning or message, or provide new information, new aesthetics, new insights and understandings. That is an intractable problem for AWF’s interpretation of transformative use. The first fair use factor would not ​weigh in favor of a commercial remix of Prince’s “Purple Rain” just because the remix added new expression or had a different aesthetic. A film or musical adaptation, like that of Alice Walker’s The Color Purple, might win awards for its “significant creative contribution”; alter the meaning of a classic novel; and add “important new expression,” such as images, performances, original music, and lyrics. Post, at 11, 23 (Kagan, J., dissenting) (internal quotation marks omitted). But that does not in itself dispense with the need for licensing.
Campbell is again instructive. 2 Live Crew’s version of Orbison’s song easily conveyed a new meaning or message. It also had a different aesthetic. Yet the Court went further, examining whether and to what extent 2 Live Crew’s song had the parodic purpose of “commenting on the original or criticizing it.” 510 U. S., at 583. Parody is, of course, a kind of message. Moreover, the Court considered what the words of the songs might have meant to determine whether parody “reasonably could be perceived.” Ibid. But new meaning or message was not sufficient. If it had been, the Court could have made quick work of the first fair use factor. Instead, meaning or message was simply relevant to whether the new use served a purpose distinct from the original, or instead superseded its objects. That was, and is, the “central” question under the first factor. Id., at 579.
​The dissent commits the same interpretive error as AWF: It focuses on Campbell’s paraphrase, yet ignores the rest of that decision’s careful reasoning. Indeed, upon reading the dissent, someone might be surprised to learn that Campbell was about parody at all. Had expert testimony confirmed the obvious fact that 2 Live Crew’s “Pretty Woman” differed in aesthetics and meaning from Orbison’s original, that would have been the end of the dissent’s analysis. See post, at 14–17 (opinion of Kagan, J.). Not the Court’s, however. Campbell was the culmination of a long line of cases and scholarship about parody’s claim to fairness in borrowing. “For purposes of copyright law,” the Court explained, “the heart of any parodist’s claim to quote from existing material is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works.” 510 U. S., at 580. Campbell thus drew a nuanced distinction between parody and satire: While parody cannot function unless it conjures up the original, “satire can stand on its own two feet and so requires justification for … borrowing.” Id., at 580–581. The objective meaning or message of 2 Live Crew’s song was relevant to this inquiry into the reasons for copying, but any “new expression, meaning, or message” was not the test.
What role meaning or message played in the Court of Appeals’ analysis here is not entirely clear. The court correctly ​rejected the idea “that any secondary work that adds a new aesthetic or new expression to its source material is necessarily transformative.” 11 F. 4th, at 38–39. It also appeared correctly to accept that meaning or message is relevant to, but not dispositive of, purpose. See id., at 41 (“[T]he secondary work itself must reasonably be perceived as embodying a distinct artistic purpose, one that conveys a new meaning or message separate from its source material”); id., at 42 (“[T]he judge must examine whether the secondary work’s use of its source material is in service of a fundamentally different and new artistic purpose and character, [which] must, at a bare minimum, comprise something more than the imposition of another artist’s style on the primary work … ” (internal quotation marks omitted)).
Elsewhere, however, the Court of Appeals stated that “the district judge should not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue.” Id., at 41. That statement is correct in part. A court should not attempt to evaluate the artistic significance of a particular work. See Bleistein v. Donaldson Lithographing Co., 188 U. S. 239, 251 (1903) (Holmes, J.) (“It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [a work], outside of the narrowest and most obvious limits”). Nor does the subjective intent of ​the user (or the subjective interpretation of a court) determine the purpose of the use. But the meaning of a secondary work, as reasonably can be perceived, should be considered to the extent necessary to determine whether the purpose of the use is distinct from the original, for instance, because the use comments on, criticizes, or provides otherwise unavailable information about the original, see, e.g., Authors Guild, 804 F. 3d, at 215–216.
2
The District Court determined that “[t]he Prince Series works can reasonably be perceived to have transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure.” 382 F. Supp. 3d, at 326. To make that determination, the District Court relied, in part, on testimony by Goldsmith that her photographs of Prince show that he “is ‘not a comfortable person’ and that he is ‘a vulnerable human being.’ ” Ibid. An expert on Warhol, meanwhile, testified that the Prince Series works depict “Prince as a kind of icon or totem of something,” a “masklike simulacrum of his actual existence.” 1 App. 249, 257.
