Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith, 598 U.S. ___ (2023)

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

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No. 21-869

SUPREME COURT OF THE UNITED STATES

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No. 21–869

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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.

SUPREME COURT OF THE UNITED STATES

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No. 21-869

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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 Kagan, with whom The Chief Justice joins, dissenting.

Today, the Court declares that Andy Warhols 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.17 U. S. C. §107. What matters under that factor, the majority says, is instead a marketing decision: In the majority's view, Warhol's licensing of the silkscreen to a magazine precludes fair use.[1]

You've probably heard of Andy Warhol; you've probably seen his art. You know that he reframed and 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 "flatten[ing]"-with the same "essential nature." Ante, at 8, 25, n. 14, 33 (emphasis deleted). Or more generally, to observe the majority's lack of appreciation for the way his works differ in both aesthetics and message from the original 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. U. S. Const., Art. I, §8, cl. 8. And for that same reason, the law also protects the fair use of copyrighted material. Both Congress and the courts have long recognized that an overly stringent copyright regime actually "stifle[s]" creativity by preventing artists from building on the work of others. Stewart v. Abend,495 U.S. 207, 236 (1990) (internal quotation marks omitted); see Campbell, 510 U. S., at 578-579. For, let's be honest, artists don't create all on their own; they cannot do what they do without borrowing from or otherwise making use of the work of others. That is the way artistry of all kinds-visual, musical, literary-happens (as it is the way knowledge and invention generally develop). The fair-use test's first factor responds to that truth: As understood in our precedent, it provides "breathing space" for artists to use existing materials to make fundamentally new works, for the public's enjoyment and benefit. Id., at 579. In now remaking that factor, and thus constricting fair use's boundaries, the majority hampers creative progress and undermines creative freedom. I respectfully dissent.[2]

I

A

Andy Warhol is the avatar of transformative copying. Cf. Google, 593 U. S., at ___-___ (slip op., at 24-25) (selecting Warhol, from the universe of creators, to illustrate what transformative copying is). In his early career, Warhol worked as a commercial illustrator and became experienced in varied techniques of reproduction. By night, he used those techniques-in particular, the silkscreen-to create his own art. His own-even though in one sense not. The silkscreen enabled him to make brilliantly novel art out of existing "images carefully selected from popular culture." D. De Salvo, God Is in the Details, in Andy Warhol Prints 22 (4th rev. ed. 2003). The works he produced, connecting traditions of fine art with mass culture, depended on "appropriation[s]": The use of "elements of an extant image[ ] is Warhol's entire modus operandi." B. Gopnik, Artistic Appropriation vs. Copyright Law, N. Y. Times, Apr. 6, 2021, p. C4 (internal quotation marks omitted). And with that m.o., he changed modern art; his appropriations and his originality were flipsides of each other. To a public accustomed to thinking of art as formal works "belong[ing] in 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 effect of a cinematic close-up." 1 App. 161 (expert declaration).

At that point, he produced a high-contrast, flattened image on a sheet of clear acetate. He used that image to trace an outline on the canvas. And he painted on top-applying exotic colors with "a flat, even consistency and an industrial appearance." Id., at 165. The same high-contrast image was then reproduced in negative on a silkscreen, designed 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.

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" colors suggesting "artificiality and industrial production," Warhol portrayed the actress as a "consumer product." The Metropolitan Museum of Art Guide 233 (2012); The Metropolitan Museum of Art, Marilyn (2023) (online source archived at https://www.supremecourt.gov). And in so doing, he "exposed the deficiencies" of a "mass-media culture" in which "such superficial icons loom so large." 1 App. 208, 210 (internal quotation marks omitted). Out of a publicity photo came both memorable portraiture and pointed social commentary.

As with Marilyn, similarly with Prince. In 1984, Vanity Fair commissioned Warhol to create a portrait based on a black-and-white photograph taken by noted photographer Lynn Goldsmith:

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:

