Syllabus

ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS, INC. v. GOLDSMITH ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

No. 21–869. Argued October 12, 2022—Decided May 18, 2023

In 2016, petitioner Andy Warhol Foundation for the Visual Arts, Inc. (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 commemorating Prince. Orange Prince is one of 16 works now known as the Prince Series that Warhol derived from a copyrighted photograph taken in 1981 by respondent Lynn Goldsmith, a professional photographer. Goldsmith had been commissioned by Newsweek in 1981 to photograph a then “up and coming” musician named Prince Rogers Nelson, after which Newsweek published one of Goldsmith’s photos 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 “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 create the illustration, and Warhol used Goldsmith’s photo to create a purple silkscreen portrait of Prince, which appeared with an article about Prince in Vanity Fair’s November 1984 issue. The magazine credited Goldsmith for the “source photograph” and paid her $400. After Prince died in 2016, Vanity Fair’s parent company (Condé Nast) asked AWF about reusing the 1984 Vanity Fair image for a special edition magazine that would commemorate Prince. When Condé Nast learned about the other Prince Series images, it opted instead to purchase a license from AWF to publish Orange Prince. Goldsmith did 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 Goldsmith for a declaratory judgment of noninfringement or, in the alternative, fair use. Goldsmith counterclaimed for infringement. The 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 whether such use is of a commercial nature or is for nonprofit educational purposes,” §107(1), weighs in favor of AWF’s recent commercial licensing to Condé Nast.

Held: The “purpose and character” of AWF’s use of Goldsmith’s photograph in commercially licensing Orange Prince to Condé Nast does not favor AWF’s fair use defense to copyright infringement. Pp. 12–38.

(a) AWF contends that the Prince Series works are “transformative,” and that the first fair use factor thus weighs in AWF’s favor, because the works convey a different meaning or message than the photograph. But the first fair use factor instead focuses on whether an allegedly infringing use has a further purpose or different character, which is a matter of degree, and the degree of difference must be weighed against other considerations, like commercialism. Although new expression, meaning, or message may be relevant to whether a copying use has a sufficiently distinct purpose or character, it is not, without more, dispositive of the first factor. Here, the specific use of Goldsmith’s photograph alleged to infringe her copyright is AWF’s licensing of Orange Prince to 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 challenged use, the first fair use factor still favors Goldsmith. Pp. 12–27.

(1) The Copyright Act encourages creativity by granting to the creator of an original work a bundle of rights that includes the rights to reproduce the copyrighted work and to prepare derivative works. 17 U. S. C. §106. Copyright, however, balances the benefits of incentives to create against the costs of restrictions on copying. This balancing act is reflected in the common-law doctrine of fair use, codified in §107, which provides: “[T]he fair use of a copyrighted work, . . . for purposes such as criticism, comment, news reporting, teaching . . . , scholarship, or research, is not an infringement of copyright.” To determine whether a particular use is “fair,” the statute enumerates four factors to be considered. The factors “set forth general principles, the application of which requires judicial balancing, depending upon relevant circumstances.” Google LLC v. Oracle America, Inc., 593 U. S. ___, ___.

The first fair use factor, “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,” §107(1), considers the reasons for, and nature of, the copier’s use of an original work. The central question it asks is whether the use “merely supersedes the objects of the original creation . . . (supplanting the original), or instead adds something new, with a further purpose or different character.” Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569, 579 (internal quotation marks and citations omitted). As most copying has some further purpose and many secondary 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 original. Ibid. (emphasis added). The larger the difference, the more likely the first factor weighs in favor of fair use. A use that has a further purpose or different character is said to be “transformative,” but 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 to include “any other form in which a work may be recast, transformed, or adapted,” the degree of transformation required to make “transformative” use of an original work must go beyond that required to qualify as a derivative.

The Court’s decision in Campbell is instructive. In holding that parody may be fair use, the Court explained that “parody has an obvious claim to transformative value” because “it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one.” 510 U. S., at 579. The use at issue was 2 Live Crew’s copying of Roy Orbison’s song, “Oh, Pretty Woman,” to create a rap derivative, “Pretty Woman.” 2 Live Crew transformed Orbison’s song by adding new lyrics and musical elements, such that “Pretty Woman” had a different message and aesthetic than “Oh, Pretty Woman.” But that did not end the Court’s analysis of the first fair use factor. The Court found it necessary to determine whether 2 Live Crew’s transformation rose to the level of parody, a distinct purpose of commenting on the original or criticizing it. Further distinguishing between parody and satire, the Court explained that “[p]arody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.” Id., at 580–581. More generally, when “commentary has no critical bearing on the substance or style of the original composition, . . . the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger.” Id., at 580.

Campbell illustrates two important points. First, the fact that a use is commercial as opposed to nonprofit is an additional element of the first fair use factor. The commercial nature of a use is relevant, but not dispositive. It is to be weighed against the degree to which the use has a further purpose or different character. Second, the first factor relates to the justification for the use. In a broad sense, a use that has a distinct purpose is justified because it furthers the goal of copyright, namely, to promote the progress of science and the arts, without diminishing the incentive to create. In a narrower sense, a use may be justified because copying is reasonably necessary to achieve the user’s new purpose. Parody, for example, “needs to mimic an original to make its point.” Id., at 580–581. Similarly, other commentary or criticism that targets an original work may have compelling reason to “conjure up” the original by borrowing from it. Id., at 588. An independent justification like this is particularly relevant to assessing fair use where an original work and copying use share the same or highly similar purposes, or where wide dissemination of a secondary work would otherwise run the risk of substitution for the original or licensed derivatives of it. See, e.g., Google, 593 U. S., at ___ (slip op., at 26).

In sum, if an original work and secondary use share the same or highly similar purposes, and the secondary use is commercial, the first fair use factor is likely to weigh against fair use, absent some other justification for copying. Pp. 13–20.

(2) The fair use provision, and the first factor in particular, requires an analysis of the specific “use” of a copyrighted work that is alleged to be “an infringement.” §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 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, display, or sale of the original Prince Series works. In the context of Condé Nast’s special edition magazine commemorating Prince, the purpose of the Orange Prince image is substantially the same as that of Goldsmith’s original photograph. Both are portraits of Prince used 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 outweigh its commercial character, in this case both point in the same 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– 27.

(b) AWF contends that the purpose and character of its use of Goldsmith’s photograph weighs in favor of fair use because Warhol’s silkscreen image of the photograph has a different meaning or message. By adding new expression to the photograph, AWF says, Warhol made transformative use of it. Campbell did describe a transformative use as one that “alter[s] the first [work] with new expression, meaning, or message.” 510 U. S., at 579. But Campbell cannot be read to mean that §107(1) weighs in favor of any use that adds new expression, meaning, or message. Otherwise, “transformative use” would swallow the copyright owner’s exclusive right to prepare derivative works, as many derivative works that “recast, transfor[m] or adap[t]” the original, §101, add new expression of some kind. The meaning of a secondary work, as reasonably can be perceived, should be considered to the extent necessary to determine whether the purpose of the use is distinct from the original. For example, the Court in Campbell considered 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.

Even granting the District Court’s conclusion that Orange Prince reasonably can be perceived to portray Prince as iconic, whereas Goldsmith’s portrayal is photorealistic, that difference must be evaluated in the context of the specific use at issue. The purpose of AWF’s recent commercial licensing of Orange Prince was to illustrate a magazine about Prince with a portrait of Prince. Although the purpose could be more specifically described as illustrating a magazine about Prince with a portrait of Prince, one that portrays Prince somewhat differently from Goldsmith’s photograph (yet has no critical bearing on her photograph), that degree of difference is not enough for the first factor to favor AWF, given the specific context and commercial nature of the use. To hold otherwise might authorize a range of commercial copying of photographs to be used for purposes that are substantially the same as those of the originals.

AWF asserts another related purpose of Orange Prince, which is to comment on the “dehumanizing nature” and “effects” of celebrity. No doubt, many of Warhol’s works, and particularly his uses of repeated images, can be perceived as depicting celebrities as commodities. But even if such commentary is perceptible on the cover of Condé Nast’s tribute to “Prince Rogers Nelson, 1958–2016,” on the occasion of the man’s death, the asserted commentary is at Campbell’s lowest ebb: It “has no critical bearing on” Goldsmith’s photograph, thus the commentary’s “claim to fairness in borrowing from” her work “diminishes accordingly (if it does not vanish).” Campbell, 510 U. S., at 580. The commercial nature of the use, on the other hand, “loom[s] larger.” Ibid. Like satire that does not target an original work, AWF’s asserted commentary “can stand on its own two feet and so requires justification for the very act of borrowing.” Id., at 581. Moreover, because AWF’s copying of Goldsmith’s photograph was for a commercial use so similar to the photograph’s typical use, a particularly compelling justification is needed. Copying the photograph because doing so was merely helpful to convey a new meaning or message is not justification enough. Pp. 28–37.

(c) Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists. Such protection includes the right to prepare derivative works that transform the original. The use of a copyrighted work may nevertheless be fair if, among other things, the use has a purpose and character that is sufficiently distinct from the original. In this case, however, Goldsmith’s photograph of Prince, and AWF’s copying use of the photograph in an image licensed to a special edition magazine devoted to Prince, share substantially the same commercial purpose. AWF has offered no other persuasive justification for its unauthorized use of the photograph. While the Court has cautioned that the four statutory fair      use factors may not “be treated in isolation, one from another,” but instead all must be “weighed together, in light of the purposes of copyright,” Campbell, 510 U. S., at 578, here AWF challenges only the Court of Appeals’ determinations on the first fair use factor, and the Court agrees the first factor favors Goldsmith. P. 38.

11 F. 4th 26, affirmed.

SOTOMAYOR, J., delivered the opinion of the Court, in which THOMAS, ALITO, GORSUCH, KAVANAUGH, BARRETT, and JACKSON, JJ., joined. GORSUCH, J., filed a concurring opinion, in which JACKSON, J., joined. KAGAN, J., filed a dissenting opinion, in which ROBERTS, C. J., joined.

NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors.

SUPREME COURT OF THE UNITED STATES

No. 21–869

ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS, INC., PETITIONER v. LYNN GOLDSMITH, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

[May 18, 2023]

JUSTICE SOTOMAYOR delivered the opinion of the Court.

This copyright case involves not one, but two artists. The first, Andy Warhol, is well known. His images of products like Campbell’s soup cans and of celebrities like Marilyn Monroe appear in museums around the world. Warhol’s contribution to contemporary art is undeniable.

The second, Lynn Goldsmith, is less well known. But she too was a trailblazer. Goldsmith began a career in rock-and-roll photography when there were few women in the genre. Her award-winning concert and portrait images, however, shot to the top. Goldsmith’s work appeared in Life, Time, Rolling Stone, and People magazines, not to mention the National Portrait Gallery and the Museum of Modern Art. She captured some of the 20th century’s greatest rock stars: Bob Dylan, Mick Jagger, Patti Smith, Bruce Springsteen, and, as relevant here, Prince.

In 1984, Vanity Fair sought to license one of Goldsmith’s Prince photographs for use as an “artist reference.” The magazine wanted the photograph to help illustrate a story about the musician. Goldsmith agreed, on the condition that the use of her photo be for “one time” only. 1 App. 85. The artist Vanity Fair hired was Andy Warhol. Warhol made a silkscreen using Goldsmith’s photo, and Vanity Fair published the resulting image alongside an article about Prince. The magazine credited Goldsmith for the “source photograph,” and it paid her $400. 2 id., at 323, 325–326.

Warhol, however, did not stop there. From Goldsmith’s photograph, he derived 15 additional works. Later, the Andy Warhol Foundation for the Visual Arts, Inc. (AWF) licensed one of those works to Condé Nast, again for the purpose of illustrating a magazine story about Prince. AWF came away with $10,000. Goldsmith received nothing.

When Goldsmith informed AWF that she believed its use of her photograph infringed her copyright, AWF sued her. The District Court granted summary judgment for AWF on its assertion of “fair use,” 17 U. S. C. §107, but the Court of Appeals for the Second Circuit reversed. In this Court, the sole question presented is whether the first fair use factor, “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,” §107(1), weighs in favor of AWF’s recent commercial licensing to Condé Nast. On that narrow issue, and limited to the challenged use, the Court agrees with the Second Circuit: The first factor favors Goldsmith, not AWF.

I

Lynn Goldsmith is a professional photographer. Her specialty is concert and portrait photography of musicians. At age 16, Goldsmith got one of her first shots: an image of the Beatles’ “trendy boots” before the band performed live on The Ed Sullivan Show. S. Michel, Rock Portraits, N. Y. Times, Dec. 2, 2007, p. G64. Within 10 years, Goldsmith had photographed everyone from Led Zeppelin to James Brown (the latter in concert in Kinshasa, no less). At that time, Goldsmith “had few female peers.” Ibid. But she was a self-starter. She quickly became “a leading rock photographer” in an era “when women on the scene were largely dismissed as groupies.” Ibid.

