`(Slip Opinion)
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` OCTOBER TERM, 2022
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`Syllabus
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`1
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` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
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` being done in connection with this case, at the time the opinion is issued.
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` The syllabus constitutes no part of the opinion of the Court but has been
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` prepared by the Reporter of Decisions for the convenience of the reader.
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` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
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`SUPREME COURT OF THE UNITED STATES
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` Syllabus
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` ANDY WARHOL FOUNDATION FOR THE VISUAL
`
` ARTS, INC. v. GOLDSMITH ET AL.
`CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
`
`THE SECOND CIRCUIT
` No. 21–869. Argued October 12, 2022—Decided May 18, 2023
`
`
`In 2016, petitioner Andy Warhol Foundation for the Visual Arts, Inc.
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`(AWF) licensed to Condé Nast for $10,000 an image of “Orange
`Prince”—an orange silkscreen portrait of the musician Prince created
`by pop artist Andy Warhol—to appear on the cover of a magazine com-
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`
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`memorating Prince. Orange Prince is one of 16 works now known as
`the Prince Series that Warhol derived from a copyrighted photograph
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`taken in 1981 by respondent Lynn Goldsmith, a professional photog-
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`rapher. Goldsmith had been commissioned by Newsweek in 1981 to
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`photograph a then “up and coming” musician named Prince Rogers
`Nelson, after which Newsweek published one of Goldsmith’s photos
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`along with an article about Prince. Years later, Goldsmith granted a
`limited license to Vanity Fair for use of one of her Prince photos as an
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`“artist reference for an illustration.” The terms of the license included
`that the use would be for “one time” only. Vanity Fair hired Warhol to
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`create the illustration, and Warhol used Goldsmith’s photo to create a
`purple silkscreen portrait of Prince, which appeared with an article
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`about Prince in Vanity Fair’s November 1984 issue. The magazine
`credited Goldsmith for the “source photograph” and paid her $400. Af-
`ter Prince died in 2016, Vanity Fair’s parent company (Condé Nast)
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`asked AWF about reusing the 1984 Vanity Fair image for a special
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`edition magazine that would commemorate Prince. When Condé Nast
`learned about the other Prince Series images, it opted instead to pur-
`chase a license from AWF to publish Orange Prince. Goldsmith did
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`not know about the Prince Series until 2016, when she saw Orange
`Prince on the cover of Condé Nast’s magazine. Goldsmith notified
`AWF of her belief that it had infringed her copyright. AWF then sued
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`Goldsmith for a declaratory judgment of noninfringement or, in the
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`2
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`ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
`
`v. GOLDSMITH
`
`Syllabus
`alternative, fair use. Goldsmith counterclaimed for infringement. The
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`District Court considered the four fair use factors in 17 U. S. C. §107
`and granted AWF summary judgment on its defense of fair use. The
`Court of Appeals reversed, finding that all four fair use factors favored
`Goldsmith. In this Court, the sole question presented is whether the
`first fair use factor, “the purpose and character of the use, including
`
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`whether such use is of a commercial nature or is for nonprofit educa-
`tional purposes,” §107(1), weighs in favor of AWF’s recent commercial
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`licensing to Condé Nast.
`Held: The “purpose and character” of AWF’s use of Goldsmith’s photo-
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`graph in commercially licensing Orange Prince to Condé Nast does not
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`favor AWF’s fair use defense to copyright infringement. Pp. 12–38.
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`(a) AWF contends that the Prince Series works are “transformative,”
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`and that the first fair use factor thus weighs in AWF’s favor, because
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`the works convey a different meaning or message than the photograph.