It does not take an art expert to see a transformation-but in any event, all those offering testimony in this case agreed there was one. The experts explained, in far greater detail than I have, the laborious and painstaking work that Warhol put into these and other portraits. See 1 App. 160-185, 212-216, 222-224. They described, in ways I have tried to suggest, the resulting visual differences between the photo and the silkscreen. As one summarized the matter: The two works are "materially distinct" in "their composition, presentation, color palette, and media"-i.e., in pretty much all their aesthetic traits. Id., at 227.[3] And with the change in form came an undisputed change in meaning. Goldsmith's focus-seen in what one expert called the "corporeality and luminosity" of her depiction-was on Prince's "unique human identity." Id., at 176, 227. Warhol's focus was more nearly the opposite. His subject was "not the private person but the public image." Id., at 159. The artist's "flattened, cropped, exotically colored, and unnatural depiction of Prince's disembodied head" sought to "communicate a message about the impact of celebrity" in contemporary life. Id., at 227. On Warhol's canvas, Prince emerged as "spectral, dark, [and] uncanny"-less a real person than a "mask-like simulacrum." Id., at 187, 249. He was reframed as a "larger than life" "icon or totem." Id., at 257. Yet he was also reduced: He became the product of a "publicity machine" that "packages and disseminates commoditized images." Id., at 160. He manifested, in short, the dehumanizing culture of celebrity in America. The message could not have been more different.

A thought experiment may pound the point home. Suppose you were the editor of Vanity Fair or Condé Nast, publishing an article about Prince. You need, of course, some kind of picture. An employee comes to you with two options: the Goldsmith photo, the Warhol portrait. Would you say that you don't really care? That the employee is free to flip a coin? In the majority's view, you apparently would. Its opinion, as further discussed below, is built on the idea that both are just "portraits of Prince" that may equivalently be "used to depict Prince in magazine stories about Prince." Ante, at 12-13; see ante, at 22-23, and n. 11, 27, n. 15, 33, 35. All I can say is that it's a good thing the majority isn't in the magazine business. Of course you would care! You would be drawn aesthetically to one, or instead to the other. You would want to convey the message of one, or instead of the other. The point here is not that one is better and the other worse. The point is that they are fundamentally different. You would see them not as "substitute[s]," but as divergent ways to (in the majority's mantra) "illustrate a magazine about Prince with a portrait of Prince." Ante, at 15, 33; see ante, at 22-23, and n. 11, 27, n. 15, 35. Or else you (like the majority) would not have much of a future in magazine publishing.

In any event, the editors of Vanity Fair and Condé Nast understood the difference-the gulf in both aesthetics and meaning-between the Goldsmith photo and the Warhol portrait. They knew about the photo; but they wanted the portrait. They saw that as between the two works, Warhol had effected a transformation.

B

The question in this case is whether that transformation should matter in assessing whether Warhol made "fair use" of Goldsmith's copyrighted photo. The answer is yes-it should push toward (although not dictate) a finding of fair 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."17 U. S. C. §107. Those factors sometimes point in different directions; if so, a court must weigh them against each other. In doing so, we have stated, courts should view the fourth factor-which focuses on the copyright holder's economic interests-as the "most important." See Harper & Row, Publishers, Inc. v. Nation Enterprises,471 U.S. 539, 566 (1985).[5] But the overall balance cannot come out right unless each factor is assessed correctly. This case, of course, is about (and only about) the first.

And that factor is distinctive: It is the only one that focuses on what the copier's use of the original work accomplishes. The first factor asks about the "character" of that use-its "main or essential nature[,] esp[ecially] as strongly marked and serving to distinguish." Webster's Third New International Dictionary 376 (1976). And the first factor asks about the "purpose" of the use-the "object, effect, or result aimed at, intended, or attained." Id., at 1847. In that way, the first factor gives the copier a chance to make his case. See P. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1116 (1990) (describing factor 1 as "the soul of " the "fair use defense"). Look, the copier can say, at how I altered the original, and what I achieved in so doing. Look at how (as Judge Leval's seminal article put the point) the original was "used as raw material" and was "transformed in the creation of new information, new aesthetics, new insights." Id., at 1111. That is hardly the end of the fair-use inquiry (commercialism, too, may bear on the first factor, and anyway there are three factors to go), but it matters profoundly. Because when a transformation of the original work has occurred, the user of the work has made the kind of creative contribution that copyright law has as its object.