The Court of Appeals noted, correctly, that “whether a work is transformative cannot turn merely on the stated or perceived intent of the artist or the meaning or impression that a critic—or for that matter, a judge—draws from the work.” 11 F. 4th, at 41. “[O]therwise, the law may well ​‘recogniz[e] any alteration as transformative.’ ” Ibid. (quoting 4 Nimmer, Copyright §13.05[B][6]). Whether the purpose and character of a use weighs in favor of fair use is, instead, an objective inquiry into what use was made, i.e., what the user does with the original work.
Granting the District Court’s conclusion that Orange Prince reasonably can be perceived to portray Prince as iconic, whereas Goldsmith’s portrayal is photorealistic, that difference must be evaluated in the context of the specific use at issue. The use is AWF’s commercial licensing of Orange Prince to appear on the cover of Condé Nast’s special commemorative edition. The purpose of that use is, still, to illustrate a magazine about Prince with a portrait of Prince. Although the purpose could be more specifically described as illustrating a magazine about Prince with a portrait of Prince, one that portrays Prince somewhat differently from Goldsmith’s photograph (yet has no critical bearing on her photograph), that degree of difference is not enough for the first factor to favor AWF, given the specific context of the use.
To hold otherwise would potentially authorize a range of commercial copying of photographs, to be used for purposes that are substantially the same as those of the originals. As long as the user somehow portrays the subject of the photograph differently, he could make modest alterations to the original, sell it to an outlet to accompany a story about the subject, and claim transformative use. Many photographs will be open to various interpretations. A subject as open to interpretation as the human face, for example, reasonably can be perceived as conveying several possible meanings. The application of an artist’s characteristic style to bring out a particular meaning that was available in the photograph is less likely to constitute a “further purpose” as Campbell used the term. 510 U. S., at 579.
​AWF asserts another, albeit related, purpose, which is to comment on the “dehumanizing nature” and “effects” of celebrity. Brief for Petitioner 44, 51. No doubt, many of Warhol’s works, and particularly his uses of repeated images, can be perceived as depicting celebrities as commodities. But again, even if such commentary is perceptible on the cover of Condé Nast’s tribute to “Prince Rogers Nelson, 1958–2016,” on the occasion of the man’s death, AWF has a problem: The asserted commentary is at Campbell’s lowest ebb. Because it “has no critical bearing on” Goldsmith’s photograph, the commentary’s “claim to fairness in borrowing from” her work “diminishes accordingly (if it does not vanish).” 510 U. S., at 580. The commercial nature of the use, on the other hand, “loom[s] larger.” Ibid.
​Here, the circumstances of AWF’s 2016 licensing outweigh its diminished claim to fairness in copying under the first factor. Like satire that does not target an original work, AWF’s asserted commentary “can stand on its own two feet and so requires justification for the very act of borrowing.” Id., at 581. Moreover, because AWF’s commercial use of Goldsmith’s photograph to illustrate a magazine about Prince is so similar to the photograph’s typical use, a particularly compelling justification is needed. Yet AWF offers no independent justification, let alone a compelling one, for copying the photograph, other than to convey a new meaning or message. As explained, that alone is not enough for the first factor to favor fair use.
Copying might have been helpful to convey a new meaning or message. It often is. But that does not suffice under the first factor. Nor does it distinguish AWF from a long list of would-be fair users: a musician who finds it helpful to sample another artist’s song to make his own, a playwright who finds it helpful to adapt a novel, or a filmmaker who would prefer to create a sequel or spinoff, to name just a few. As Judge Leval has explained, “[a] secondary author is not necessarily at liberty to make wholesale takings of the original author’s expression merely because of how well the original author’s expression would convey the secondary author’s different message.” Authors Guild, 804 F. 3d, at 215.
3
The dissent would rather not debate these finer points. See post, at 4, n. 2 (opinion of Kagan, J.). It offers no theory of the relationship between transformative uses of original works and derivative works that transform originals. No reason why AWF was justified in using Goldsmith’s original work in this specific instance. And no limiting principle for its apparent position that any use that is creative prevails under the first fair use factor. Instead, the dissent makes the simple (and obvious) point that restrictions on copying can inhibit follow-on works. “ ‘Nothing comes from nothing,’ ” the dissent observes, “ ‘nothing ever could.’ ” Post, at 11. So somewhere in the copyright statute, there must be an “escape valve” to create something good. Post, at 12. If AWF must pay Goldsmith to use her creation, the dissent claims, this will “stifle creativity of every sort,” “thwart the expression of new ideas and the attainment of new knowledge,” and “make our world poorer.” Post, at 36.