In 1981, Goldsmith convinced Newsweek magazine to hire her to photograph Prince Rogers Nelson, then an “up and coming” and “hot young musician.” 2 App. 315. Newsweek agreed, and Goldsmith took photos of Prince in concert at the Palladium in New York City and in her studio on West 36th Street. Newsweek ran one of the concert photos, together with an article titled “‘The Naughty Prince of Rock.’” Id., at 320. Goldsmith retained the other photos. She holds copyright in all of them.

One of Goldsmith’s studio photographs, a black and white portrait of Prince, is the original copyrighted work at issue in this case. See fig. 1, infra.

[Image removed]

Figure 1. A black and white portrait photograph of Prince taken in 1981 by Lynn Goldsmith.

In 1984, Goldsmith, through her agency, licensed that photograph to Vanity Fair to serve as an “artist reference for an illustration” in the magazine. 1 App. 85. The terms of the license were that the illustration was “to be published in Vanity Fair November 1984 issue. It can appear one time full page and one time under one quarter page. No other usage right granted.” Ibid. Goldsmith was to receive $400 and a source credit.

To make the illustration, Vanity Fair hired pop artist Andy Warhol. Warhol was already a major figure in American art, known among other things for his silkscreen portraits of celebrities.^[1] From Goldsmith’s photograph, Warhol created a silkscreen portrait of Prince, which appeared alongside an article about Prince in the November 1984 issue of Vanity Fair. See fig. 2, infra. The article, titled “Purple Fame,” is primarily about the “sexual style” of the new celebrity and his music. Vanity Fair, Nov. 1984, p. 66. Goldsmith received her $400 fee, and Vanity Fair credited her for the “source photograph.” 2 App. 323, 325–326. Warhol received an unspecified amount.

[Image removed]

Figure 2. A purple silkscreen portrait of Prince created in 1984 by Andy Warhol to illustrate an article in Vanity Fair.

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 pencil drawings. The works are collectively referred to as the “Prince Series.” See Appendix, infra. Goldsmith did not know about the Prince Series until 2016, when she saw the image of an orange silkscreen portrait of Prince (“Orange Prince”) on the cover of a magazine published by Vanity Fair’s parent company, Condé Nast. See fig. 3, infra.

[Image removed]

Figure 3. An orange silkscreen portrait of Prince on the cover of a special edition magazine published in 2016 by Condé Nast.

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- right in them. It has licensed images of the works for commercial and editorial uses. In particular, after Prince died in 2016, Condé Nast contacted AWF about the possibility of reusing the 1984 Vanity Fair image for a special edition magazine that would commemorate Prince. Once AWF informed Condé Nast about the other Prince Series images, however, Condé Nast obtained a license to publish Orange Prince instead. The magazine, titled “The Genius of Prince,” is a tribute to “Prince Rogers Nelson, 1958–2016.” It is “devoted to Prince.” 2 App. 352. Condé Nast paid AWF $10,000 for the license. Goldsmith received neither a fee nor a source credit.

Remember that Goldsmith, too, had licensed her Prince images to magazines such as Newsweek, to accompany a story about the musician, and Vanity Fair, to serve as an artist reference. But that was not all. Between 1981 and 2016, Goldsmith’s photos of Prince appeared on or between the covers of People, Readers Digest, Guitar World, and Musician magazines. See, e.g., fig. 4, infra.

[Image removed]

Figure 4. One of Lynn Goldsmith’s photographs of Prince on the cover of the Musician magazine.

People magazine, in fact, paid Goldsmith $1,000 to use one of her copyrighted photographs in a special collector’s edition, “Celebrating Prince: 1958–2016,” just after Prince died. People’s tribute, like Condé Nast’s, honors the life and music of Prince. Other magazines, including Rolling Stone and Time, also released special editions. See fig. 5, infra. All of them depicted Prince on the cover. All of them used a copyrighted photograph in service of that object. And all of them (except Condé Nast) credited the photographer.

[Image removed]

Figure 5. Four special edition magazines commemorating Prince after he died in 2016.

When Goldsmith saw Orange Prince on the cover of Condé Nast’s special edition magazine, she recognized her work. “It’s the photograph,” she later testified. 1 App. 290. Orange Prince crops, flattens, traces, and colors the photo but otherwise does not alter it. See fig. 6, infra.

[Image removed]

Figure 6. Warhol’s orange silkscreen portrait of Prince superimposed on Goldsmith’s portrait photograph.

Goldsmith notified AWF of her belief that it had infringed her copyright. AWF then sued Goldsmith and her agency for a declaratory judgment of noninfringement or, in the alternative, fair use. Goldsmith counterclaimed for infringement.

The District Court granted summary judgment for AWF. 382 F. Supp. 3d 312, 316 (SDNY 2019). The court considered the four fair use factors enumerated in 17 U. S. C. §107 and held that the Prince Series works made fair use of Goldsmith’s photograph. As to the first factor, the works were “transformative” because, looking at them and the photograph “side-by-side,” they “have a different character, give Goldsmith’s photograph a new expression, and employ new aesthetics with creative and communicative results distinct from Goldsmith’s.” 382 F. Supp. 3d, at 325–326 (internal quotation marks and alterations omitted). In particular, the works “can reasonably be perceived to have transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure,” such that “each Prince Series work is immediately recognizable as a ‘Warhol’ rather than as a photograph of Prince.” Id., at 326. Although the second factor, the nature of Goldsmith’s copyrighted work (creative and unpublished), “would ordinarily weigh in [her] favor . . . , this factor [was] of limited importance because the Prince Series works are transformative.” Id., at 327. The third factor, the amount and substantiality of the portion used in relation to the copyrighted work, favored AWF because, according to the District Court, “Warhol removed nearly all the photograph’s protectible elements in creating the Prince Series.” Id., at 330. Finally, the fourth factor likewise favored AWF because “the Prince Series works are not market substitutes that have harmed—or have the potential to harm—Goldsmith.” Id., at 331.

The Court of Appeals for the Second Circuit reversed and remanded. 11 F. 4th 26, 54 (2021). It held that all four fair use factors favored Goldsmith. On the first factor, “the purpose and character of the use,” §107(1), the Court of Appeals rejected the notion that “any secondary work that adds a new aesthetic or new expression to its source material is necessarily transformative.” Id., at 38–39. The question was, instead, “whether the secondary work’s use of its source material is in service of a fundamentally different and new artistic purpose and character.” Id., at 42 (internal quotation marks omitted). Such “transformative purpose and character must, at bare minimum, comprise something more than the imposition of another artist’s style on the primary work.” Ibid. Here, however, “the overarching purpose and function of the two works at issue . . . is identical, not merely in the broad sense that they are created as works of visual art, but also in the narrow but essential sense that they are portraits of the same person.” Ibid. (footnote omitted). The Court of Appeals also rejected the District Court’s logic that “‘each Prince Series work’” is transformative because it “‘is immediately recognizable as a “Warhol,”’” which the Court of Appeals believed would “create a celebrity-plagiarist privilege.” Id., at 43; see also ibid. (“[T]he fact that Martin Scorsese’s recent film The Irishman is recognizably ‘a Scorsese’ does not absolve him of the obligation to license the original book” (some internal quotation marks and alterations omitted)).

On the other three factors, the Court of Appeals found that the creative and unpublished nature of Goldsmith’s photograph favored her, id., at 45; that the amount and substantiality of the portion taken (here, “the ‘essence’” of the photograph) was not reasonable in relation to the purpose of the use, id., at 45–47; and that AWF’s commercial licensing encroached on Goldsmith’s protected market to license her photograph “to publications for editorial purposes and to other artists to create derivative works,” id., at 48–51.^[3] The court noted that there was “no material dispute that both Goldsmith and AWF have sought to license (and indeed have successfully licensed) their respective depictions of Prince to popular print magazines to accompany articles about him.” Id., at 49 (footnote omitted).

Finally, although the District Court had not reached the issue, the Court of Appeals rejected AWF’s argument that the Prince Series works were not substantially similar to Goldsmith’s photograph. See id., at 52–54.

Judge Jacobs concurred. He stressed that the Court of Appeals’ holding “d[id] not consider, let alone decide, whether the infringement here encumbers the original Prince Series works.” Id., at 54. Instead, “the only use at issue” was “the Foundation’s commercial licensing” of im ages of the Prince Series. Id., at 55.

This Court granted certiorari. 596 U. S. ___ (2022).

II

AWF does not challenge the Court of Appeals’ holding that Goldsmith’s photograph and the Prince Series works are substantially similar. The question here is whether AWF can defend against a claim of copyright infringement because it made “fair use” of Goldsmith’s photograph. 17 U. S. C. §107.

Although the Court of Appeals analyzed each fair use factor, the only question before this Court is whether the court below correctly held that the first factor, “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,” §107(1), weighs in Goldsmith’s favor. AWF contends that the Prince Series works are “transformative,” and that the first factor therefore weighs in its favor, because the works convey a different meaning or message than the photograph. Brief for Petitioner 33. The Court of Appeals erred, according to AWF, by not considering that new expression. Id., at 47–48.

But the first fair use factor instead focuses on whether an allegedly infringing use has a further purpose or different character, which is a matter of degree, and the degree of difference must be weighed against other considerations, like commercialism. Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569, 579 (1994). Although new expression may be relevant to whether a copying use has a sufficiently distinct purpose or character, it is not, without more, dispositive of the first factor.

Here, the specific use of Goldsmith’s photograph alleged to infringe her copyright is AWF’s licensing of Orange Prince to Condé Nast. As portraits of Prince used to depict Prince in magazine stories about Prince, the original photograph and AWF’s copying use of it share substantially the same purpose. Moreover, the copying use is of a commercial nature. Even though Orange Prince adds new expression to Goldsmith’s photograph, as the District Court found, this Court agrees with the Court of Appeals that, in the context of the challenged use, the first fair use factor still favors Goldsmith.

A

The Copyright Act encourages creativity by granting to the author of an original work “a bundle of exclusive rights.” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539, 546 (1985); see U. S. Const., Art. I, §8, cl. 8 (“The Congress shall have Power . . . To Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”). That bundle includes the rights to reproduce the copyrighted work, to prepare derivative works, and, in the case of pictorial or graphic works, to display the copyrighted work publicly. 17 U. S. C. §106.

The Act, however, “reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.” Twentieth Century Music Corp. v. Aiken, 422 U. S. 151, 156 (1975). Copyright thus trades off the benefits of incentives to create against the costs of restrictions on copying. The Act, for example, limits the duration of copyright, §§302–305, as required by the Constitution; makes facts and ideas uncopyrightable, §102; and limits the scope of copyright owners’ exclusive rights, §§107–122.

This balancing act between creativity and availability (including for use in new works) is reflected in one such limitation, the defense of “fair use.” In 1976, Congress codified the common-law doctrine of fair use in §107, which pro vides: “[T]he fair use of a copyrighted work, . . . for purposes such as criticism, comment, news reporting, teaching . . . , scholarship, or research, is not an infringement of copy- right.” To determine whether a particular use is “fair,” the statute sets out four factors to be considered:

 “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

 “(2) the nature of the copyrighted work;

 “(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

“(4) the effect of the use upon the potential market for or value of the copyrighted work.”

The fair use doctrine “permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Stewart v. Abend, 495 U. S. 207, 236 (1990) (internal quotation marks omitted). The Act’s fair use provision, in turn, “set[s] forth general principles, the application of which requires judicial balancing, depending upon relevant circumstances.” Google LLC v. Oracle America, Inc., 593 U. S. ___, ___ (2021) (slip op., at 14). Because those principles apply across a wide range of copyrightable material, from books to photographs to software, fair use is a “flexible” concept, and “its application may well vary depending on context.” Id., at ___ (slip op., at 15). For example, in applying the fair use provision, “copyright’s protection may be stronger where the copyrighted material . . . serves an artistic rather than a utilitarian function.” Ibid.

1

The first fair use factor is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” §107(1). This factor considers the reasons for, and nature of, the copier’s use of an original work. The “central” question it asks is “whether the new work merely ‘supersede[s] the objects’ of the original creation . . . (‘supplanting’ the original), or instead adds something new, with a further purpose or different character.” Campbell, 510 U. S., at 579 (quoting Folsom v. Marsh, 9 F. Cas. 342, 348 (No. 4,901) (CC Mass. 1841) (Story, J.), and Harper & Row, 471 U. S., at 562). In that way, the first factor relates to the problem of substitution— copyright’s bête noire. The use of an original work to achieve a purpose that is the same as, or highly similar to, that of the original work is more likely to substitute for, or “‘supplan[t],’” the work, ibid.