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`But the first fair use factor instead focuses on whether an allegedly
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`infringing use has a further purpose or different character, which is a
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`matter of degree, and the degree of difference must be weighed against
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`other considerations, like commercialism. Although new expression,
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`meaning, or message may be relevant to whether a copying use has a
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`sufficiently distinct purpose or character, it is not, without more, dis-
`positive of the first factor. Here, the specific use of Goldsmith’s photo-
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`graph alleged to infringe her copyright is AWF’s licensing of Orange
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`Prince to Condé Nast. As portraits of Prince used to depict Prince in
`magazine stories about Prince, the original photograph and AWF’s
`copying use of it share substantially the same purpose. Moreover,
`AWF’s use is of a commercial nature. Even though Orange Prince adds
`new expression to Goldsmith’s photograph, in the context of the chal-
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`lenged use, the first fair use factor still favors Goldsmith. Pp. 12–27.
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`(1) The Copyright Act encourages creativity by granting to the crea-
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`tor of an original work a bundle of rights that includes the rights to
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`reproduce the copyrighted work and to prepare derivative works. 17
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`U. S. C. §106. Copyright, however, balances the benefits of incentives
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`to create against the costs of restrictions on copying. This balancing
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`act is reflected in the common-law doctrine of fair use, codified in §107,
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`which provides: “[T]he fair use of a copyrighted work, . . . for purposes
`such as criticism, comment, news reporting, teaching . . . , scholarship,
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`or research, is not an infringement of copyright.” To determine
`whether a particular use is “fair,” the statute enumerates four factors
`to be considered. The factors “set forth general principles, the appli-
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`cation of which requires judicial balancing, depending upon relevant
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`circumstances.” Google LLC v. Oracle America, Inc., 593 U. S. ___, ___.
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`The first fair use factor, “the purpose and character of the use, in-
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`cluding whether such use is of a commercial nature or is for nonprofit
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`3
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`Cite as: 598 U. S. ____ (2023)
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`Syllabus
`educational purposes,” §107(1), considers the reasons for, and nature
`of, the copier’s use of an original work. The central question it asks is
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`whether the use “merely supersedes the objects of the original creation
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`. . . (supplanting the original), or instead adds something new, with a
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`further purpose or different character.” Campbell v. Acuff-Rose Music,
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`Inc., 510 U. S. 569, 579 (internal quotation marks and citations omit-
`ted). As most copying has some further purpose and many secondary
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`works add something new, the first factor asks “whether and to what
`extent” the use at issue has a purpose or character different from the
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`original. Ibid. (emphasis added). The larger the difference, the more
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`likely the first factor weighs in favor of fair use. A use that has a fur-
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`ther purpose or different character is said to be “transformative,” but
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`that too is a matter of degree. Ibid. To preserve the copyright owner’s
`right to prepare derivative works, defined in §101 of the Copyright Act
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`to include “any other form in which a work may be recast, transformed,
`or adapted,” the degree of transformation required to make “trans-
`formative” use of an original work must go beyond that required to
`qualify as a derivative.
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`The Court’s decision in Campbell is instructive. In holding that par-
`ody may be fair use, the Court explained that “parody has an obvious
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`claim to transformative value” because “it can provide social benefit,
`by shedding light on an earlier work, and, in the process, creating a
`new one.” 510 U. S., at 579. The use at issue was 2 Live Crew’s copy-
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`ing of Roy Orbison’s song, “Oh, Pretty Woman,” to create a rap deriva-
`tive, “Pretty Woman.” 2 Live Crew transformed Orbison’s song by add-
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`ing new lyrics and musical elements, such that “Pretty Woman” had a
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`different message and aesthetic than “Oh, Pretty Woman.” But that
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`did not end the Court’s analysis of the first fair use factor. The Court
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`found it necessary to determine whether 2 Live Crew’s transformation
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`rose to the level of parody, a distinct purpose of commenting on the
`original or criticizing it. Further distinguishing between parody and
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`satire, the Court explained that “[p]arody needs to mimic an original
`to make its point, and so has some claim to use the creation of its vic-
`tim’s (or collective victims’) imagination, whereas satire can stand on
`its own two feet and so requires justification for the very act of borrow-
`ing.” Id., at 580–581. More generally, when “commentary has no crit-
`ical bearing on the substance or style of the original composition, . . .