These claims will not age well. It will not impoverish our world to require AWF to pay Goldsmith a fraction of the proceeds from its reuse of her copyrighted work. Recall, payments like these are incentives for artists to create original works in the first place. Nor will the Court’s decision, which is consistent with longstanding principles of fair use, snuff out the light of Western civilization, returning us to the Dark Ages of a world without Titian, Shakespeare, or Richard Rodgers. The dissent goes on at length about the basic premise that copyright (like other forms of intellectual property) involves a tradeoff between stimulating innovative activity, on the one hand, and allowing follow-on innovation, on the other. See post, at 11–12, and n. 4, 24–35. This theme will be familiar to any student of copyright law. In tracing the history of Renaissance painting, however, the dissent loses sight of the statute and this Court’s cases. The Lives of the Artists undoubtedly makes for livelier reading ​than the U. S. Code or the U. S. Reports, but as a court, we do not have that luxury.
The dissent thus misses the forest for a tree. Its single-minded focus on the value of copying ignores the value of original works. It ignores the statute’s focus on the specific use alleged to be infringing. See n. 10, supra. It waves away the statute’s concern for derivative works. Supra, at 28–29, and n. 17. It fails to appreciate Campbell’s nuance. Supra, at 29–30, 34, n. 21. And it disregards this Court’s repeated emphasis on justification. Supra, at 29–30, and n. 18, 34, n. 21.
The result of these omissions is an account of fair use that is unbalanced in theory and, perhaps relatedly, in tone. The dissent’s conclusion—that whenever a use adds new meaning or message, or constitutes creative progress in the opinion of a critic or judge, the first fair use factor weighs in its favor—does not follow from its basic premise. Fair use instead strikes a balance between original works and secondary uses based in part on objective indicia of the use’s purpose and character, including whether the use is commercial and, importantly, the reasons for copying.
Finally, copyright law is replete with escape valves: the idea–expression distinction; the general rule that facts may not receive protection; the requirement of originality; the legal standard for actionable copying; the limited duration of copyright; and, yes, the defense of fair use, including all its factors, such as whether the amount taken is reasonable in relation to the purpose of the use. These doctrines (and others) provide ample space for artists and other creators to use existing materials to make valuable new works. They account for most, if not all, of the examples given by the dissent, as well as the dissent’s own copying (and the Court’s, too). If the last century of American art, literature, music, and film is any indication, the existing copyright law, of which today’s opinion is a continuation, is a powerful engine of creativity.
III
Lynn Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists. Such protection includes the right to prepare derivative works that transform the original. The use of a copyrighted work may nevertheless be fair if, among other things, the use has a purpose and character that is sufficiently distinct from the original. In this case, however, Goldsmith’s original photograph of Prince, and AWF’s copying use of that photograph in an image licensed to a special edition magazine devoted to Prince, share substantially the same purpose, and the use is of a commercial nature. AWF has offered no other persuasive justification for its unauthorized use of the photograph. Therefore, the “purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,” §107(1), weighs in Goldsmith’s favor.
The Court has cautioned that the four statutory fair use factors may not “be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright.” Campbell, 510 U. S., at 578. AWF does not challenge the Court of Appeals’ determinations that the second factor, “the nature of the copyrighted work,” §107(2); third factor, “the amount and substantiality of the portion used in relation to the copyrighted work as a whole,” §107(3); and fourth factor, “the effect of the use upon the potential market for or value of the copyrighted work,” all favor Goldsmith. See 11 F. 4th, at 45–51. Because this Court agrees with the Court of Appeals that the first factor likewise favors her, the judgment of the Court of Appeals is
Affirmed.
* ↑ A silkscreen is a fine mesh fabric used in screen printing. Warhol’s practice was to deliver a photograph to a professional silkscreen printer with instructions for alterations, such as cropping and high contrasting. 1 App. 160, 163. The latter alteration would “flatten” the image. Once Warhol approved, the printer would “reproduc[e]” the altered image “like a photographic negative onto the screen.” Id., at 164. For canvas prints, Warhol “would then place the screen face down on the canvas, pour ink onto the back of the mesh, and use a squeegee to pull the ink through the weave and onto the canvas.” Ibid. The resulting “high-contrast half-tone impressions” served as an “ ‘under-drawing,’ ” over which Warhol painted colors by hand. Id., at 165.