Consider the “purposes” listed in the preamble paragraph of §107: “criticism, comment, news reporting, teaching . . . , scholarship, or research.” Although the examples given are “‘illustrative and not limitative,’” they reflect “the sorts of             copying that courts and Congress most commonly ha[ve] found to be fair uses,” and so may guide the first factor inquiry. Campbell, 510 U. S., at 577–578 (quoting §101). As the Court of Appeals observed, the “examples are easily understood,” as they contemplate the use of an original work to “serv[e] a manifestly different purpose from the [work] itself.” 11 F. 4th, at 37. Criticism of a work, for instance, ordinarily does not supersede the objects of, or supplant, the work. Rather, it uses the work to serve a distinct end.^[4]

Not every instance will be clear cut, however. Whether a use shares the purpose or character of an original work, or instead has a further purpose or different character, is a matter of degree. Most copying has some further purpose, in the sense that copying is socially useful ex post. Many secondary works add something new. That alone does not render such uses fair. Rather, the first factor (which is just one factor in a larger analysis) asks “whether and to what extent” the use at issue has a purpose or character different from the original. Campbell, 510 U. S., at 579 (emphasis added). The larger the difference, the more likely the first factor weighs in favor of fair use. The smaller the difference, the less likely.

A use that has a further purpose or different character is said to be “‘transformative.’” Ibid. (quoting P. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1111 (1990) (hereinafter Leval)). As before, “transformativeness” is a matter of degree. See Campbell, 510 U. S., at 579. That is important because the word “transform,” though not included in §107, appears elsewhere in the Copyright Act. The statute defines derivative works, which the copyright owner has “the exclusive righ[t]” to prepare, §106(2), to include “any other form in which a work may be recast, transformed, or adapted,” §101. In other words, the owner has a right to derivative transformations of her work. Such transformations may be substantial, like the adaptation of a book into a movie. To be sure, this right is “[s]ubject to” fair use. §106; see also §107. The two are not mutually exclusive. But an overbroad concept of transformative use, one that includes any further purpose, or any different character, would narrow the copyright owner’s exclusive right to create derivative works. To preserve that right, the degree of transformation required to make “transformative” use of an original must go beyond that required to qualify as a derivative.^[5]

For example, this Court in Campbell considered whether parody may be fair use. In holding that it may, the Court explained that “parody has an obvious claim to transformative value” because “it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one.” 510 U. S., at 579. The use at issue in Campbell was 2 Live Crew’s copying of certain lyrics and musical elements from Roy Orbison’s song, “Oh, Pretty Woman,” to create a rap derivative titled “Pretty Woman.” Without a doubt, 2 Live Crew transformed Orbison’s song by adding new lyrics and musical elements, such that “Pretty Woman” had a new message and different aesthetic than “Oh, Pretty Woman.” Indeed, the whole genre of music changed from rock ballad to rap. That was not enough for the first factor to weigh in favor of fair use, however. The Court found it necessary to determine whether 2 Live Crew’s transformation of Orbison’s song rose to the level of parody, a distinct purpose of commenting on the original or criticizing it. See id., at 580–583.

Distinguishing between parody (which targets an author or work for humor or ridicule) and satire (which ridicules society but does not necessarily target an author or work), the Court further explained that “[p]arody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.” Id., at 580–581. More generally, when “commentary has no critical bearing on the substance or style of the original composition, . . . the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger.” Id., at 580; see also id., at 597 (Kennedy, J., concurring).

This discussion illustrates two important points: First, the fact that a use is commercial as opposed to nonprofit is an additional “element of the first factor.” Id., at 584. The commercial nature of the use is not dispositive. Ibid.; Google, 593 U. S., at ___ (slip op., at 27). But it is relevant. As the Court explained in Campbell, it is to be weighed against the degree to which the use has a further purpose or different character. See 510 U. S., at 579 (“[T]he more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use”); see also id., at 580, 585.^[6]

Second, the first factor also relates to the justification for the use. In a broad sense, a use that has a distinct purpose is justified because it furthers the goal of copyright, namely, to promote the progress of science and the arts, without diminishing the incentive to create. See id., at 579; Authors Guild v. Google, Inc., 804 F. 3d 202, 214 (CA2 2015) (Leval, J.) (“The more the appropriator is using the copied material for new, transformative purposes, the more it serves copyright’s goal of enriching public knowledge and the less likely it is that the appropriation will serve as a substitute for the original or its plausible derivatives, shrinking the protected market opportunities of the copyrighted work”). A use that shares the purpose of a copyrighted work, by contrast, is more likely to provide “the public with a substantial substitute for matter protected by the [copyright owner’s] interests in the original wor[k] or derivatives of [it],” id., at 207, which undermines the goal of copyright.

In a narrower sense, a use may be justified because copying is reasonably necessary to achieve the user’s new purpose. Parody, for example, “needs to mimic an original to make its point.” Campbell, 510 U. S., at 580–581. Similarly, other commentary or criticism that targets an original work may have compelling reason to “‘conjure up’” the original by borrowing from it. Id., at 588.^[7] An independent justification like this is particularly relevant to assessing fair use where an original work and copying use share the same or highly similar purposes, or where wide dissemination of a secondary work would otherwise run the risk of substitution for the original or licensed derivatives of it. See id., at 580, n. 14; Harper & Row, 471 U. S., at 557. Once again, the question of justification is one of degree. See Leval 1111 (“[I]t is not sufficient simply to conclude whether or not justification exists. The question remains how powerful, or persuasive, is the justification, because the court must weigh the strength of the secondary user’s justification against factors favoring the copyright owner”).

In sum, the first fair use factor considers whether the use of a copyrighted work has a further purpose or different character, which is a matter of degree, and the degree of difference must be balanced against the commercial nature of the use. If an original work and a secondary use share the same or highly similar purposes, and the secondary use is of a commercial nature, the first factor is likely to weigh against fair use, absent some other justification for copying.[8]

2

The fair use provision, and the first factor in particular, requires an analysis of the specific “use” of a copyrighted work that is alleged to be “an infringement.” §107. The same copying may be fair when used for one purpose but not another. See Campbell, 510 U. S., at 585 (contrasting the use of a copyrighted work “to advertise a product, even in a parody,” with “the sale of a parody for its own sake, let alone one performed a single time by students in school”); Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417, 449–451 (1984) (contrasting the recording of TV “for a commercial or profit-making purpose” with “private home use”).

Here, Goldsmith’s copyrighted photograph has been used in multiple ways: After Goldsmith licensed the photograph to Vanity Fair to serve as an artist reference, Warhol used the photograph to create the Vanity Fair illustration and the other Prince Series works. Vanity Fair then used the photograph, pursuant to the license, when it published Warhol’s illustration in 1984. Finally, AWF used the photograph when it licensed an image of Warhol’s Orange Prince to Condé Nast in 2016. Only that last use, however, AWF’s commercial licensing of Orange Prince to Condé Nast, is alleged to be infringing.[9] We limit our analysis accordingly. In particular, the Court expresses no opinion as to the creation, display, or sale of any of the original Prince Series works.[10]

A typical use of a celebrity photograph is to accompany stories about the celebrity, often in magazines. For example, Goldsmith licensed her photographs of Prince to illustrate stories about Prince in magazines such as Newsweek, Vanity Fair, and People. Supra, at 3–6. She even licensed her photographs for that purpose after Prince died in 2016. Supra, at 7. A photographer may also license her creative work to serve as a reference for an artist, like Goldsmith did in 1984 when Vanity Fair wanted an image of Prince created by Warhol to illustrate an article about Prince. As noted by the Court of Appeals, Goldsmith introduced “uncontroverted” evidence “that photographers generally license others to create stylized derivatives of their work in the vein of the Prince Series.” 11 F. 4th, at 50; see 2 App. 291–299. In fact, Warhol himself paid to license photographs for some of his artistic renditions. Such licenses, for photographs or derivatives of them, are how photographers like Goldsmith make a living. They provide an economic incentive to create original works, which is the goal of copyright.

In 2016, AWF licensed an image of Orange Prince to Condé Nast to appear on the cover of a commemorative edition magazine about Prince. The edition, titled “The Genius of Prince,” celebrates the life and work of “Prince Rogers Nelson, 1958–2016.” It is undisputed here that the edition is “devoted to Prince.” 2 App. 352. In addition to AWF’s image on the cover, the magazine contains numerous concert and studio photographs of Prince. In that context, the purpose of the image is substantially the same as that of Goldsmith’s photograph. Both are portraits of Prince used in magazines to illustrate stories about Prince.[11] Such “environment[s]” are not “distinct and different.” Google, 593 U. S., at ___ (slip op., at 26). AWF’s licensing of the Orange Prince image thus “‘supersede[d] the objects,’” Campbell, 510 U. S., at 579, i.e., shared the objectives, of Goldsmith’s photograph, even if the two were not perfect substitutes.[12] The use also “is of a commercial nature.” §107(1). Just as Goldsmith licensed her photograph to Vanity Fair for $400, AWF licensed Orange Prince to Condé Nast for $10,000. The undisputed commercial character of AWF’s use, though not dispositive, “tends to weigh against a finding of fair use.” Harper & Row, 471 U. S., at 562.^[13]

Taken together, these two elements—that Goldsmith’s photograph and AWF’s 2016 licensing of Orange Prince share substantially the same purpose, and that AWF’s use of Goldsmith’s photo was of a commercial nature—counsel against fair use, absent some other justification for copying. That is, although a use’s transformativeness may outweigh its commercial character, here, both elements point in the same direction.[14]

The foregoing does not mean, however, that derivative works borrowing heavily from an original cannot be fair uses. In Google, the Court suggested that “[a]n ‘artistic painting’ might, for example, fall within the scope of fair use even though it precisely replicates a copyrighted ‘advertising logo to make a comment about consumerism.’” 593 U. S., at ___–___ (slip op., at 24–25) (quoting 4 M. Nimmer & D. Nimmer, Copyright §13.05[A][1][b] (2019), in turn quoting N. Netanel, Making Sense of Fair Use, 15 Lewis & Clark L. Rev. 715, 746 (2011) (some internal quotation marks omitted)). That suggestion refers to Warhol’s works that incorporate advertising logos, such as the Campbell’s Soup Cans series. See fig. 7, infra.

[Image removed]

Figure 7. A print based on the Campbell’s soup can, one of Warhol’s works that replicates a copyrighted advertising logo.

Yet not all of Warhol’s works, nor all uses of them, give rise to the same fair use analysis. In fact, Soup Cans well illustrates the distinction drawn here. The purpose of Campbell’s logo is to advertise soup. Warhol’s canvases do not share that purpose. Rather, the Soup Cans series uses Campbell’s copyrighted work for an artistic commentary on consumerism, a purpose that is orthogonal to advertising soup. The use therefore does not supersede the objects of the advertising logo.[15]

Moreover, a further justification for Warhol’s use of Campbell’s logo is apparent. His Soup Cans series targets the logo. That is, the original copyrighted work is, at least in part, the object of Warhol’s commentary. It is the very nature of Campbell’s copyrighted logo—well known to the public, designed to be reproduced, and a symbol of an every- day item for mass consumption—that enables the commentary. Hence, the use of the copyrighted work not only serves a completely different purpose, to comment on consumerism rather than to advertise soup, it also “conjures up” the original work to “she[d] light” on the work itself, not just the subject of the work. Campbell, 510 U. S., at 579, 588.^[16] Here, by contrast, AWF’s use of Goldsmith’s photograph does not target the photograph, nor has AWF offered another compelling justification for the use. See infra, at 34– 35, and nn. 20–21.

B

AWF contends, however, that the purpose and character of its use of Goldsmith’s photograph weighs in favor of fair use because Warhol’s silkscreen image of the photograph, like the Campbell’s Soup Cans series, has a new meaning or message. The District Court, for example, understood the Prince Series works to portray Prince as “an iconic, larger-than-life figure.” 382 F. Supp. 3d, at 326. AWF also asserts that the works are a comment on celebrity. In particular, “Warhol’s Prince Series conveys the dehumanizing nature of celebrity.” Brief for Petitioner 44. According to AWF, that new meaning or message, which the Court of Appeals ignored, makes the use “transformative” in the fair use sense. See id., at 44–48. We disagree.

1

Campbell did describe a transformative use as one that “alter[s] the first [work] with new expression, meaning, or message.” 510 U. S., at 579; see also Google, 593 U. S., at ___ (slip op., at 24). That description paraphrased Judge Leval’s law review article, which referred to “new information, new aesthetics, new insights and understandings.” Leval 1111. (Judge Leval contrasted such additions with secondary uses that “merely repackag[e]” the original. Ibid.) But Campbell cannot be read to mean that §107(1) weighs in favor of any use that adds some new expression, meaning, or message.