`the claim to fairness in borrowing from another’s work diminishes ac-
`cordingly (if it does not vanish), and other factors, like the extent of its
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`commerciality, loom larger.” Id., at 580.
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`Campbell illustrates two important points. First, the fact that a use
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`is commercial as opposed to nonprofit is an additional element of the
`first fair use factor. The commercial nature of a use is relevant, but
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`not dispositive. It is to be weighed against the degree to which the use
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`4
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`ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
`
`v. GOLDSMITH
`
`Syllabus
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`has a further purpose or different character. Second, the first factor
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`relates to the justification for the use. In a broad sense, a use that has
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`a distinct purpose is justified because it furthers the goal of copyright,
`namely, to promote the progress of science and the arts, without di-
`minishing the incentive to create. In a narrower sense, a use may be
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`justified because copying is reasonably necessary to achieve the user’s
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`new purpose. Parody, for example, “needs to mimic an original to
`make its point.” Id., at 580–581. Similarly, other commentary or crit-
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`icism that targets an original work may have compelling reason to
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`“conjure up” the original by borrowing from it. Id., at 588. An inde-
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`pendent justification like this is particularly relevant to assessing fair
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`use where an original work and copying use share the same or highly
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`similar purposes, or where wide dissemination of a secondary work
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`would otherwise run the risk of substitution for the original or licensed
`derivatives of it. See, e.g., Google, 593 U. S., at ___ (slip op., at 26).
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`In sum, if an original work and secondary use share the same or
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`highly similar purposes, and the secondary use is commercial, the first
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`fair use factor is likely to weigh against fair use, absent some other
`justification for copying. Pp. 13–20.
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`(2) The fair use provision, and the first factor in particular, re-
`quires an analysis of the specific “use” of a copyrighted work that is
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`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. Here, Goldsmith’s copyrighted photograph has been used in
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`multiple ways. The Court limits its analysis to the specific use alleged
`to be infringing in this case—AWF’s commercial licensing of Orange
`Prince to Condé Nast—and expresses no opinion as to the creation,
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`display, or sale of the original Prince Series works. In the context of
`Condé Nast’s special edition magazine commemorating Prince, the
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`purpose of the Orange Prince image is substantially the same as that
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`of Goldsmith’s original photograph. Both are portraits of Prince used
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`in magazines to illustrate stories about Prince. The use also is of a
`commercial nature. Taken together, these two elements counsel
`against fair use here. Although a use’s transformativeness may out-
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`weigh its commercial character, in this case both point in the same
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`direction. That does not mean that all of Warhol’s derivative works,
`nor all uses of them, give rise to the same fair use analysis. Pp. 20–
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`27.
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`(b) AWF contends that the purpose and character of its use of Gold-
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`smith’s photograph weighs in favor of fair use because Warhol’s silk-
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`screen image of the photograph has a different meaning or message.
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`By adding new expression to the photograph, AWF says, Warhol made
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`transformative use of it. Campbell did describe a transformative use
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`as one that “alter[s] the first [work] with new expression, meaning, or
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`5
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`Cite as: 598 U. S. ____ (2023)
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`Syllabus
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`message.” 510 U. S., at 579. But Campbell cannot be read to mean
`that §107(1) weighs in favor of any use that adds new expression,
`meaning, or message. Otherwise, “transformative use” would swallow
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`the copyright owner’s exclusive right to prepare derivative works, as
`many derivative works that “recast, transfor[m] or adap[t]” the origi-
`nal, §101, add new expression of some kind. The meaning of a second-
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`ary work, as reasonably can be perceived, should be considered to the
`extent necessary to determine whether the purpose of the use is dis-
`tinct from the original. For example, the Court in Campbell considered
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`
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`the messages of 2 Live Crew’s song to determine whether the song had
`a parodic purpose. But fair use is an objective inquiry into what a user
`does with an original work, not an inquiry into the subjective intent of
`the user, or into the meaning or impression that an art critic or judge
`draws from a work.