Don't take it from me (or Judge Leval): The above is exactly what this Court has held about how to apply factor 1. In Campbell, our primary case on the topic, we stated that the first factor's purpose-and-character test "central[ly]" concerns "whether and to what extent the new work is 'transformative.' " 510 U. S., at 579 (quoting Leval 1111). That makes sense, we explained, because "the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works." 510 U. S., at 579. We then expounded on when such a transformation happens. Harking back to Justice Story, we explained that a "new work" might "merely 'supersede[ ] the objects' of the original creation"-meaning, that it does no more, and for no other end, than the first work had. Ibid. (quoting Folsom v. Marsh, 9 F. Cas. 342, 348 (No. 4,901) (CC Mass. 1841)). But alternatively, the new work could "add[ ] something new, with a further purpose or different character, altering the first with new expression, meaning, or message." 510 U. S., at 579. Forgive me, but given the majority's stance (see, e.g., ante, at 33), that bears repeating: The critical factor 1 inquiry, we held, is whether a new work alters the first with "new expression, meaning, or message." The more it does so, the more transformative the new work. And (here is the final takeaway) "the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use." 510 U. S., at 579. Under that approach, the Campbell Court held, the rap group 2 Live Crew's "transformative" copying of Roy Orbison's "Pretty Woman" counted in favor 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. But drawing a distinction between a "commentary on consumerism"-which is how the majority describes his soup canvases, ante, at 27-and a commentary on celebrity culture, i.e., the turning of people into consumption items, is slicing the baloney pretty thin.) Finally, the Court conducted the first-factor inquiry it had described. Google had replicated Sun Microsystems' computer code as part of a "commercial endeavor," done "for commercial profit." 593 U. S., at ___ (slip op., at 27). No matter, said the Court. "[M]any common fair uses are indisputably commercial." Ibid. What mattered instead was that Google had used Sun's code to make "something new and important": a "highly creative and innovative" software platform. Id., at ___-___ (slip op., at 24-25). The use of the code, the Court held, was therefore "transformative" and "point[ed] toward fair use." Id., at ___, ___ (slip op., at 25, 28).

Campbell and Google also illustrate the difference it can make in the world to protect transformative works through fair use. Easy enough to say (as the majority does, see ante, 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 further discussed below), that fact is nothing near the showstopper the majority claims. Remember, the more transformative the work, the less commercialism matters. See Campbell, 510 U. S., at 579; supra, at 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 work-what he did to the Goldsmith photo, in service of what objects-counts powerfully in his favor. He started with an old photo, but he created a new new thing.[6]

II

The majority does not see it. And I mean that literally. There is precious little evidence in today's opinion that the majority has actually looked at these images, much less that it has engaged with expert views of their aesthetics and meaning. Whatever new expression Warhol added, the 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 guarantees that it will reach the wrong result.

Worse still, the majority maintains that those contributions, even if significant, just would not matter. All of Warhol's artistry and social commentary is negated by one thing: Warhol licensed his portrait to a magazine, and Goldsmith sometimes licensed her photos to magazines too. That is the sum and substance of the majority opinion. Over and over, the majority incants that "[b]oth [works] are portraits of Prince used in magazines to illustrate stories about Prince"; they therefore both "share substantially the same purpose"-meaning, a commercial one. Ante, at 22-23, 38; see ante, at 12-13, 27, n. 15, 33, 35. Or said otherwise, because Warhol entered into a licensing transaction with Condé Nast, he could not get any help from factor 1-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 commercialism-trumps-creativity analysis has only one way out. If Warhol had used Goldsmith's photo to comment on or critique Goldsmith's photo, he might have availed himself of that factor's benefit (though why anyone would be interested in that work is mysterious). See ante, at 34. But because he instead commented on society-the dehumanizing culture of celebrity-he is (go figure) out of luck.

From top-to-bottom, the analysis fails. It does not fit the copyright statute. It is not faithful to our precedent. And it does not serve the purpose both Congress and the Court have understood to lie at the core of fair use: "stimulat[ing] creativity," by enabling artists and writers of every description to build on prior works. Google, 593 U. S., at ___ (slip op., at 24). That is how art, literature, and music happen; it is also how all forms of knowledge advance. Even as the majority misconstrues the law, it misunderstands-and threatens-the creative process.