Otherwise, “transformative use” would swallow the copyright owner’s exclusive right to prepare derivative works. Many derivative works, including musical arrangements, film and stage adaptions, sequels, spinoffs, and others that “recast, transfor[m] or adap[t]” the original, §101, add new expression, meaning or message, or provide new information, new aesthetics, new insights and understandings. That is an intractable problem for AWF’s interpretation of transformative use. The first fair use factor would not weigh in favor of a commercial remix of Prince’s “Purple Rain” just because the remix added new expression or had a different aesthetic. A film or musical adaptation, like that of Alice Walker’s The Color Purple, might win awards for its “significant creative contribution”; alter the meaning of a classic novel; and add “important new expression,” such as images, performances, original music, and lyrics. Post, at 11, 23 (KAGAN, J., dissenting) (internal quotation marks omitted). But that does not in itself dispense with the need for licensing.^[17]

Campbell is again instructive. 2 Live Crew’s version of Orbison’s song easily conveyed a new meaning or message. It also had a different aesthetic. Yet the Court went further, examining whether and to what extent 2 Live Crew’s song had the parodic purpose of “commenting on the original or criticizing it.” 510 U. S., at 583. Parody is, of course, a kind of message. Moreover, the Court considered what the words of the songs might have meant to determine whether parody “reasonably could be perceived.” Ibid. But new meaning or message was not sufficient. If it had been, the Court could have made quick work of the first fair use factor. Instead, meaning or message was simply relevant to whether the new use served a purpose distinct from the original, or instead superseded its objects. That was, and is, the “central” question under the first factor. Id., at 579.

The dissent commits the same interpretive error as AWF: It focuses on Campbell’s paraphrase, yet ignores the rest of that decision’s careful reasoning. Indeed, upon reading the dissent, someone might be surprised to learn that Campbell was about parody at all. Had expert testimony confirmed the obvious fact that 2 Live Crew’s “Pretty Woman” differed in aesthetics and meaning from Orbison’s original, that would have been the end of the dissent’s analysis. See post, at 14–17 (opinion of KAGAN, J.). Not the Court’s, however. Campbell was the culmination of a long line of cases and scholarship about parody’s claim to fairness in borrowing. “For purposes of copyright law,” the Court explained, “the heart of any parodist’s claim to quote from existing material is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works.” 510 U. S., at 580. Campbell thus drew a nuanced distinction between parody and satire: While parody cannot function unless it conjures up the original, “satire can stand on its own two feet and so requires justification for . . . borrowing.” Id., at 580–581. The objective meaning or message of 2 Live Crew’s song was relevant to this inquiry into the reasons for copying, but any “new expression, meaning, or message” was not the test.^[18]

What role meaning or message played in the Court of Appeals’ analysis here is not entirely clear. The court correctly rejected the idea “that any secondary work that adds a new aesthetic or new expression to its source material is necessarily transformative.” 11 F. 4th, at 38–39. It also appeared correctly to accept that meaning or message is relevant to, but not dispositive of, purpose. See id., at 41 (“[T]he secondary work itself must reasonably be perceived as embodying a distinct artistic purpose, one that conveys a new meaning or message separate from its source material”); id., at 42 (“[T]he judge must examine whether the secondary work’s use of its source material is in service of a fundamentally different and new artistic purpose and character, [which] must, at a bare minimum, comprise something more than the imposition of another artist’s style on the primary work . . . ” (internal quotation marks omitted)).

Elsewhere, however, the Court of Appeals stated that “the district judge should not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue.” Id., at 41. That statement is correct in part. A court should not attempt to evaluate the artistic significance of a particular work. See Bleistein v. Donaldson Lithographing Co., 188 U. S. 239, 251 (1903) (Holmes, J.) (“It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [a work], outside of the narrowest and most obvious limits”).^[19] Nor does the subjective intent of the user (or the subjective interpretation of a court) determine the purpose of the use. But the meaning of a secondary work, as reasonably can be perceived, should be considered to the extent necessary to determine whether the purpose of the use is distinct from the original, for instance, because the use comments on, criticizes, or provides otherwise unavailable information about the original, see, e.g., Authors Guild, 804 F. 3d, at 215–216.

2

The District Court determined that “[t]he Prince Series works can reasonably be perceived to have transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure.” 382 F. Supp. 3d, at 326. To make that determination, the District Court relied, in part, on testimony by Goldsmith that her photographs of Prince show that he “is ‘not a comfortable person’ and that he is ‘a vulnerable human being.’” Ibid. An expert on Warhol, meanwhile, testified that the Prince Series works depict “Prince as a kind of icon or totem of something,” a “masklike simulacrum of his actual existence.” 1 App. 249, 257.

The Court of Appeals noted, correctly, that “whether a work is transformative cannot turn merely on the stated or perceived intent of the artist or the meaning or impression that a critic—or for that matter, a judge—draws from the work.” 11 F. 4th, at 41. “[O]therwise, the law may well ‘recogniz[e] any alteration as transformative.’” Ibid. (quoting 4 Nimmer, Copyright §13.05[B][6]). Whether the purpose and character of a use weighs in favor of fair use is, instead, an objective inquiry into what use was made, i.e., what the user does with the original work.

Granting the District Court’s conclusion that Orange Prince reasonably can be perceived to portray Prince as iconic, whereas Goldsmith’s portrayal is photorealistic, that difference must be evaluated in the context of the specific use at issue. The use is AWF’s commercial licensing of Orange Prince to appear on the cover of Condé Nast’s special commemorative edition. The purpose of that use is, still, to illustrate a magazine about Prince with a portrait of Prince. Although the purpose could be more specifically described as illustrating a magazine about Prince with a portrait of Prince, one that portrays Prince somewhat differently from Goldsmith’s photograph (yet has no critical bearing on her photograph), that degree of difference is not enough for the first factor to favor AWF, given the specific context of the use.

To hold otherwise would potentially authorize a range of commercial copying of photographs, to be used for purposes that are substantially the same as those of the originals. As long as the user somehow portrays the subject of the photograph differently, he could make modest alterations to the original, sell it to an outlet to accompany a story about the subject, and claim transformative use. Many photographs will be open to various interpretations. A subject as open to interpretation as the human face, for example, reasonably can be perceived as conveying several possible meanings. The application of an artist’s characteristic style to bring out a particular meaning that was available in the photograph is less likely to constitute a “further purpose” as Campbell used the term. 510 U. S., at 579.

AWF asserts another, albeit related, purpose, which is to comment on the “dehumanizing nature” and “effects” of celebrity. Brief for Petitioner 44, 51. No doubt, many of Warhol’s works, and particularly his uses of repeated images, can be perceived as depicting celebrities as commodities. But again, even if such commentary is perceptible on the cover of Condé Nast’s tribute to “Prince Rogers Nelson, 1958–2016,” on the occasion of the man’s death, AWF has a problem: The asserted commentary is at Campbell’s lowest ebb. Because it “has no critical bearing on” Goldsmith’s photograph,[20] the commentary’s “claim to fairness in borrowing from” her work “diminishes accordingly (if it does not vanish).” 510 U. S., at 580.[21] The commercial nature of the use, on the other hand, “loom[s] larger.” Ibid.

Here, the circumstances of AWF’s 2016 licensing outweigh its diminished claim to fairness in copying under the first factor. Like satire that does not target an original work, AWF’s asserted commentary “can stand on its own two feet and so requires justification for the very act of borrowing.” Id., at 581. Moreover, because AWF’s commercial use of Goldsmith’s photograph to illustrate a magazine about Prince is so similar to the photograph’s typical use, a particularly compelling justification is needed. Yet AWF offers no independent justification, let alone a compelling one, for copying the photograph, other than to convey a new meaning or message. As explained, that alone is not enough for the first factor to favor fair use.

Copying might have been helpful to convey a new meaning or message. It often is. But that does not suffice under the first factor. Nor does it distinguish AWF from a long list of would-be fair users: a musician who finds it helpful to sample another artist’s song to make his own, a playwright who finds it helpful to adapt a novel, or a filmmaker who would prefer to create a sequel or spinoff, to name just a few.^[22] As Judge Leval has explained, “[a] secondary author is not necessarily at liberty to make wholesale takings of the original author’s expression merely because of how well the original author’s expression would convey the secondary author’s different message.” Authors Guild, 804 F. 3d, at 215.

3

The dissent would rather not debate these finer points. See post, at 4, n. 2 (opinion of KAGAN, J.). It offers no theory of the relationship between transformative uses of original works and derivative works that transform originals. No reason why AWF was justified in using Goldsmith’s original work in this specific instance. And no limiting principle for its apparent position that any use that is creative prevails under the first fair use factor. Instead, the dissent makes the simple (and obvious) point that restrictions on copying can inhibit follow-on works. “‘Nothing comes from noth ing,’” the dissent observes, “‘nothing ever could.’”  Post, at 11. So somewhere in the copyright statute, there must be an “escape valve” to create something good. Post, at 12. If AWF must pay Goldsmith to use her creation, the dissent claims, this will “stifle creativity of every sort,” “thwart the expression of new ideas and the attainment of new knowledge,” and “make our world poorer.” Post, at 36.

These claims will not age well. It will not impoverish our world to require AWF to pay Goldsmith a fraction of the proceeds from its reuse of her copyrighted work. Recall, payments like these are incentives for artists to create original works in the first place. Nor will the Court’s decision, which is consistent with longstanding principles of fair use, snuff out the light of Western civilization, returning us to the Dark Ages of a world without Titian, Shakespeare, or Richard Rodgers. The dissent goes on at length about the basic premise that copyright (like other forms of intellectual property) involves a tradeoff between stimulating innovative activity, on the one hand, and allowing follow-on innovation, on the other. See post, at 11–12, and n. 4, 24–35. This theme will be familiar to any student of copyright law. In tracing the history of Renaissance painting, however, the dissent loses sight of the statute and this Court’s cases. The Lives of the Artists undoubtedly makes for livelier reading than the U. S. Code or the U. S. Reports, but as a court, we do not have that luxury.

The dissent thus misses the forest for a tree. Its singleminded focus on the value of copying ignores the value of original works. It ignores the statute’s focus on the specific use alleged to be infringing. See n. 10, supra. It waves away the statute’s concern for derivative works. Supra, at 28–29, and n. 17. It fails to appreciate Campbell’s nuance. Supra, at 29–30, 34, n. 21. And it disregards this Court’s repeated emphasis on justification. Supra, at 29–30, and n. 18, 34, n. 21.

The result of these omissions is an account of fair use that is unbalanced in theory and, perhaps relatedly, in tone. The dissent’s conclusion—that whenever a use adds new meaning or message, or constitutes creative progress in the opinion of a critic or judge, the first fair use factor weighs in its favor—does not follow from its basic premise. Fair use instead strikes a balance between original works and secondary uses based in part on objective indicia of the use’s purpose and character, including whether the use is commercial and, importantly, the reasons for copying.

Finally, copyright law is replete with escape valves: the idea–expression distinction; the general rule that facts may not receive protection; the requirement of originality; the legal standard for actionable copying; the limited duration of copyright; and, yes, the defense of fair use, including all its factors, such as whether the amount taken is reasonable in relation to the purpose of the use. These doctrines (and others) provide ample space for artists and other creators to use existing materials to make valuable new works. They account for most, if not all, of the examples given by the dissent, as well as the dissent’s own copying (and the Court’s, too). If the last century of American art, literature, music, and film is any indication, the existing copyright law, of which today’s opinion is a continuation, is a powerful engine of creativity.

III

Lynn Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists. Such protection includes the right to prepare derivative works that transform the original. The use of a copyrighted work may nevertheless be fair if, among other things, the use has a purpose and character that is sufficiently distinct from the original. In this case, however, Goldsmith’s original photograph of Prince, and AWF’s copying use of that photograph in an image licensed to a special edition magazine devoted to Prince, share substantially the same purpose, and the use is of a commercial nature. AWF has offered no other persuasive justification for its unauthorized use of the photograph. Therefore, the “purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,” §107(1), weighs in Goldsmith’s favor.

The Court has cautioned that the four statutory fair use factors may not “be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright.” Campbell, 510 U. S., at 578. AWF does not challenge the Court of Appeals’ determinations that the second factor, “the nature of the copyrighted work,” §107(2); third factor, “the amount and substantiality of the portion used in relation to the copyrighted work as a whole,” §107(3); and fourth factor, “the effect of the use upon the potential market for or value of the copyrighted work,” all favor Goldsmith. See 11 F. 4th, at 45–51. Because this Court agrees with the Court of Appeals that the first factor likewise favors her, the judgment of the Court of Appeals is

Affirmed. Appendix to opinion of the Court Opinion of the Court

APPENDIX

[Image removed]

Andy Warhol created 16 works based on Lynn Goldsmith’s photograph: 14 silkscreen prints and two pencil drawings. The works are collectively known as the Prince Series.