`
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`Even granting the District Court’s conclusion that Orange Prince
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`reasonably can be perceived to portray Prince as iconic, whereas Gold-
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`smith’s portrayal is photorealistic, that difference must be evaluated
`in the context of the specific use at issue. The purpose of AWF’s recent
`commercial licensing of Orange Prince was to illustrate a magazine
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`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 differ-
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`ently from Goldsmith’s photograph (yet has no critical bearing on her
`photograph), that degree of difference is not enough for the first factor
`to favor AWF, given the specific context and commercial nature of the
`use. To hold otherwise might authorize a range of commercial copying
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`of photographs to be used for purposes that are substantially the same
`as those of the originals.
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`AWF asserts another related purpose of Orange Prince, which is to
`comment on the “dehumanizing nature” and “effects” of celebrity. No
`doubt, many of Warhol’s works, and particularly his uses of repeated
`images, can be perceived as depicting celebrities as commodities. But
`even if such commentary is perceptible on the cover of Condé Nast’s
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`tribute to “Prince Rogers Nelson, 1958–2016,” on the occasion of the
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`man’s death, the asserted commentary is at Campbell’s lowest ebb: It
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`“has no critical bearing on” Goldsmith’s photograph, thus the commen-
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`tary’s “claim to fairness in borrowing from” her work “diminishes ac-
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`cordingly (if it does not vanish).” Campbell, 510 U. S., at 580. The
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`commercial nature of the use, on the other hand, “loom[s] larger.” Ibid.
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`Like satire that does not target an original work, AWF’s asserted com-
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`mentary “can stand on its own two feet and so requires justification for
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`the very act of borrowing.” Id., at 581. Moreover, because AWF’s copy-
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`ing of Goldsmith’s photograph was for a commercial use so similar to
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`the photograph’s typical use, a particularly compelling justification is
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`6
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`ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
`
` v. GOLDSMITH
`
` Syllabus
`needed. Copying the photograph because doing so was merely helpful
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`to convey a new meaning or message is not justification enough. Pp.
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`28–37.
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`(c) Goldsmith’s original works, like those of other photographers, are
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`entitled to copyright protection, even against famous artists. Such pro-
`tection includes the right to prepare derivative works that transform
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`the original. The use of a copyrighted work may nevertheless be fair
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`if, among other things, the use has a purpose and character that is
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`sufficiently distinct from the original. In this case, however, Gold-
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`smith’s photograph of Prince, and AWF’s copying use of the photo-
`graph in an image licensed to a special edition magazine devoted to
`Prince, share substantially the same commercial purpose. AWF has
`offered no other persuasive justification for its unauthorized use of the
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`photograph. While the Court has cautioned that the four statutory fair
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`use factors may not “be treated in isolation, one from another,” but
`instead all must be “weighed together, in light of the purposes of copy-
`right,” Campbell, 510 U. S., at 578, here AWF challenges only the
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`Court of Appeals’ determinations on the first fair use factor, and the
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`Court agrees the first factor favors Goldsmith. P. 38.
`11 F. 4th 26, affirmed.
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`SOTOMAYOR, J., delivered the opinion of the Court, in which THOMAS,
`ALITO, GORSUCH, KAVANAUGH, BARRETT, and JACKSON, JJ., joined. GOR-
`SUCH, J., filed a concurring opinion, in which JACKSON, J., joined. KAGAN,
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`J., filed a dissenting opinion, in which ROBERTS, C. J., joined.
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` Cite as: 598 U. S. ____ (2023)
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`Opinion of the Court
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`1
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` NOTICE: This opinion is subject to formal revision before publication in the
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` United States Reports. Readers are requested to notify the Reporter of
` Decisions, Supreme Court of the United States, Washington, D. C. 20543,
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` pio@supremecourt.gov, of any typographical or other formal errors.