* ↑ AWF sold 12 of the works to collectors and galleries, and it transferred custody of the remaining four works to the Andy Warhol Museum in Pittsburgh.
* ↑ The Court of Appeals considered not only the possibility of market harm caused by the actions of AWF but also “whether ‘unrestricted and widespread conduct of the sort engaged in by [AWF] would result in a substantially adverse impact on the potential market’ ” for the photograph, including the market for derivative works. 11 F. 4th 26, 49–50 (CA2 2021) (quoting Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569, 590 (1994)); see also Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539, 568 (1985).
* ↑ Take a critical book review, for example. Not only does the review, as a whole, serve a different purpose than the book; each quoted passage within the review likely serves a different purpose (as an object of criticism) than it does in the book. That may not always be so, however, and a court must consider each use within the whole to determine whether the copying is fair. W. Patry, Fair Use §3:1, pp. 129–130 (2022).
* ↑ In theory, the question of transformative use or transformative purpose can be separated from the question whether there has been transformation of a work. In practice, however, the two may overlap. Compare, e.g., Núñez v. Caribbean Int’l News Corp., 235 F. 3d 18, 21–23 (CA1 2000) (newspaper’s reproduction, without alteration, of photograph of beauty pageant winner to explain controversy over whether her title should be withdrawn had transformative purpose because “ ‘the pictures were the story’ ”), with Leibovitz v. Paramount Pictures Corp., 137 F. 3d 109, 114–115 (CA2 1998) (film advertisement’s alteration of well-known photograph by superimposing actor’s face on actress’ body had transformative purpose of parody).
* ↑ The authors of the Copyright Act of 1976 included the language, “ ‘whether such use is of a commercial nature or is for non-profit educational purposes,’ ” in the first fair use factor “to state explicitly” that, “as under the present law, the commercial or non-profit character of an activity, while not conclusive with respect to fair use, can and should be weighed along with other factors.” H. R. Rep. No. 94–1476, p. 66 (1976).
* ↑ Return to the example of a book review. The review’s use of quoted material may be justified in both the broad and the narrower senses. First, the use is likely to serve a different purpose than the material itself. See n. 4, supra. Second, there may be compelling reason to borrow from the original to achieve that purpose because the review targets the material for comment or criticism. But again, the question of justification will depend on the individual use or uses. See Patry, Fair Use §3:1, at 129–130. Even book reviews are not entitled to a presumption of fairness. Campbell, 510 U. S., at 581.
* ↑ Consider, for example, this Court’s analysis of the first factor in Google LLC v. Oracle America, Inc., 593 U. S. ___ (2021). Google stressed that “[t]he fact that computer programs are primarily functional makes it difficult to apply traditional copyright concepts in that technological world.” Id., at ___ (slip op., at 35). Still, in evaluating the purpose and character of Google’s use of Sun Microsystems’ code, the Court looked, first, to whether the purpose of the use was significantly different from that of the original; and, second, to the strength of other justifications for the use. Although Google’s use was commercial in nature, it copied Sun’s code, which was “created for use in desktop and laptop computers,” “only insofar as needed to include tasks that would be useful in smartphone[s].” Id., at ___ (slip op., at 26). That is, Google put Sun’s code to use in the “distinct and different computing environment” of its own Android platform, a new system created for new products. Ibid. Moreover, the use was justified in that context because “shared interfaces are necessary for different programs to speak to each other” and because “reimplementation of interfaces is necessary if programmers are to be able to use their acquired skills.” Ibid.; see also id., at ___ (slip op., at 8).
* ↑ AWF sought a declaratory judgment that would cover the original Prince Series works, but Goldsmith has abandoned all claims to relief other than her claim as to the 2016 Condé Nast license and her request for prospective relief as to similar commercial licensing. Brief for Respondents 3, 17–18; Tr. of Oral Arg. 80–82.