SUPREME COURT OF THE UNITED STATES

No. 21–869

ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS, INC., PETITIONER v. LYNN GOLDSMITH, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

[May 18, 2023]

JUSTICE GORSUCH, with whom JUSTICE JACKSON joins, concurring.

The question before us is a narrow one of statutory interpretation. It concerns the meaning of one of four factors Congress has instructed courts to consult when a party invokes the affirmative defense of “fair use” to a claim of copyright infringement. The statutory factor in question requires courts to consider “the purpose and character of the use.” 17 U. S. C. §107(1). The parties disagree which “purpose” and “character” counts.

On the Foundation’s telling, the statute requires courts to focus on the purpose the creator had in mind when producing his work and the character of his resulting work. So what matters in this case is that Andy Warhol intended to apply a “‘new aesthetic’” to Lynn Goldsmith’s photograph       and the character of his work “‘transformed’” Prince from the “‘vulnerable, uncomfortable person’” depicted in Ms.             Goldsmith’s photograph into “‘an iconic, larger-than-life figure.’” Ante, at 9–10; post, at 7–10, 18 (KAGAN, J., dis senting). 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 fac    tor 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., dis senting). 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 de fendant’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

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 KAGAN, with whom THE CHIEF JUSTICE joins, dissenting.

Today, the Court declares that Andy Warhol’s eye-popping silkscreen of Prince—a work based on but dramatically altering an existing photograph—is (in copyright lingo) not “transformative.” Still more, the Court decides that even if Warhol’s portrait were transformative—even if its expression and meaning were worlds away from the photo—that fact would not matter. For in the majority’s view, copyright law’s first fair-use factor—addressing “the purpose and character” of “the use made of a work”—is uninterested in the distinctiveness and newness of Warhol’s portrait. 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.^[23]

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[] some thing 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.^[24]

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).

[Image removed]

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.

[Image removed]

Andy Warhol, Marilyn, 1964, acrylic and silkscreen ink on linen

And the meaning is different from any the photo had. Of course, meaning in great art is contestable and contested (as is the premise that an artwork is great). But note what some experts say about the complex message(s) Warhol’s Marilyns convey. On one level, those vivid, larger-than-life paintings are celebrity iconography, making a “secular, profane subject[]” “transcendent” and “eternal.” Id., at 209 (internal quotation marks omitted). But they also function as a biting critique of the cult of celebrity, and the role it plays in American life. With misaligned, “Day-Glo” 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:

[Image removed]

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:

[Image removed]

Andy Warhol, Prince, 1984, synthetic paint and silkscreen ink on canvas

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.^[25] 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.^[26] 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).^[27] 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 fairuse 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.^[28]

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., sepiatinting). “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 other wise, 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).^[29]

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 valua ble 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 dif ferent. Or viewed the other way round, the decision im pedes 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.^[30]

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).^[31] 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.[32] 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:

[Image removed]

Giorgione, Sleeping Venus, c. 1510, oil on canvas

But things were destined not to end there. One of Giorgione’s pupils was Titian, and the former student undertook to riff on his master. The resulting Venus of Urbino is a prototypical example of Renaissance imitatio—the creation of an original work from an existing model. See id., at 8; 1 G. Vasari, Lives of the Artists 31, 444 (G. Bull transl. 1965). You can see the resemblance—but also the difference:

[Image removed]

Titian, Venus of Urbino, 1538, oil on canvas

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:

[Image removed]

Manet, Olympia, 1863, oil on canvas

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.

[Image removed]

Velázquez, Pope Innocent X, c. 1650, oil on canvas

Francis Bacon, Study After Velázquez’s Portrait of Pope Innocent X, 1953, oil on canvas

To begin with, note the word “after” in Bacon’s title. Copying is so deeply rooted in the visual arts that there is a naming convention for it, with “after” denoting that a painting is some kind of “imitation of a known work.” M. Clarke, The Concise Oxford Dictionary of Art Terms 5 (2d ed. 2010). Bacon made frequent use of that convention. He was especially taken by 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.

[1] A silkscreen is a fine mesh fabric used in screen printing. Warhol’s practice was to deliver a photograph to a professional silkscreen printer with instructions for alterations, such as cropping and high contrasting. 1 App. 160, 163. The latter alteration would “flatten” the image. Once Warhol approved, the printer would “reproduc[e]” the altered image “like a photographic negative onto the screen.” Id., at 164. For canvas prints, Warhol “would then place the screen face down on the canvas, pour ink onto the back of the mesh, and use a squeegee to pull the ink through the weave and onto the canvas.” Ibid. The resulting “high-contrast half-tone impressions” served as an “ ‘under-drawing,’ ” over which Warhol painted colors by hand. Id., at 165.

[2] AWF sold 12 of the works to collectors and galleries, and it transferred custody of the remaining four works to the Andy Warhol Museum in Pittsburgh.

[3] The Court of Appeals considered not only the possibility of market harm caused by the actions of AWF but also “whether ‘unrestricted and widespread conduct of the sort engaged in by [AWF] would result in a substantially adverse impact on the potential market’ ” for the photo graph, including the market for derivative works. 11 F. 4th 26, 49–50 (CA2 2021) (quoting Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569, 590 (1994)); see also Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539, 568 (1985).

[4] Take a critical book review, for example. Not only does the review, as a whole, serve a different purpose than the book; each quoted passage within the review likely serves a different purpose (as an object of criticism) than it does in the book. That may not always be so, however, and a court must consider each use within the whole to determine whether the copying is fair. W. Patry, Fair Use §3:1, pp. 129–130 (2022).

[5] In theory, the question of transformative use or transformative purpose can be separated from the question whether there has been transformation of a work. In practice, however, the two may overlap. Compare, e.g., Núñez v. Caribbean Int’l News Corp., 235 F. 3d 18, 21–23 (CA1 2000) (newspaper’s reproduction, without alteration, of photograph of beauty pageant winner to explain controversy over whether her title should be withdrawn had transformative purpose because “ ‘the pictures were the story’ ”), with Leibovitz v. Paramount Pictures Corp., 137 F. 3d 109, 114–115 (CA2 1998) (film advertisement’s alteration of well-known photograph by superimposing actor’s face on actress’ body had transformative purpose of parody).

[6] The authors of the Copyright Act of 1976 included the language, “ ‘whether such use is of a commercial nature or is for non-profit educa             tional purposes,’ ” in the first fair use factor “to state explicitly” that, “as           under the present law, the commercial or non-profit character of an activity, while not conclusive with respect to fair use, can and should be weighed along with other factors.” H. R. Rep. No. 94–1476, p. 66 (1976).

[7] Return to the example of a book review. The review’s use of quoted material may be justified in both the broad and the narrower senses. First, the use is likely to serve a different purpose than the material itself. See n. 4, supra. Second, there may be compelling reason to borrow from the original to achieve that purpose because the review targets the material for comment or criticism. But again, the question of justification will depend on the individual use or uses. See Patry, Fair Use §3:1, at 129–130. Even book reviews are not entitled to a presumption of fairness. Campbell, 510 U. S., at 581.

[8] Consider, for example, this Court’s analysis of the first factor in Google LLC v. Oracle America, Inc., 593 U. S. ___ (2021). Google stressed that “[t]he fact that computer programs are primarily functional makes it difficult to apply traditional copyright concepts in that technological world.” Id., at ___ (slip op., at 35). Still, in evaluating the purpose and character of Google’s use of Sun Microsystems’ code, the Court looked, first, to whether the purpose of the use was significantly different from that of the original; and, second, to the strength of other justifications for the use. Although Google’s use was commercial in nature, it copied Sun’s code, which was “created for use in desktop and laptop computers,” “only insofar as needed to include tasks that would be useful in smartphone[s].” Id., at ___ (slip op., at 26). That is, Google put Sun’s code to use in the “distinct and different computing environment” of its own Android platform, a new system created for new products. Ibid. Moreover, the use was justified in that context because “shared interfaces are necessary for different programs to speak to each other” and because “reimplementation of interfaces is necessary if programmers are to be able to use their acquired skills.” Ibid.; see also id., at ___ (slip op., at 8).

[9] AWF sought a declaratory judgment that would cover the original Prince Series works, but Goldsmith has abandoned all claims to relief other than her claim as to the 2016 Condé Nast license and her request for prospective relief as to similar commercial licensing. Brief for Respondents 3, 17–18; Tr. of Oral Arg. 80–82.

[10] The dissent, however, focuses on a case that is not before the Court. No, not whether Francis Bacon would have made fair use of Velásquez’s painting, had American copyright law applied in Europe with a term of 300 years post mortem auctoris. But cf. post, at 32–34 (opinion of KAGAN, J.). Rather, Congress has directed courts to examine the purpose and character of the challenged “use.” 17 U. S. C. §107(1). Yet the dissent assumes that any and all uses of an original work entail the same first factor analysis based solely on the content of a secondary work. This assumption contradicts the fair use statute and this Court’s precedents. See supra, at 20–21. Had AWF’s use been solely for teaching purposes, that clearly would affect the analysis, and the statute permits no other conclusion. Preferring not to focus on the specific use alleged to infringe Goldsmith’s copyright, the dissent begins with a sleight of hand, see post, at 1, n. 1, and continues with a false equivalence between AWF’s commercial licensing and Warhol’s original creation. The result is a series of misstatements and exaggerations, from the dissent’s very first sentence, post, at 1 (“Today, the Court declares that Andy Warhol’s eye-popping silkscreen of Prince . . . is (in copyright lingo) not ‘transformative’”), to its very last, post, at 36 (“[The majority opinion] will make our world poorer”).

[11] The Court of Appeals observed that the “purpose and function of the two works at issue here is identical, not merely in the broad sense that they are created as works of visual art, but also in the narrow but essential sense that they are portraits of the same person.” 11 F. 4th, at 42 (footnote omitted). This Court goes somewhat “further and examine[s] the copying’s more specifically described ‘purpose[s]’ ” in the context of the particular use at issue (here, in a magazine about Prince). Google, 593 U. S., at ___ (slip op., at 25). The Court does not define the purpose as simply “commercial” or “commercial licensing.” Post, at 18, 20, n. 7, 25, n. 8 (KAGAN, J., dissenting). Nor does the Court view Goldsmith’s photograph and Warhol’s illustration as “fungible products in the magazine market.” Post, at 18; see post, at 10. Rather, the Court finds significant the degree of similarity between the specific purposes of the original work and the secondary use at issue.

According to the dissent, the fact that a magazine editor might prefer one image to the other must mean the secondary use is transformative, either because it has a different aesthetic or conveys a different message. Post, at 10. The Court, because it fails to understand the difference, does not have “much of a future in magazine publishing,” the dissent chides. Ibid. While the dissent is probably correct about the Court’s business prospects, the editors of People, Rolling Stone, and Time chose a variety of different photos of Prince for their memorial issues. See fig. 5, supra. Portrait photos, in fact. Some black and white; some depicting Prince’s “ ‘corporeality’ ”; some “realistic” or “humanistic.” Post, at 9, 16 (KAGAN, J., dissenting). These variations in aesthetics did not stop the photos from serving the same essential purpose of depicting Prince in a magazine commemorating his life and career.

Fortunately, the dissent’s “magazine editor” test does not have much of a future in fair use doctrine. The flaw in the dissent’s logic is simple: If all that mattered under the first factor were whether a buyer was “drawn aesthetically” to a secondary work (instead of the pre-existing work it adapted) or whether the buyer preferred “to convey the message of ” the secondary work, post, at 10, then every derivative work would qualify. The New Yorker might prefer an unauthorized sequel to a short story, rather than the original, but that does not mean the purpose and character of the use would weigh in its favor. Similarly, a rap label might prefer 2 Live Crew’s song, rather than Orbison’s original, based on the new sound and lyrics (i.e., new aesthetic and message), but that was not enough in Campbell, and it is not enough here.

[12] In this way, the first factor relates to the fourth, market effect. See Campbell, 510 U. S., at 591; cf. also Harper & Row, 471 U. S., at 568 (“The excerpts were employed as featured episodes in a story about the Nixon pardon—precisely the use petitioners had licensed to Time”). While the first factor considers whether and to what extent an original work and secondary use have substitutable purposes, the fourth factor focuses on actual or potential market substitution. Under both factors, the analysis here might be different if Orange Prince appeared in an art magazine alongside an article about Warhol. Brief for United States as Amicus Curiae 33.