Start with what the statute tells us about whether the factor 1 inquiry should disregard Warhol's creative contributions because he licensed his work. (Sneak preview: It shouldn't.) The majority claims the text as its strong suit, viewing our precedents' inquiry into new expression and meaning as a faulty "paraphrase" of the statutory language. Ante, at 28-30. But it is the majority, not Campbell and Google, that misreads §107(1). First, the key term "character" plays little role in the majority's analysis. See ante, at 12-13, 22-23, and n. 11, 29 (statements of central test or holding referring only to "purpose"). And you can see why, given the counter-intuitive meaning the majority (every so often) provides. See ante, at 24-25, and n. 14. When referring to the "character" of what Warhol did, the majority says merely that he "licensed Orange Prince to Condé Nast for $10,000." See ante, at 24. But that reductionist view rids the term of most of its ordinary meaning. "Character" typically refers to a thing's "main or essential nature[,] esp[ecially] as strongly marked and serving to distinguish." Webster's Third 376; see supra, at 13. The essential and distinctive nature of an artist's use of a work commonly involves artistry-as it did here. See also Campbell, 510 U. S., at 582, 588-589 (discussing the expressive "character" of 2 Live Crew's rap). So the term "character" makes significant everything the record contains-and everything everyone (save the majority) knows-about the differences in expression and meaning between Goldsmith's photo and Warhol's silkscreen.

Second, the majority significantly narrows §107(1)'s reference to "purpose" (thereby paralleling its constriction of "character"). It might be obvious to you that artists have artistic purposes. And surely it was obvious to the drafters of a law aiming to promote artistic (and other kinds of ) creativity. But not to the majority, which again cares only about Warhol's decision to license his art. Warhol's purpose, the majority says, was just to "depict Prince in [a] magazine stor[y] about Prince" in exchange for money. Ante, at 12-13. The majority spurns all that mattered to the artist-evident on the face of his work-about "expression, meaning, [and] message." Campbell, 510 U. S., at 579; Google, 593 U. S., at ___ (slip op., at 24). That indifference to purposes beyond the commercial-for what an artist, most fundamentally, wants to communicate-finds no support in §107(1).[7]

Still more, the majority's commercialism-über-alles view of the factor 1 inquiry fits badly with two other parts of the fair-use provision. To begin, take the preamble, which gives examples of uses often thought fair: "criticism, comment, news reporting, teaching[,] . . . scholarship, or research." §107. As we have explained, an emphasis on commercialism would "swallow" those uses-that is, would mostly deprive them of fair-use protection. Campbell, 510 U. S., at 584. For the listed "activities are generally conducted for profit in this country." Ibid. (internal quotation marks omitted). "No man but a blockhead," Samuel Johnson once noted, "ever wrote[ ] except for money." 3 Boswell's Life of Johnson 19 (G. Hill ed. 1934). And Congress of course knew that when it drafted the preamble.

Next, skip to the last factor in the fair-use test: "the effect of the use upon the potential market for or value of the copyrighted work." §107(4). You might think that when Congress lists two different factors for consideration, it is because the two factors are, well, different. But the majority transplants factor 4 into factor 1. Recall that the majority conducts a kind of market analysis: Warhol, the majority says, licensed his portrait of Prince to a magazine that Goldsmith could have licensed her photo to-and so may have caused her economic harm. See ante, at 22-23; see also ante, at 19 (focusing on whether a follow-on work is a market "substitute" for the original); ante, at 4 (Gorsuch, J., concurring) (describing the "salient point" as whether Warhol's "use involved competition with Ms. Goldsmith's image"). That issue is no doubt important in the fair-use inquiry. But it is the stuff of factor 4: how Warhol's use affected the "value of " or "market for" Goldsmith's photo. Factor 1 focuses on the other side of the equation: the new expression, meaning, or message that may come from someone else using the original. Under the statute, courts are supposed to strike a balance between the two-and thus between rewarding original creators and enabling others to build on their works. That cannot happen when a court, à la the majority, double-counts the first goal and ignores the second.

Is it possible I overstate the matter? I would like for that to be true. And a puzzling aspect of today's opinion is that it occasionally acknowledges the balance that the fair-use provision contemplates. So, for example, the majority notes after reviewing the relevant text that "the central question [the first factor] asks" is whether the new work "adds something new" to the copyrighted one. Ante, at 15 (internal quotation marks omitted). Yes, exactly. And in other places, the majority suggests that a court should consider in the factor 1 analysis not merely the commercial context but also the copier's addition of "new expression," including new meaning or message. Ante, at 12; see ante, at 18, 24-25, n. 13, 25, 32. In that way, the majority opinion differs from Justice Gorsuch's concurrence, which would exclude all inquiry into whether a follow-on work is transformative. See ante, at 2, 4. And it is possible lower courts will pick up on that difference, and ensure that the "newness" of a follow-on work will continue to play a significant role in the factor 1 analysis. If so, I'll be happy to discover that my "claims [have] not age[d] well." Ante, at 36. But that would require courts to do what the majority does not: make a serious inquiry into the follow-on artist's creative contributions. The majority's refusal to do so is what creates the oddity at the heart of today's opinion. If "newness" matters (as the opinion sometimes says), then why does the majority dismiss all the newness Warhol added just because he licensed his portrait to Condé Nast? And why does the majority insist more generally that in a commercial context "convey[ing] a new meaning or message" is "not enough for the first factor to favor fair use"? Ante, at 35.