* ↑ The dissent, however, focuses on a case that is not before the Court. No, not whether Francis Bacon would have made fair use of Velásquez’s painting, had American copyright law applied in Europe with a term of 300 years post mortem auctoris. But cf. post, at 32–34 (opinion of Kagan, J.). Rather, Congress has directed courts to examine the purpose and character of the challenged “use.” 17 U. S. C. §107(1). Yet the dissent assumes that any and all uses of an original work entail the same first-factor analysis based solely on the content of a secondary work. This assumption contradicts the fair use statute and this Court’s precedents. See supra, at 20–21. Had AWF’s use been solely for teaching purposes, that clearly would affect the analysis, and the statute permits no other conclusion. Preferring not to focus on the specific use alleged to infringe Goldsmith’s copyright, the dissent begins with a sleight of hand, see post, at 1, n. 1, and continues with a false equivalence between AWF’s commercial licensing and Warhol’s original creation. The result is a series of misstatements and exaggerations, from the dissent’s very first sentence, post, at 1 (“Today, the Court declares that Andy Warhol’s eye-popping silkscreen of Prince … is (in copyright lingo) not ‘transformative’ ”), to its very last, post, at 36 (“[The majority opinion] will make our world poorer”).
* ↑ The Court of Appeals observed that the “purpose and function of the two works at issue here is identical, not merely in the broad sense that they are created as works of visual art, but also in the narrow but essential sense that they are portraits of the same person.” 11 F. 4th, at 42 (footnote omitted). This Court goes somewhat “further and examine[s] the copying’s more specifically described ‘purpose[s]’ ” in the context of the particular use at issue (here, in a magazine about Prince). Google, 593 U. S., at ___ (slip op., at 25). The Court does not define the purpose as simply “commercial” or “commercial licensing.” Post, at 18, 20, n. 7, 25, n. 8 (Kagan, J., dissenting). Nor does the Court view Goldsmith’s photograph and Warhol’s illustration as “fungible products in the magazine market.” Post, at 18; see post, at 10. Rather, the Court finds significant the degree of similarity between the specific purposes of the original work and the secondary use at issue. According to the dissent, the fact that a magazine editor might prefer one image to the other must mean the secondary use is transformative, either because it has a different aesthetic or conveys a different message. Post, at 10. The Court, because it fails to understand the difference, does not have “much of a future in magazine publishing,” the dissent chides. Ibid. While the dissent is probably correct about the Court’s business prospects, the editors of People, Rolling Stone, and Time chose a variety of different photos of Prince for their memorial issues. See fig. 5, supra. Portrait photos, in fact. Some black and white; some depicting Prince’s “ ‘corporeality’ ”; some “realistic” or “humanistic.” Post, at 9, 16 (Kagan, J., dissenting). These variations in aesthetics did not stop the photos from serving the same essential purpose of depicting Prince in a magazine commemorating his life and career. Fortunately, the dissent’s “magazine editor” test does not have much of a future in fair use doctrine. The flaw in the dissent’s logic is simple: If all that mattered under the first factor were whether a buyer was “drawn aesthetically” to a secondary work (instead of the pre-existing work it adapted) or whether the buyer preferred “to convey the message of” the secondary work, post, at 10, then every derivative work would qualify. The New Yorker might prefer an unauthorized sequel to a short story, rather than the original, but that does not mean the purpose and character of the use would weigh in its favor. Similarly, a rap label might prefer 2 Live Crew’s song, rather than Orbison’s original, based on the new sound and lyrics (i.e., new aesthetic and message), but that was not enough in Campbell, and it is not enough here.
* ↑ In this way, the first factor relates to the fourth, market effect. See Campbell, 510 U. S., at 591; cf. also Harper & Row, 471 U. S., at 568 (“The excerpts were employed as featured episodes in a story about the Nixon pardon—precisely the use petitioners had licensed to Time”). While the first factor considers whether and to what extent an original work and secondary use have substitutable purposes, the fourth factor focuses on actual or potential market substitution. Under both factors, the analysis here might be different if Orange Prince appeared in an art magazine alongside an article about Warhol. Brief for United States as Amicus Curiae 33. While keenly grasping the relationship between The Two Lolitas, the dissent fumbles the relationship between the first and fourth fair use factors. Under today’s decision, as before, the first factor does not ask whether a secondary use causes a copyright owner economic harm. Cf. post, at 21 (opinion of Kagan, J.). There is, however, a positive association between the two factors: A secondary use that is more different in purpose and character is less likely to usurp demand for the original work or its derivatives, as the Court has explained, see Campbell, 519 U. S., at 591. This relationship should be fairly obvious. But see post, at 22 (Kagan, J., dissenting) (suggesting that the first factor can favor only the user and the fourth factor only the copyright owner). Still, the relationship is not absolute. For example, copies for classroom use might fulfill demand for an original work. The first factor may still favor the copyist, even if the fourth factor is shown not to. At the same time, other forms of straight copying may be fair if a strong showing on the fourth factor outweighs a weak showing on the first.