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`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
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`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
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`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,
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`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 great-
`est 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
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`Prince photographs for use as an “artist reference.” The
`magazine wanted the photograph to help illustrate a story
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`about the musician. Goldsmith agreed, on the condition
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`2
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`ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
`v. GOLDSMITH
`
`Opinion of the Court
`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
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`photograph,” and it paid her $400. 2 id., at 323, 325–326.
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`Warhol, however, did not stop there. From Goldsmith’s
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`photograph, he derived 15 additional works. Later, the
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`Andy Warhol Foundation for the Visual Arts, Inc. (AWF)
`licensed one of those works to Condé Nast, again for the
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`
`purpose of illustrating a magazine story about Prince. AWF
`came away with $10,000. Goldsmith received nothing.
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`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 edu-
`
`cational 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
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`Second Circuit: The first factor favors Goldsmith, not AWF.
`I
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`Lynn Goldsmith is a professional photographer. Her spe-
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`cialty 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
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`The Ed Sullivan Show. S. Michel, Rock Portraits, N. Y.
`Times, Dec. 2, 2007, p. G64. Within 10 years, Goldsmith
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`had photographed everyone from Led Zeppelin to James
`Brown (the latter in concert in Kinshasa, no less). At that
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`time, Goldsmith “had few female peers.” Ibid. But she was
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`3
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`Cite as: 598 U. S. ____ (2023)
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`Opinion of the Court
`a self-starter. She quickly became “a leading rock photog-
`rapher” in an era “when women on the scene were largely
`
`dismissed as groupies.” Ibid.
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`In 1981, Goldsmith convinced Newsweek magazine to
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`hire her to photograph Prince Rogers Nelson, then an “up
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`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 pho-
`tos, 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
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`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
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`photograph to Vanity Fair to serve as an “artist reference
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`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
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`time full page and one time under one quarter page. No
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`
`other usage right granted.” Ibid. Goldsmith was to receive
`$400 and a source credit.
`
`To make the illustration, Vanity Fair hired pop artist
`Andy Warhol. Warhol was already a major figure in Amer-
`ican art, known among other things for his silkscreen por-
`traits of celebrities.1 From Goldsmith’s photograph, Warhol
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`
`
`
`
`
`
`
`
`——————
` 1A silkscreen is a fine mesh fabric used in screen printing. Warhol’s
`
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`practice was to deliver a photograph to a professional silkscreen printer
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`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
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`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
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`onto the back of the mesh, and use a squeegee to pull the ink through the
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`
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`weave and onto the canvas.” Ibid. The resulting “high-contrast half-tone
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`4
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`ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
`v. GOLDSMITH
`
`Opinion of the Court
`
`
`Figure 1. A black and white portrait photograph of Prince
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` taken in 1981 by Lynn Goldsmith.
`
`created a silkscreen portrait of Prince, which appeared
`alongside an article about Prince in the November 1984 is-
`sue of Vanity Fair. See fig. 2, infra. The article, titled “Pur-
`
`ple Fame,” is primarily about the “sexual style” of the new
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`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. War-
`
`hol received an unspecified amount.
`
`
`In addition to the single illustration authorized by the
`Vanity Fair license, Warhol created 15 other works based
`on Goldsmith’s photograph: 13 silkscreen prints and two
`——————
`impressions” served as an “ ‘under-drawing,’ ” over which Warhol painted
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`colors by hand. Id., at 165.
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` Cite as: 598 U. S. ____ (2023)
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`Opinion of the Court
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`5
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` Figure 2. A purple silkscreen portrait of Prince created in 1984
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`by Andy Warhol to illustrate an article in Vanity Fair.
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`pencil drawings. The works are collectively referred to as
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`the “Prince Series.” See Appendix, infra. Goldsmith did not
`know about the Prince Series until 2016, when she saw the
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`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.