While keenly grasping the relationship between The Two Lolitas, the dissent fumbles the relationship between the first and fourth fair use factors. Under today’s decision, as before, the first factor does not ask whether a secondary use causes a copyright owner economic harm. Cf. post, at 21 (opinion of KAGAN, J.). There is, however, a positive association between the two factors: A secondary use that is more different in purpose and character is less likely to usurp demand for the original work or its derivatives, as the Court has explained, see Campbell, 519 U. S., at 591. This relationship should be fairly obvious. But see post, at 22 (KAGAN, J., dissenting) (suggesting that the first factor can favor only the user and the fourth factor only the copyright owner). Still, the relationship is not absolute. For example, copies for classroom use might fulfill demand for an original work. The first factor may still favor the copyist, even if the fourth factor is shown not to. At the same time, other forms of straight copying may be fair if a strong showing on the fourth factor outweighs a weak showing on the first.

[13] The dissent misconstrues the role of commercialism in this analysis. The Court does not hold that “[a]ll that matters is that [AWF] and the publisher entered into a licensing transaction”; or that the first-factor inquiry “should disregard Warhol’s creative contributions because he licensed his work”; or that an artist may not “market even a transformative follow-on work.” Post, at 3, 19, 34 (opinion of KAGAN, J.). Instead, consistent with the statute, “whether [a] use is of a commercial nature or is for nonprofit educational purposes” is one element of the first factor, §107(1); it does not dispose of that factor, much less the fair use inquiry. As this opinion makes clear, the commercial character of a secondary use should be weighed against the extent to which the use is transformative or otherwise justified. Supra, at 18 (citing Campbell, 510 U. S., at 579– 580, 585); see also supra, at 12, 19–20, and n. 8, 25; infra, at 34–35.

[14] The dissent contends that the Court gives “little role” to “the key term ‘character.’” Post, at 19 (opinion of KAGAN, J.). This is somewhat puzzling, as the Court has previously employed “character” to encompass exactly what the dissent downplays: “‘the commercial or nonprofit char acter of an activity.’” Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417, 448–449 (1984) (quoting H. R. Rep. No. 94–1476, at 66); see also Campbell, 510 U. S., at 572, 584–585 (repeatedly referring to “commercial character”). Rather than looking to this case law, the dissent looks up the word “character” in a dictionary. See post, at 13. But the dissent’s preferred definition—“a thing’s ‘main or essential nature[,] esp[ecially] as strongly marked and serving to distinguish,’ ” post, at 20 (quoting Webster’s Third New International Dictionary 376 (1976))—helps Goldsmith, not AWF. Even this definition does not support the implication that “character” is determined by any aesthetic distinctiveness, such as the addition of any new expression. Instead, it is the “main or essential nature” that must be “strongly marked and serv[e] to distinguish.” So return to Orange Prince on the cover of the Condé Nast issue commemorating Prince, see fig. 5, supra, and ask, what is the main or essential nature of the secondary use of Goldsmith’s photograph in that context?

[15] The situation might be different if AWF licensed Warhol’s Soup Cans to a soup business to serve as its logo. That use would share much the same purpose of Campbell’s logo, even though Soup Cans has some new meaning or message. This hypothetical, though fanciful, is parallel to the situation here: Both Goldsmith and AWF sold images of Prince (AWF’s copying Goldsmith’s) to magazines to illustrate stories about the celebrity, which is the typical use made of Goldsmith’s photographs.

[16] The dissent either does not follow, or chooses to ignore, this analysis. The point is not simply that the Soup Cans series comments on consumer culture, similar to how Warhol’s celebrity images comment on celebrity culture. Post, at 15 (opinion of KAGAN, J.). Rather, as the discussion makes clear, the degree of difference in purpose and character between Campbell’s soup label and Warhol’s painting is nearly absolute. Plus, Warhol’s use targets Campbell’s logo, at least in part. These features (which are absent in this case) strengthen Warhol’s claim to fairness in copying that logo in a painting.

[17] The dissent is stumped. Buried in a conclusory footnote, it suggests that the fourth fair use factor alone takes care of derivative works like book-to-film adaptations. Post, at 12, n. 5. This idea appears to come from a Hail Mary lobbed by AWF when it got caught in the same bind. See Tr. of Oral Arg. 15–16. The Court is aware of no authority for the proposition that the first factor favors such uses (on the dissent’s view, the first factor must, because the use modifies the expressive content of an original work), leaving it to the fourth factor to ensure that §106(2) is not a dead letter. Certainly Google, which merely noted in passing that “[m]aking a film of an author’s book may . . . mean potential or presumed losses to the copyright owner,” did not hold as much. 593 U. S., at ___ (slip op., at 30); see id., at ___–___, ___–___ (slip op., at 24–28, 30–35).

[18] The dissent makes a similar mistake with Google: It fails to read the decision as a whole. So while the dissent claims that the “[Google] Court would have told this one to go back to school,” it might be easier just to go back and read Google. Post, at 2 (opinion of KAGAN, J.). The Court did not hold that any secondary use that is innovative, in some sense, or that a judge or Justice considers to be creative progress consistent with the constitutional objective of copyright, is thereby transformative. The Court instead emphasized that Google used Sun’s code in a “distinct and different” context, and “only insofar as needed” or “necessary” to achieve Google’s new purpose. Google, 593 U. S., at ___ (slip op., at 26); see also n. 8, supra. In other words, the same concepts of use and justification that the Court relied on in Google are the ones that it applies today.

[19] The dissent demonstrates the danger of this approach. On its view, the first fair use factor favors AWF’s use of Goldsmith’s photograph simply because Warhol created worthy art. Goldsmith’s original work, by contrast, is just an “old photo,” one of Warhol’s “templates.” Post, at 2, 17 (opinion of KAGAN, J.). In other words, the dissent (much like the District Court) treats the first factor as determined by a single fact: “It’s a Warhol.” This Court agrees with the Court of Appeals that such logic would create a kind of privilege that has no basis in copyright law. See 11 F. 4th, at 43. Again, the Court does not deny that Warhol was a major figure in American art. But it leaves the worth of his works to the critics. Compare, e.g., D. Antin, Warhol: The Silver Tenement, in Pop Art: A Critical History 287 (S. Madoff ed. 1997), with R. Hughes, The Shock of the New 346–351 (2d ed. 1991). Whatever the contribution of Orange Prince, Goldsmith’s photograph is part of that contribution. A court need not, indeed should not, assess the relative worth of two works to decide a claim of fair use. Otherwise, “some works of genius would be sure to miss appreciation,” and, “[a]t the other end, copyright would be denied to [works] which appealed to a public less educated than the judge.” Bleistein, 188 U. S., at 251–252 (Holmes, J.). That Goldsmith’s photograph “had [its] worth and [its] success is sufficiently shown by the desire to reproduce [it] without regard to [her] rights.” Id., at 252.

[20] At no point in this litigation has AWF maintained that any of the Prince Series works, let alone Orange Prince on the cover of the 2016 Condé Nast special edition, comment on, criticize, or otherwise target Goldsmith’s photograph. That makes sense, given that the photograph was unpublished when Goldsmith licensed it to Vanity Fair, and that neither Warhol nor Vanity Fair selected the photograph, which was instead provided by Goldsmith’s agency.

[21] The dissent wonders: Why does targeting matter? See post, at 24 (opinion of KAGAN, J.). The reason, as this opinion explains, is the first factor’s attention to justification. Supra, at 17–20, and nn. 7–8, 29–30, and n. 18 (citing Campbell, 510 U. S., at 580–581; Google, 593 U. S., at ___ (slip op., at 26)). Compare, for example, a film adaptation of Gone With the Wind with a novel, The Wind Done Gone, that “inverts” the original’s “portrait of race relations” to expose its “romantic, idealized” portrayal of the antebellum South. SunTrust Bank v. Houghton Mifflin Co., 268 F. 3d 1257, 1270 (CA11 2001); id., at 1280 (Marcus, J., specially concurring). Or, to build from one of the artistic works the dissent chooses to feature, consider a secondary use that borrows from Manet’s Olympia to shed light on the original’s depiction of race and sex. See R. Storr & C. Armstrong, Lunch With Olympia (2016). Although targeting is not always required, fair use is an affirmative defense, and AWF bears the burden to justify its taking of Goldsmith’s work with some reason other than, “I can make it better.”

[22] The dissent oddly suggests that under the Court’s opinion, the first fair use factor favors such uses. See post, at 12, n. 5. This ignores, well, pretty much the entire opinion. See supra, at 14–17, 22–24, 26–27, 28– 29, 32–33 (degree of difference in purpose and character); supra, at 18, 24 (commercial nature); supra, at 17–19, 27, 30, 34–35 (justification). In particular, the Court does not hold that the first factor favors any user who “wants to reach different buyers, in different markets, consuming different products.” Post, at 13, n. 5 (opinion of KAGAN, J.). The dissent apparently deduces this proposition from its inverse, which is a common logical fallacy.

[23] By the time of the licensing, Warhol had died and the Warhol Foundation had stepped into his shoes. But for ease of exposition, I will refer to both the artist and his successor-in-interest as Warhol.

[24] One preliminary note before beginning in earnest. As readers are by now aware, the majority opinion is trained on this dissent in a way majority opinions seldom are. Maybe that makes the majority opinion selfrefuting? After all, a dissent with “no theory” and “[n]o reason” is not one usually thought to merit pages of commentary and fistfuls of comeback footnotes. Ante, at 36. In any event, I’ll not attempt to rebut point for point the majority’s varied accusations; instead, I’ll mainly rest on my original submission. I’ll just make two suggestions about reading what follows. First, when you see that my description of a precedent differs from the majority’s, go take a look at the decision. Second, when you come across an argument that you recall the majority took issue with, go back to its response and ask yourself about the ratio of reasoning to ipse dixit. With those two recommendations, I’ll take my chances on readers’ good judgment.

[25] The majority attempts to minimize the visual dissimilarities between Warhol’s silkscreen and Goldsmith’s photograph by rotating the former image and then superimposing it on the latter one. See ante, at 9 (fig. 6); see also Brief for Goldsmith 17 (doing the same thing). But the majority is trying too hard: Its manipulated picture in fact reveals the significance of the cropping and facial reorientation that went into Warhol’s image. And the majority’s WarGold combo of course cannot obscure the other differences, of color and presentation, between the two works.

[26] In the spirit of this opinion, I might have quoted that line without further ascription. But lawyers believe in citations, so I will tell you that the Rodgers lyric (which is, of course, from the Sound of Music) is used— to make the same point I do—in Rob Kapilow’s Listening for America: Inside the Great American Songbook From Gershwin to Sondheim (2019). One of that book’s themes is that even the most “radically new” music builds on existing works—or as Irving Berlin put the point, “songs make history, and history makes songs.” Id., at xv, 2. And so too for every other form of art. See infra, at 26–34 (making this point at greater length—and with pictures!).

[27] The fourth factor has, to use the majority’s repeated example, forced many a filmmaker to pay for adapting books into movies—as we noted two Terms ago. See Google LLC v. Oracle America, Inc., 593 U. S. ___, ___ (2021) (slip op., at 30) (explaining that film adaptations may founder on “[t]he fourth statutory factor” because “[m]aking a film of an author’s book” may result in “potential or presumed losses to the copyright owner”). The majority asserts that it is “aware of no authority for the proposition” that the fourth factor can thus protect against unlicensed film adaptations, insisting that the first factor must do (or at least share in) the work. Ante, at 29, n. 17; see ante, at 16, 28–29, 36. But Google is the “authority for the proposition”: That’s just what it said, in so many words. And anyway, the majority’s own first-factor test, applied consistently, would favor, not stop, the freeloading filmmaker. As you’ve seen (and I’ll discuss below), that test boils down to whether a follow-on work serves substantially the same commercial purpose as the original—here, “depict[ing] Prince in magazine stories about Prince.” Ante, at 12–13; see ante, at 22–23, and n. 11, 27, n. 15, 33, 35. A film adaptation doesn’t fit that mold: The filmmaker (unlike Warhol, in the majority’s view) wants to reach different buyers, in different markets, consuming different products. The majority at one point suggests it might have some different factor 1 test in its back pocket to deal with this problem. See ante, at 35, n. 22. But assuming the majority’s approach, as stated repeatedly in its opinion, is truly the majority’s approach, factor 1 won’t help the author in the book-to-film situation. Under that approach, it is the fourth factor, not the first, which has to “take[] care of derivative works like book-to-film adaptations.” Ante, at 29, n. 17. It’s a good thing the majority errs in believing that the fourth factor isn’t up to the job.

[28] I have to admit, I stole that last phrase from Michael Lewis’s The New New Thing: A Silicon Valley Story (2014). I read the book some time ago, and the phrase stuck with me (as phrases often do). I wouldn’t have thought of it on my own.