* ↑ The dissent misconstrues the role of commercialism in this analysis. The Court does not hold that “[a]ll that matters is that [AWF] and the publisher entered into a licensing transaction”; or that the first-factor inquiry “should disregard Warhol’s creative contributions because he licensed his work”; or that an artist may not “market even a transformative follow-on work.” Post, at 3, 19, 34 (opinion of Kagan, J.). Instead, consistent with the statute, “whether [a] use is of a commercial nature or is for nonprofit educational purposes” is one element of the first factor, §107(1); it does not dispose of that factor, much less the fair use inquiry. As this opinion makes clear, the commercial character of a secondary use should be weighed against the extent to which the use is transformative or otherwise justified. Supra, at 18 (citing Campbell, 510 U. S., at 579–580, 585); see also supra, at 12, 19–20, and n. 8, 25; infra, at 34–35.
* ↑ The dissent contends that the Court gives “little role” to “the key term ‘character.’ ” Post, at 19 (opinion of Kagan, J.). This is somewhat puzzling, as the Court has previously employed “character” to encompass exactly what the dissent downplays: “ ‘the commercial or nonprofit character of an activity.’ ” Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417, 448–449 (1984) (quoting H. R. Rep. No. 94–1476, at 66); see also Campbell, 510 U. S., at 572, 584–585 (repeatedly referring to “commercial character”). Rather than looking to this case law, the dissent looks up the word “character” in a dictionary. See post, at 13. But the dissent’s preferred definition—“a thing’s ‘main or essential nature[,] esp[ecially] as strongly marked and serving to distinguish,’ ” post, at 20 (quoting Webster’s Third New International Dictionary 376 (1976))—helps Goldsmith, not AWF. Even this definition does not support the implication that “character” is determined by any aesthetic distinctiveness, such as the addition of any new expression. Instead, it is the “main or essential nature” that must be “strongly marked and serv[e] to distinguish.” So return to Orange Prince on the cover of the Condé Nast issue commemorating Prince, see fig. 5, supra, and ask, what is the main or essential nature of the secondary use of Goldsmith’s photograph in that context?
* ↑ The situation might be different if AWF licensed Warhol’s Soup Cans to a soup business to serve as its logo. That use would share much the same purpose of Campbell’s logo, even though Soup Cans has some new meaning or message. This hypothetical, though fanciful, is parallel to the situation here: Both Goldsmith and AWF sold images of Prince (AWF’s copying Goldsmith’s) to magazines to illustrate stories about the celebrity, which is the typical use made of Goldsmith’s photographs.
* ↑ The dissent either does not follow, or chooses to ignore, this analysis. The point is not simply that the Soup Cans series comments on consumer culture, similar to how Warhol’s celebrity images comment on celebrity culture. Post, at 15 (opinion of Kagan, J.). Rather, as the discussion makes clear, the degree of difference in purpose and character between Campbell’s soup label and Warhol’s painting is nearly absolute. Plus, Warhol’s use targets Campbell’s logo, at least in part. These features (which are absent in this case) strengthen Warhol’s claim to fairness in copying that logo in a painting.
* ↑ The dissent is stumped. Buried in a conclusory footnote, it suggests that the fourth fair use factor alone takes care of derivative works like book-to-film adaptations. Post, at 12, n. 5. This idea appears to come from a Hail Mary lobbed by AWF when it got caught in the same bind. See Tr. of Oral Arg. 15–16. The Court is aware of no authority for the proposition that the first factor favors such uses (on the dissent’s view, the first factor must, because the use modifies the expressive content of an original work), leaving it to the fourth factor to ensure that §106(2) is not a dead letter. Certainly Google, which merely noted in passing that “[m]aking a film of an author’s book may … mean potential or presumed losses to the copyright owner,” did not hold as much. 593 U. S., at ___ (slip op., at 30); see id., at ___–___, ___–___ (slip op., at 24–28, 30–35).