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 Court's opinion; what mattered instead was the "highly creative" use Google had made of the copied code. That decision is on point here. Would Warhol's work really have been more worthy of protection if it had (somehow) "she[d] light" on Goldsmith's photograph, rather than on Prince, his celebrity status, and celebrity culture? Ante, at 27. Would that Goldsmith-focused work (whatever it might be) have more meaningfully advanced creative progress, which is copyright's raison d'être, than the work he actually made? I can't see how; more like the opposite. The majority's preference for the directed work, apparently on grounds of necessity, see ante, at 27, 34-35, again reflects its undervaluing of transformative copying as a core part of artistry.

And there's the rub. (Yes, that's mostly Shakespeare.) As Congress knew, and as this Court once saw, new creations come from building on-and, in the process, transforming-those coming before. Today's decision stymies and suppresses that process, in art and every other kind of creative endeavor. The decision enhances a copyright holder's power to inhibit artistic development, by enabling her to 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]

Consider, in light of those authorial references, how the majority's factor 1 analysis might play out in literature. And why not start with the best? Shakespeare borrowed over and over and over. See, e.g., 8 Narrative and Dramatic Sources of Shakespeare 351-352 (G. Bullough ed. 1975) ("Shakespeare was an adapter of other men's tales and plays; he liked to build a new construction on something given"). I could point to a whole slew of works, but let's take Romeo and Juliet as an example. Shakespeare's version copied most directly from Arthur Brooke's The Tragical History of Romeus and Juliet, written a few decades earlier (though of course Brooke copied from someone, and that person copied from someone, and that person . . . going back at least to Ovid's story about Pyramus and Thisbe). Shakespeare took plot, characters, themes, even passages: The friar's line to Romeo, "Art thou a man? Thy form cries out thou art," appeared in Brooke as "Art thou a man? The shape saith so thou art." Bullough 387. (Shakespeare was, among other things, a good editor.) Of course Shakespeare also added loads of genius, and so made the borrowed stories "uniquely Shakespearian." G. Williams, Shakespeare's Basic Plot Situation, 2 Shakespeare Quarterly No. 4, p. 313 (Oct. 1951). But on the majority's analysis? The two works-Shakespeare's and Brooke's-are just two stories of star-crossed lovers written for commercial gain. Shakespeare would not qualify for fair use; he would not even come out ahead on factor 1.

And if you think that's just Shakespeare, here are a couple more. (Once you start looking, examples are everywhere.) Lolita, though hard to read today, is usually thought one of the greatest novels of the 20th century. But the plotline-an adult man takes a room as a lodger; embarks on an 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 copying, "no factor 1 help and surely no fair use."

Or how about music? Positively rife with copying of all kinds. Suppose some early blues artist (W. C. Handy, perhaps?) had copyrighted the 12-bar, three-chord form-the essential foundation (much as Goldsmith's photo is to Warhol's silkscreen) of many blues songs. Under the majority's view, Handy could then have controlled-meaning, curtailed-the development of the genre. And also of a fair bit of rock and roll. "Just another rendition of 12-bar blues for sale in record stores," the majority would say to Chuck Berry (Johnny B. Goode), Bill Haley (Rock Around the Clock), Jimi Hendrix (Red House), or Eric Clapton (Crossroads). Or to switch genres, imagine a pioneering classical composer (Haydn?) had copyrighted the three-section sonata form. "One more piece built on the same old structure, for use in concert halls," the majority might say to Mozart and Beethoven and countless others: "Sure, some new notes, but the backbone of your compositions is identical."

And then, there's the appropriation of those notes, and accompanying words, for use in new and different ways. Stravinsky reportedly said that great composers do not imitate, but instead steal. See P. Yates, Twentieth Century Music 41 (1967). At any rate, he would have known. He took music from all over-from Russian folk melodies to Schoenberg-and made it inimitably his own. And then-as these things go-his music became a source for others. Charlie Parker turned The Rite of Spring into something of a jazz standard: You can still hear the Stravinsky lurking, but jazz musicians make the composition a thing of a different kind. And popular music? I won't point fingers, but 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 from factor 1, let alone protection from the whole fair-use test. Ante, at 24.