[29] The majority seeks some statutory backing in what it describes as §107’s reference to the “specific ‘use’ ” of a work “alleged to be ‘an infringe ment.’ ” Ante, at 20; see also ante, at 2, 4 (GORSUCH, J., concurring). Be cause the challenged use here is a licensing (so says the majority), all that matters is that Goldsmith engaged in similar commercial transactions. But the majority is both rewriting and splicing the statute. The key part of the statute simply asks whether the “use made of a [copyrighted] work” is fair. (The term “alleged infringement,” which the majority banks on, nowhere exists in the text; indeed, all the statute says about infringement, and in a separate sentence, is that a fair use doesn’t count as one.) The statute—that is, the actual one—thus focuses attention on what the copier does with the underlying work. So when the statute more particularly asks (in factor 1) about the “purpose and character of the use”—meaning again, the “use made of [the copyrighted] work”—it is asking to what end, and with what result, the copier made use of the original. And that necessarily involves the issue of transformation—more specifically here, how Warhol’s silkscreen transformed Goldsmith’s photo.

[30] No worries, the majority says: Today’s decision is only about the commercial licensing of artistic works, not about their “creation” or their other uses. See ante, at 21, and n. 10. So, for example, if Warhol had used his Prince silkscreen “for teaching purposes” or sought to “display [it] in a nonprofit museum,” the first factor could have gone the other way. Ante, at 21, n. 10; ante, at 6 (GORSUCH, J., concurring). But recall what Samuel Johnson said about “blockheads”: Unless an artist is one, he makes art for money. See supra, at 21. So when the majority denies follow-on artists the full reward of their creativity, it diminishes their incentive to create. And as should go without saying, works not created will not appear in classrooms and museums.

[31] OK, one last one: T. S. Eliot made the same point more, shall we say, poetically. We often harp, he wrote, on “the poet’s difference from his predecessors.” The Sacred Wood 43 (1921). “[But] we shall often find that not only the best, but the most individual parts of his work may be those in which the dead poets, his ancestors, assert their immortality most vigorously. . . . No poet, no artist of any art, has his complete meaning alone.” Id., at 43–44.

[32] He is, though, also one of modern music’s most bounteous sources. His work has been copied so often that Rolling Stone (whose name was partly inspired by—OK, you guessed it—Bob Dylan) recently published a list of the 80 greatest Dylan covers. See J. Wenner, A Letter from the Editor, Rolling Stone, Nov. 9, 1967, p. 2; J. Dolan et al., The 80 Greatest Dylan Covers of All Time, Rolling Stone, May 24, 2021 (online source archived at https://www.supremecourt.gov). (The list’s collators noted that Dylan so “loved the ide[a] of other people doing his songs” that they struggled to settle on 80. Ibid.) To see how important all that copying was, consider Mr. Tambourine Man. When the Byrds first heard Dylan’s demo of the song, they weren’t sure they could use it. (David Crosby thought it was way too long.) But Roger McGuinn decided he could “save” the tune. Ibid. Add a Bach-inspired guitar lick (truly, J. S. Bach) and a Beatles-inspired beat, and the “pound of Dylan’s acoustic guitars” was “transformed” into a “danceable” and “uplifting” megahit. R. Unterberger, Turn! Turn! Turn! 137 (2002). And that rendition (not Dylan’s own) launched a thousand ships. Among other things, it “spawned an entirely new style” of music—what soon came to be known as “folk-rock.” Id., at 108, 132–133.

Justice BREYER delivered the opinion of the Court.

Thomas C. Goldstein, Bethesda, MD, for the petitioner.

E. Joshua Rosenkranz, New York, NY, for the respondent.

Deputy Solicitor General Malcolm L. Stewart for the United States as amicus curiae, by special leave of the Court, supporting the respondent.

Kent Walker, Catherine Lacavera, Renny Hwang, Google LLC, Mountain View, CA, Lisa S. Blatt, David M. Krinsky, Sarah M. Harris, Meng Jia Yang, Williams & Connolly LLP, Washington, DC, Robert A. Van Nest, Christa M. Anderson, Eugene M. Paige, Reid P. Mullen, Keker, Van Nest, & Peters LLP, San Francisco, CA, Thomas C. Goldstein, Sarah E. Harrington, Kevin K. Russell, Daniel Woofter, Erica Oleszczuk Evans, Goldstein & Russell, P.C., Bethesda, MD, Michael S. Kwun, Kwun Bhansali Lazarus LLP, San Francisco, CA, Bruce W. Baber, Marisa C. Maleck, King & Spalding LLP, Atlanta, GA, for petitioner.

Dorian E. Daley, Deborah K. Miller, Matthew M. Sarboraria, Andrew C. Temkin, Oracle America, Inc., Redwood Shores, CA, Dale M. Cendali, Joshua L. Simmons, Jordan M. Romanoff, Ari E. Lipsitz, Kirkland & Ellis LLP, New York, NY, E. Joshua Rosenkranz, Annette L. Hurst, Peter Bicks, Lisa T. Simpson, Andrew D. Silverman, Matthew R. Shahabian, Jeremy Peterman, Hannah Garden-Monheit, Geoffrey Moss, Orrick, Herrington & Sutcliffe LLP, New York, NY, for respondent.

Justice BREYER delivered the opinion of the Court. Oracle America, Inc., is the current owner of a copyright in Java SE, a computer program that uses the popular Java computer programming language. Google, without permission, has copied a portion of that program, a portion that enables a programmer to call up prewritten software that, together with the computer's hardware, will carry out a large number of specific tasks. The lower courts have considered (1) whether Java SE's owner could copyright the portion that Google copied, and (2) if so, whether Google's copying nonetheless constituted a "fair use" of that material, thereby freeing Google from copyright liability. The Federal Circuit held in Oracle's favor (i.e. , that the portion is copyrightable and Google's copying did not constitute a "fair use"). In reviewing that decision, we assume, for argument's sake, that the material was copyrightable. But we hold that the copying here at issue nonetheless constituted a fair use. Hence, Google's copying did not violate the copyright law.

I

In 2005, Google acquired Android, Inc., a startup firm that hoped to become involved in smartphone software. Google sought, through Android, to develop a software platform for mobile devices like smartphones. 886 F.3d 1179, 1187 (C.A. Fed. 2018) ; App. 137–138, 242–243. A platform provides the necessary infrastructure for computer programmers to develop new programs and applications. One might think of a software platform as a kind of factory floor where computer programmers (analogous to autoworkers, designers, or manufacturers) might come, use sets of tools found there, and create new applications for use in, say, smartphones. (For visual explanations of "platforms" and other somewhat specialized computer-related terms, you might want to look at the material in Appendix A, infra .)

Google envisioned an Android platform that was free and open, such that software developers could use the tools found there free of charge. Its idea was that more and more developers using its Android platform would develop ever more Android-based applications, all of which would make Google's Android-based smartphones more attractive to ultimate consumers. Consumers would then buy and use ever more of those phones. Oracle America, Inc. v. Google Inc. , 872 F.Supp.2d 974, 978 (N.D. Cal. 2012) ; App. 111, 464. That vision required attracting a sizeable number of skilled programmers.

At that time, many software developers understood and wrote programs using the Java programming language, a language invented by Sun Microsystems (Oracle's predecessor). 872 F.Supp.2d at 975, 977. About six million programmers had spent considerable time learning, and then using, the Java language. App. 228. Many of those programmers used Sun's own popular Java SE platform to develop new programs primarily for use in desktop and laptop computers. Id ., at 151–152, 200. That platform allowed developers using the Java language to write programs that were able to run on any desktop or laptop computer, regardless of the underlying hardware (i.e. , the programs were in large part "interoperable"). 872 F.Supp.2d at 977. Indeed, one of Sun's slogans was " ‘write once, run anywhere.’ " 886 F.3d at 1186.

Shortly after acquiring the Android firm, Google began talks with Sun about  the possibility of licensing the entire Java platform for its new smartphone technology. Oracle , 872 F.Supp.2d at 978. But Google did not want to insist that all programs written on the Android platform be interoperable. 886 F.3d at 1187. As Android's founder explained, "[t]he whole idea about [an] open source [platform] is to have very, very few restrictions on what people can do with it," App. 659, and Sun's interoperability policy would have undermined that free and open business model. Apparently, for reasons related to this disagreement, Google's negotiations with Sun broke down. Google then built its own platform.

The record indicates that roughly 100 Google engineers worked for more than three years to create Google's Android platform software. Id. , at 45, 117, 212. In doing so, Google tailored the Android platform to smartphone technology, which differs from desktop and laptop computers in important ways. A smartphone, for instance, may run on a more limited battery or take advantage of GPS technology. Id., at 197–198. The Android platform offered programmers the ability to program for that environment. To build the platform, Google wrote millions of lines of new code. Because Google wanted millions of programmers, familiar with Java, to be able easily to work with its new Android platform, it also copied roughly 11,500 lines of code from the Java SE program. 886 F.3d at 1187. The copied lines of code are part of a tool called an Application Programming Interface, or API.

What is an API? The Federal Circuit described an API as a tool that "allow[s] programmers to use ... prewritten code to build certain functions into their own programs, rather than write their own code to perform those functions from scratch." Oracle America, Inc. v. Google, Inc. , 750 F.3d 1339, 1349 (2014). Through an API, a programmer can draw upon a vast library of prewritten code to carry out complex tasks. For lay persons, including judges, juries, and many others, some elaboration of this description may prove useful.

Consider in more detail just what an API does. A computer can perform thousands, perhaps millions, of different tasks that a programmer may wish to use. These tasks range from the most basic to the enormously complex. Ask the computer, for example, to tell you which of two numbers is the higher number or to sort one thousand numbers in ascending order, and it will instantly give you the right answer. An API divides and organizes the world of computing tasks in a particular way. Programmers can then use the API to select the particular task that they need for their programs. In Sun's API (which we refer to as the Sun Java API), each individual task is known as a "method." The API groups somewhat similar methods into larger "classes," and groups somewhat similar classes into larger "packages." This method-class-package organizational structure is referred to as the Sun Java API's "structure, sequence, and organization," or SSO.

For each task, there is computer code, known as "implementing code," that in effect tells the computer how to execute the particular task you have asked it to perform (such as telling you, of two numbers, which is the higher). See Oracle , 872 F.Supp.2d at 979–980. The implementing code (which Google independently wrote) is not at issue here. For a single task, the implementing code may be hundreds of lines long. It would be difficult, perhaps impossible, for a programmer to create complex software programs without drawing on prewritten task-implementing programs to execute discrete tasks.

But how do you as the programmer tell the computer which of the implementing  code programs it should choose, i.e. , which task it should carry out? You do so by entering into your own program a command that corresponds to the specific task and calls it up. Those commands, known as "method calls," help you carry out the task by choosing those programs written in implementing code that will do the trick, i.e. , that will instruct the computer so that your program will find the higher of two numbers. If a particular computer might perform, say, a million different tasks, different method calls will tell the computer which of those tasks to choose. Those familiar with the Java language already know countless method calls that allow them to invoke countless tasks.

And how does the method call (which a programmer types) actually locate and invoke the particular implementing code that it needs to instruct the computer how to carry out a particular task? It does so through another type of code, which the parties have labeled "declaring code." Declaring code is part of the API. For each task, the specific command entered by the programmer matches up with specific declaring code inside the API. That declaring code provides both the name for each task and the location of each task within the API's overall organizational system (i.e., the placement of a method within a particular class and the placement of a class within a particular package). In this sense, the declaring code and the method call form a link, allowing the programmer to draw upon the thousands of prewritten tasks, written in implementing code. See id., at 979–980. Without that declaring code, the method calls entered by the programmer would not call up the implementing code.

The declaring code therefore performs at least two important functions in the Sun Java API. The first, more obvious, function is that the declaring code enables a set of shortcuts for programmers. By connecting complex implementing code with method calls, it allows a programmer to pick out from the API's task library a particular task without having to learn anything more than a simple command. For example, a programmer building a new application for personal banking may wish to use various tasks to, say, calculate a user's balance or authenticate a password. To do so, she need only learn the method calls associated with those tasks. In this way, the declaring code's shortcut function is similar to a gas pedal in a car that tells the car to move faster or the QWERTY keyboard on a typewriter that calls up a certain letter when you press a particular key. As those analogies demonstrate, one can think of the declaring code as part of an interface between human beings and a machine.

The second, less obvious, function is to reflect the way in which Java's creators have divided the potential world of different tasks into an actual world, i.e. , precisely which set of potentially millions of different tasks we want to have our Java-based computer systems perform and how we want those tasks arranged and grouped. In this sense, the declaring code performs an organizational function. It determines the structure of the task library that Java's creators have decided to build. To understand this organizational system, think of the Dewey Decimal System that categorizes books into an accessible system or a travel guide that arranges a city's attractions into different categories. Language itself provides a rough analogy to the declaring code's organizational feature, for language itself divides into sets of concepts a world that in certain respects other languages might have divided differently. The developers of Java, for example, decided to place a method called "draw image" inside of a class called "graphics." Consider a comprehensive, albeit farfetched, analogy that illustrates how the API is actually used by a programmer. Imagine that you can, via certain keystrokes, instruct a robot to move to a particular file cabinet, to open a certain drawer, and to pick out a specific recipe. With the proper recipe in hand, the robot then moves to your kitchen and gives it to a cook to prepare the dish. This example mirrors the API's task-related organizational system. Through your simple command, the robot locates the right recipe and hands it off to the cook. In the same way, typing in a method call prompts the API to locate the correct implementing code and hand it off to your computer. And importantly, to select the dish that you want for your meal, you do not need to know the recipe's contents, just as a programmer using an API does not need to learn the implementing code. In both situations, learning the simple command is enough.