`
`
`By that time, Warhol had died, and the Prince Series had
`passed to the Andy Warhol Foundation for the Visual Arts,
`Inc. AWF no longer possesses the works,2 but it asserts copy-
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`right in them. It has licensed images of the works for com-
`mercial and editorial uses. In particular, after Prince died
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`in 2016, Condé Nast contacted AWF about the possibility of
`reusing the 1984 Vanity Fair image for a special edition
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`magazine that would commemorate Prince. Once AWF in-
`formed Condé Nast about the other Prince Series images,
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`however, Condé Nast obtained a license to publish Orange
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`2AWF sold 12 of the works to collectors and galleries, and it trans-
`ferred custody of the remaining four works to the Andy Warhol Museum
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`in Pittsburgh.
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`6
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`ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
`v. GOLDSMITH
`
`Opinion of the Court
`
`
`Figure 3. An orange silkscreen portrait of Prince on the cover
`of a special edition magazine published in 2016 by Condé Nast.
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`Prince instead. The magazine, titled “The Genius of
`Prince,” is a tribute to “Prince Rogers Nelson, 1958–2016.”
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`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
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`the covers of People, Readers Digest, Guitar World, and
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`Musician magazines. See, e.g., fig. 4, infra.
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` Cite as: 598 U. S. ____ (2023)
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`Opinion of the Court
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`7
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` Figure 4. One of Lynn Goldsmith’s photographs of Prince
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`on the cover of Musician magazine.
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`People magazine, in fact, paid Goldsmith $1,000 to use
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`one of her copyrighted photographs in a special collector’s
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`edition, “Celebrating Prince: 1958–2016,” just after Prince
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`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
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`a copyrighted photograph in service of that object. And all
`of them (except Condé Nast) credited the photographer.
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`8
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`ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
`v. GOLDSMITH
`
`Opinion of the Court
`
`
`Figure 5. Four special edition magazines commemorating Prince
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`after he died in 2016.
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`When Goldsmith saw Orange Prince on the cover of
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`Condé Nast’s special edition magazine, she recognized her
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` 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.
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`Opinion of the Court
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`9
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`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
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`her copyright. AWF then sued Goldsmith and her agency
`for a declaratory judgment of noninfringement or, in the al-
`ternative, fair use. Goldsmith counterclaimed for infringe-
`ment.
`
`
`The District Court granted summary judgment for AWF.
`382 F. Supp. 3d 312, 316 (SDNY 2019). The court consid-
`ered the four fair use factors enumerated in 17 U. S. C. §107
`and held that the Prince Series works made fair use of Gold-
`
`smith’s photograph. As to the first factor, the works were
`“transformative” because, looking at them and the photo-
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`graph “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
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`from Goldsmith’s.” 382 F. Supp. 3d, at 325–326 (internal
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`quotation marks and alterations omitted). In particular,
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`the works “can reasonably be perceived to have transformed
`Prince from a vulnerable, uncomfortable person to an
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` 10 ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC.
`
`
` v. GOLDSMITH
`Opinion of the Court
`iconic, larger-than-life figure,” such that “each Prince Se-
`
`ries 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 be-
`
`cause 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 re-
`moved 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 pur-
`pose 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
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`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 pri-
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`mary 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 omit-
`ted). The Court of Appeals also rejected the District Court’s
`logic that “‘each Prince Series work’” is transformative be-
`cause it “‘is immediately recognizable as a “Warhol,”’”
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`11
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`Cite as: 598 U. S. ____ (2023)
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`Opinion of the Court
`which the Court of Appeals believed would “create a celeb-
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`rity-plagiarist privilege.” Id., at 43; see also ibid. (“[T]he
`fact that Martin Scorsese’s recent film The Irishman is rec-
`
`ognizably ‘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 sub-
`stantiality 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 licens-
`
`ing encroached on Goldsmith’s protected market to license
`her photograph “to publications for editorial purposes and
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`to other artists to create derivative works,” id., at 48–51.3
`The court noted that there was “no material dispute that
`both Goldsmith and AWF have sought to license (and in-
`deed 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
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`
`issue, the Court of Appeals rejected AWF’s argument that
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`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
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`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
`
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`—————