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:

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:

The majority would presumably describe these Renaissance canvases as just "two portraits of reclining nudes painted to sell to patrons." Cf. ante, at 12-13, 22-23. But wouldn't that miss something-indeed, everything-about how an artist engaged with a prior work to create new expression and add new value?

And the reuse of past images was far from done. For here is Édouard Manet's Olympia, now considered a foundational work of artistic modernism, but referring in obvious ways to Titian's (and back a step, to Giorgione's) Venus:

Here again consider the account of the Rauschenberg, Lichtenstein, and Mitchell Foundations: "The revolutionary shock of the painting depends on how traditional imagery remains the painting's recognizable foundation, even as that imagery is transformed and wrenched into the present." Brief as Amici Curiae 9. It is an especially striking example of a recurrent phenomenon-of how the development of visual art works across time and place, constantly building on what came earlier. In fact, the Manet has itself spawned further transformative paintings, from Cézanne to a raft of contemporary artists across the globe. See id., at 10-11. But the majority, as to these matters, is uninterested and unconcerned.

Take a look at one last example, from a modern master very different from Warhol, but availing himself of the same appropriative traditions. On the left (below) is Velázquez's portrait of Pope Innocent X; on the right is Francis Bacon's Study After Velázquez's Portrait.

To begin with, note the word "after" in Bacon's title. Copying is so deeply rooted in the visual arts that there is a naming convention for it, with "after" denoting that a painting is some kind of "imitation of a known work." M. Clarke, The Concise Oxford Dictionary of Art Terms 5 (2d ed. 2010). Bacon made frequent use of that convention. He was especially taken by Velázquez's portrait of Innocent X, referring to it in tens of paintings. In the one shown above, Bacon retained the subject, scale, and composition of the Velázquez original. Look at one, look at the other, and you know Bacon copied. But he also transformed. He invested his portrait with new "expression, meaning, [and] message," converting Velázquez's study of magisterial power into one of mortal dread. Campbell, 510 U. S., at 579.

But the majority, from all it says, would find the change immaterial. Both paintings, after all, are "portraits of [Pope Innocent X] used to depict [Pope Innocent X]" for hanging in some interior space, ante, at 12-13; so on the majority's reasoning, someone in the market for a papal portrait could use either one, see ante, at 22-23. Velázquez's portrait, although Bacon's model, is not "the object of [his] commentary." Ante, at 27; see A. Zweite, Bacon's Scream, in Francis Bacon: The Violence of the Real 71 (A. Zweite ed. 2006) (Bacon "was not seeking to expose Velázquez's masterpiece," but instead to "adapt it" and "give it a new meaning"). And absent that "target[ing]," the majority thinks the portraits' distinct messages make no difference. Ante, at 27. Recall how the majority deems irrelevant the District Court's view that the Goldsmith Prince is vulnerable, the Warhol Prince iconic. Too small a "degree of difference," according to the majority. Ante, at 33-34; see supra, at 17. So too here, presumably: the stolid Pope, the disturbed Pope-it just doesn't matter. But that once again misses what a copier accomplished: the making of a wholly new piece of art from an existing one.

The majority thus treats creativity as a 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 borrowing-to what the borrower has made out of existing materials. That inquiry recognizes the value in using existing materials to fashion something new. And so too, this Court-from 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 artists less famous than Warhol cannot benefit from fair use, it will matter even more. Goldsmith would probably have granted Warhol a license with few conditions, and for a price well within his budget. But as our precedents show, licensors sometimes place stringent limits on follow-on uses, especially to prevent kinds of expression they disapprove. And licensors may charge fees that prevent many or most artists from gaining access to original works. Of course, that is all well and good if an artist wants merely to copy the original and market it as his own. Preventing those uses-and thus incentivizing the creation of original works-is what copyrights are for. But when the artist wants to make a transformative use, a different issue is presented. By now, the reason why should be obvious. "Inhibit[ing] subsequent writers" and artists from "improv[ing] upon prior works"-as the majority does today-will "frustrate the very ends sought to be attained" by copyright law. Harper & Row, 471 U. S., at 549. It will 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.