* ↑ The dissent makes a similar mistake with Google: It fails to read the decision as a whole. So while the dissent claims that the “[Google] Court would have told this one to go back to school,” it might be easier just to go back and read Google. Post, at 2 (opinion of Kagan, J.). The Court did not hold that any secondary use that is innovative, in some sense, or that a judge or Justice considers to be creative progress consistent with the constitutional objective of copyright, is thereby transformative. The Court instead emphasized that Google used Sun’s code in a “distinct and different” context, and “only insofar as needed” or “necessary” to achieve Google’s new purpose. Google, 593 U. S., at ___ (slip op., at 26); see also n. 8, supra. In other words, the same concepts of use and justification that the Court relied on in Google are the ones that it applies today.
* ↑ The dissent demonstrates the danger of this approach. On its view, the first fair use factor favors AWF’s use of Goldsmith’s photograph simply because Warhol created worthy art. Goldsmith’s original work, by contrast, is just an “old photo,” one of Warhol’s “templates.” Post, at 2, 17 (opinion of Kagan, J.). In other words, the dissent (much like the District Court) treats the first factor as determined by a single fact: “It’s a Warhol.” This Court agrees with the Court of Appeals that such logic would create a kind of privilege that has no basis in copyright law. See 11 F. 4th, at 43. Again, the Court does not deny that Warhol was a major figure in American art. But it leaves the worth of his works to the critics. Compare, e.g., D. Antin, Warhol: The Silver Tenement, in Pop Art: A Critical History 287 (S. Madoff ed. 1997), with R. Hughes, The Shock of the New 346–351 (2d ed. 1991). Whatever the contribution of Orange Prince, Goldsmith’s photograph is part of that contribution. A court need not, indeed should not, assess the relative worth of two works to decide a claim of fair use. Otherwise, “some works of genius would be sure to miss appreciation,” and, “[a]t the other end, copyright would be denied to [works] which appealed to a public less educated than the judge.” Bleistein, 188 U. S., at 251–252 (Holmes, J.). That Goldsmith’s photograph “had [its] worth and [its] success is sufficiently shown by the desire to reproduce [it] without regard to [her] rights.” Id., at 252.
* ↑ At no point in this litigation has AWF maintained that any of the Prince Series works, let alone Orange Prince on the cover of the 2016 Condé Nast special edition, comment on, criticize, or otherwise target Goldsmith’s photograph. That makes sense, given that the photograph was unpublished when Goldsmith licensed it to Vanity Fair, and that neither Warhol nor Vanity Fair selected the photograph, which was instead provided by Goldsmith’s agency.
* ↑ The dissent wonders: Why does targeting matter? See post, at 24 (opinion of Kagan, J.). The reason, as this opinion explains, is the first factor’s attention to justification. Supra, at 17–20, and nn. 7–8, 29–30, and n. 18 (citing Campbell, 510 U. S., at 580–581; Google, 593 U. S., at ___ (slip op., at 26)). Compare, for example, a film adaptation of Gone With the Wind with a novel, The Wind Done Gone, that “inverts” the original’s “portrait of race relations” to expose its “romantic, idealized” portrayal of the antebellum South. SunTrust Bank v. Houghton Mifflin Co., 268 F. 3d 1257, 1270 (CA11 2001); id., at 1280 (Marcus, J., specially concurring). Or, to build from one of the artistic works the dissent chooses to feature, consider a secondary use that borrows from Manet’s Olympia to shed light on the original’s depiction of race and sex. See R. Storr & C. Armstrong, Lunch With Olympia (2016). Although targeting is not always required, fair use is an affirmative defense, and AWF bears the burden to justify its taking of Goldsmith’s work with some reason other than, “I can make it better.”
* ↑ The dissent oddly suggests that under the Court’s opinion, the first fair use factor favors such uses. See post, at 12, n. 5. This ignores, well, pretty much the entire opinion. See supra, at 14–17, 22–24, 26–27, 28–29, 32–33 (degree of difference in purpose and character); supra, at 18, 24 (commercial nature); supra, at 17–19, 27, 30, 34–35 (justification). In particular, the Court does not hold that the first factor favors any user who “wants to reach different buyers, in different markets, consuming different products.” Post, at 13, n. 5 (opinion of Kagan, J.). The dissent apparently deduces this proposition from its inverse, which is a common logical fallacy.
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.