# Andy Warhol Foundation v. Goldsmith/Opinion of Justice Gorsuch

SUPREME COURT OF THE UNITED STATES
No. 21–869
ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS, INC., PETITIONER v. LYNN GOLDSMITH, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT [May 18, 2023]
Justice Gorsuch, with whom Justice Jackson joins, concurring.
The question before us is a narrow one of statutory 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.” 17 U. S. C. §107(1). The parties disagree which “purpose” and “character” counts.
On the Foundation’s telling, the statute requires courts to focus on the purpose the creator had in mind when producing his work and the character of his resulting work. So what matters in this case is that Andy Warhol intended to apply a “ ‘new aesthetic’ ” to Lynn Goldsmith’s photograph and the character of his work “ ‘transformed’ ” Prince from the “ ‘vulnerable, uncomfortable person’ ” depicted in Ms. Goldsmith’s photograph into “ ‘an iconic, larger-than-life figure.’ ” Ante, at 9–10; post, at 7–10, 18 (Kagan, J., dissenting). Because the purpose and character of Mr. Warhol’s work is so different from Ms. Goldsmith’s, the Foundation insists, the first statutory factor points in favor of finding a fair-use affirmative defense.
By contrast, on Ms. Goldsmith’s reading of the law and ​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.” §107(1) (emphases added). By its terms, the law trains our attention on the particular use under challenge. And it asks us to assess whether the purpose and character of that use is different from (and thus complements) or is the same as (and thus substitutes for) a copyrighted work. It’s a comparatively modest inquiry focused on how and for what reason a person is using a copyrighted work in the world, not on the moods of any artist or the aesthetic quality of any creation.
To my mind, three contextual clues confirm that this reading of the statutory text is the correct one.
First, the statutory preamble to all four fair-use factors instructs courts to assess whether the person asserting a fair-use defense seeks to “use” a copyrighted work “for purposes such as criticism, comment, news reporting, teaching ​… , scholarship, or research.” §107 (emphasis added). Once more, the statute indicates that a court must examine the purpose of the particular use under challenge, not the artistic purpose underlying a work. And once more, the statute tasks courts with asking whether the challenged use serves a different purpose (as, say, a “criticism” of or “comment” on the original) or whether it seeks to serve the same purpose (as a substitute for the original).
Second, the copyright statute expressly protects a copyright holder’s exclusive right to create “derivative works” that “transfor[m]” or “adap[t]” his original work. §§101, 106(2). So saying that a later user of a copyrighted work “transformed” its message and endowed it with a “new aesthetic” cannot automatically mean he has made fair use of it. Contra, post, at 1–2, 22–23, 34–36 (Kagan, J., dissenting). To hold otherwise would risk making a nonsense of the statutory scheme—suggesting that transformative uses of originals belong to the copyright holder (under §106) but that others may simultaneously claim those transformative uses for themselves (under §107). We aren’t normally in the business of putting a statute “at war with itself” in this way. United States v. American Tobacco Co., 221 U. S. 106, 180 (1911).
Finally, the fourth fair-use factor requires courts to assess “the effect of the use upon the potential market for or value of the copyrighted work.” §107(4). This Court has described the fourth factor as the “most important” one. Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539, 566 (1985). This Court has said, too, that no factor may “be treated in isolation, one from another.” Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569, 578 (1994). Nor does anything in the fourth factor call on courts to speculate about artistic ambitions or aesthetics. Instead, it requires courts to ask whether consumers treat a challenged use “as a market replacement” for a copyrighted work or a market complement that does not impair demand for the original. ​Id., at 591. Reading §107 as a whole, then, it supplies courts with a sequential chain of questions about the particular challenged use—starting with its purpose and character (in the first factor) and ending with its effect (in the fourth). There is no double counting here. Contra, post, at 22 (Kagan, J., dissenting). Instead, the statute proceeds from step to step, asking judges to assess whether the challenged use (as revealed by its purpose, character, amount of source material used, and effect) serves as a complement to or a substitute for a copyrighted work.
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 U. S. Const., Art. I, §8, cl. 8. Nor does this case even call on us to interpret and apply many of the reticulated elements of the Copyright Act that Congress has adopted to balance these competing interests. Our only job today is to interpret and apply faithfully one statutory factor among many Congress has deemed relevant to the affirmative defense of fair use.
That observation points the way to another. The Court today does not even decide whether the Foundation’s image of Prince infringes on Ms. Goldsmith’s copyright. To uphold a claim of infringement under the Copyright Act, a court must find the defendant copied elements of the plaintiff’s work that are themselves original. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U. S. 340, 361 (1991). As part of this process, a court must isolate and vindicate only the truly original elements of a copyrighted work. See 2 Nimmer on Copyright §8.01[D] (2022). The plaintiff must usually show not only a similarity but a “substantial” 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.