Now let us consider the example that the District Court used to explain the precise technology here. Id., at 980–981. A programmer wishes, as part of her program, to determine which of two integers is the larger. To do so in the Java language, she will first write java.lang . Those words (which we have put in bold type) refer to the "package" (or by analogy to the file cabinet). She will then write Math . That word refers to the "class" (or by analogy to the drawer). She will then write max . That word refers to the "method" (or by analogy to the recipe). She will then make two parentheses ( ). And, in between the parentheses she will put two integers, say 4 and 6, that she wishes to compare. The whole expression—the method call—will look like this: "java.lang.Math.max(4, 6) ." The use of this expression will, by means of the API, call up a task-implementing program that will determine the higher number.

In writing this program, the programmer will use the very symbols we have placed in bold in the precise order we have placed them. But the symbols by themselves do nothing. She must also use software that connects the symbols to the equivalent of file cabinets, drawers, and files. The API is that software. It includes both the declaring code that links each part of the method call to the particular task-implementing program, and the implementing code that actually carries it out. (For an illustration of this technology, see Appendix B, infra .)

Now we can return to the copying at issue in this case. Google did not copy the task-implementing programs, or implementing code, from the Sun Java API. It wrote its own task-implementing programs, such as those that would determine which of two integers is the greater or carry out any other desired (normally far more complex) task. This implementing code constitutes the vast majority of both the Sun Java API and the API that Google created for Android. App. 212. For most of the packages in its new API, Google also wrote its own declaring code. For 37 packages, however, Google copied the declaring code from the Sun Java API. Id ., at 106–107. As just explained, that means that, for those 37 packages, Google necessarily copied both the names given to particular tasks and the grouping of those tasks into classes and packages.

In doing so, Google copied that portion of the Sun Java API that allowed programmers expert in the Java programming language to use the "task calling" system that they had already learned. As Google saw it, the 37 packages at issue included those tasks that were likely to prove most useful to programmers working on applications for mobile devices. In fact, "three of these packages were ...  fundamental to being able to use the Java language at all." Oracle , 872 F.Supp.2d at 982. By using the same declaring code for those packages, programmers using the Android platform can rely on the method calls that they are already familiar with to call up particular tasks (e.g. , determining which of two integers is the greater); but Google's own implementing programs carry out those tasks. Without that copying, programmers would need to learn an entirely new system to call up the same tasks.

We add that the Android platform has been successful. Within five years of its release in 2007, Android-based devices claimed a large share of the United States market. Id., at 978. As of 2015, Android sales produced more than $42 billion in revenue. 886 F.3d at 1187.

In 2010 Oracle Corporation bought Sun. Soon thereafter Oracle brought this lawsuit in the United States District Court for the Northern District of California.

II

The case has a complex and lengthy history. At the outset Oracle complained that Google's use of the Sun Java API violated both copyright and patent laws. For its copyright claim, Oracle alleged that Google infringed its copyright by copying, for 37 packages, both the literal declaring code and the nonliteral organizational structure (or SSO) of the API, i.e., the grouping of certain methods into classes and certain classes into packages. For trial purposes the District Court organized three proceedings. The first would cover the copyright issues, the second would cover the patent issues, and the third would, if necessary, calculate damages. Oracle , 872 F.Supp.2d at 975. The court also determined that a judge should decide whether copyright law could protect an API and that the jury should decide whether Google's use of Oracle's API infringed its copyright and, if so, whether a fair use defense nonetheless applied. Ibid.

After six weeks of hearing evidence, the jury rejected Oracle's patent claims (which have since dropped out of the case). It also found a limited copyright infringement. It deadlocked as to whether Google could successfully assert a fair use defense. Id., at 976. The judge then decided that, regardless, the API's declaring code was not the kind of creation to which copyright law extended its protection. The court noted that Google had written its own implementing code, which constituted the vast majority of its API. It wrote that "anyone is free under the Copyright Act to write his or her own code to carry out exactly the same" tasks that the Sun Java API picks out or specifies. Ibid . Google copied only the declaring code and organizational structure that was necessary for Java-trained programmers to activate familiar tasks (while, as we said, writing its own implementing code). Hence the copied material, in the judge's view, was a "system or method of operation," which copyright law specifically states cannot be copyrighted. Id., at 977 (citing 17 U.S.C. § 102(b) ).

On appeal, the Federal Circuit reversed. That court held that both the API's declaring code and its organizational structure could be copyrighted. Oracle , 750 F.3d at 1354. It pointed out that Google could have written its own declaring code just as it wrote its own implementing code. And because in principle Google might have created a whole new system of dividing and labeling tasks that could be called up by programmers, the declaring code (and the system) that made up the Sun Java API was copyrightable. Id., at 1361.

The Federal Circuit also rejected Oracle's plea that it decide whether Google had the right to use the Sun Java API because doing so was a "fair use," immune  from copyright liability. The Circuit wrote that fair use "both permits and requires ‘courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.’ " Id., at 1372–1373. But, it added, this "is not a case in which the record contains sufficient factual findings upon which we could base a de novo assessment of Google's affirmative defense of fair use." Id., at 1377. And it remanded the case for another trial on that question. Google petitioned this Court for a writ of certiorari, seeking review of the Federal Circuit's copyrightability determination. We denied the petition. Google, Inc. v. Oracle America, Inc. , 576 U.S. 1071, 135 S.Ct. 2887, 192 L.Ed.2d 948 (2015).

On remand the District Court, sitting with a jury, heard evidence for a week. The court instructed the jury to answer one question: Has Google "shown by a preponderance of the evidence that its use in Android" of the declaring code and organizational structure contained in the 37 Sun Java API packages that it copied "constitutes a ‘fair use’ under the Copyright Act?" App. 294. After three days of deliberation the jury answered the question in the affirmative. Id. , at 295. Google had shown fair use.

Oracle again appealed to the Federal Circuit. And the Circuit again reversed the District Court. The Federal Circuit assumed all factual questions in Google's favor. But, it said, the question whether those facts constitute a "fair use" is a question of law. 886 F.3d at 1193. Deciding that question of law, the court held that Google's use of the Sun Java API was not a fair use. It wrote that "[t]here is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform." Id., at 1210. It remanded the case again, this time for a trial on damages.

Google then filed a petition for certiorari in this Court. It asked us to review the Federal Circuit's determinations as to both copyrightability and fair use. We granted its petition.

III

A

Copyright and patents, the Constitution says, are to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Art. I, § 8, cl. 8. Copyright statutes and case law have made clear that copyright has practical objectives. It grants an author an exclusive right to produce his work (sometimes for a hundred years or more), not as a special reward, but in order to encourage the production of works that others might reproduce more cheaply. At the same time, copyright has negative features. Protection can raise prices to consumers. It can impose special costs, such as the cost of contacting owners to obtain reproduction permission. And the exclusive rights it awards can sometimes stand in the way of others exercising their own creative powers. See generally Twentieth Century Music Corp. v. Aiken , 422 U.S. 151, 156, 95 S.Ct. 2040, 45 L.Ed.2d 84 (1975) ; Mazer v. Stein , 347 U.S. 201, 219, 74 S.Ct. 460, 98 L.Ed. 630 (1954).

Macaulay once said that the principle of copyright is a "tax on readers for the purpose of giving a bounty to writers." T. Macaulay, Speeches on Copyright 25 (E. Miller ed. 1913). Congress, weighing advantages and disadvantages, will determine the more specific nature of the tax, its boundaries and conditions, the existence of exceptions and exemptions, all by  exercising its own constitutional power to write a copyright statute.

Four provisions of the current Copyright Act are of particular relevance in this case. First, a definitional provision sets forth three basic conditions for obtaining a copyright. There must be a "wor[k] of authorship," that work must be "original," and the work must be "fixed in any tangible medium of expression." 17 U.S.C. § 102(a) ; see also Feist Publications, Inc. v. Rural Telephone Service Co. , 499 U.S. 340, 345, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991) (explaining that copyright requires some original "creative spark" and therefore does not reach the facts that a particular expression describes).

Second, the statute lists certain kinds of works that copyright can protect. They include "literary," "musical," "dramatic," "motion pictur[e]," "architectural," and certain other works. § 102(a). In 1980, Congress expanded the reach of the Copyright Act to include computer programs. And it defined "computer program" as " ‘a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.’ " § 10, 94 Stat. 3028 (codified at 17 U.S.C. § 101 ).

Third, the statute sets forth limitations on the works that can be copyrighted, including works that the definitional provisions might otherwise include. It says, for example, that copyright protection cannot be extended to "any idea, procedure, process, system, method of operation, concept, principle, or discovery ...." § 102(b). These limitations, along with the need to "fix" a work in a "tangible medium of expression," have often led courts to say, in shorthand form, that, unlike patents, which protect novel and useful ideas, copyrights protect "expression" but not the "ideas" that lie behind it. See Sheldon v. Metro-Goldwyn Pictures Corp. , 81 F.2d 49, 54 (C.A.2 1936) (Hand, J.); B. Kaplan, An Unhurried View of Copyright 46–52 (1967).

Fourth, Congress, together with the courts, has imposed limitations upon the scope of copyright protection even in respect to works that are entitled to a copyright. For example, the Copyright Act limits an author's exclusive rights in performances and displays, § 110, or to performances of sound recordings, § 114. And directly relevant here, a copyright holder cannot prevent another person from making a "fair use" of copyrighted material. § 107.

We have described the "fair use" doctrine, originating in the courts, as an "equitable rule of reason" that "permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster." Stewart v. Abend , 495 U.S. 207, 236, 110 S.Ct. 1750, 109 L.Ed.2d 184 (1990) (internal quotation marks omitted). The statutory provision that embodies the doctrine indicates, rather than dictates, how courts should apply it. The provision says:

"[T]he fair use of a copyrighted work, ... for purposes such as criticism, comment, news reporting, teaching ... scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

"(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

"(2) the nature of the copyrighted work;

"(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

"(4) the effect of the use upon the potential market for or value of the copyrighted work." § 107.

In applying this provision, we, like other courts, have understood that the provision's list of factors is not exhaustive (note the words "include" and "including"), that the examples it sets forth do not exclude other examples (note the words "such as"), and that some factors may prove more important in some contexts than in others. See Campbell v. Acuff-Rose Music, Inc. , 510 U.S. 569, 577, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994) ; Harper & Row, Publishers, Inc. v. Nation Enterprises , 471 U.S. 539, 560, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985) ; see also Leval, Toward a Fair Use Standard, 103 Harv. L. Rev 1105, 1110 (1990) (Leval) ("The factors do not represent a score card that promises victory to the winner of the majority"). In a word, we have understood the provision to set forth general principles, the application of which requires judicial balancing, depending upon relevant circumstances, including "significant changes in technology." Sony Corp. of America v. Universal City Studios, Inc. , 464 U.S. 417, 430, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984) ; see also Aiken , 422 U.S., at 156, 95 S.Ct. 2040 ("When technological change has rendered its literal terms ambiguous, the Copyright Act must be construed in light of its basic purpose").

B

Google's petition for certiorari poses two questions. The first asks whether Java's API is copyrightable. It asks us to examine two of the statutory provisions just mentioned, one that permits copyrighting computer programs and the other that forbids copyrighting, e.g. , "process[es]," "system[s]," and "method[s] of operation." Pet. for Cert. 12. Google believes that the API's declaring code and organization fall into these latter categories and are expressly excluded from copyright protection. The second question asks us to determine whether Google's use of the API was a "fair use." Google believes that it was.

A holding for Google on either question presented would dispense with Oracle's copyright claims. Given the rapidly changing technological, economic, and business-related circumstances, we believe we should not answer more than is necessary to resolve the parties’ dispute. We shall assume, but purely for argument's sake, that the entire Sun Java API falls within the definition of that which can be copyrighted. We shall ask instead whether Google's use of part of that API was a "fair use." Unlike the Federal Circuit, we conclude that it was.

IV

The language of § 107, the "fair use" provision, reflects its judge-made origins. It is similar to that used by Justice Story in Folsom v. Marsh , 9 F.Cas. 342, 348 (No. 4,901) (C.C. D.Mass. 1841). See Campbell , 510 U.S. at 576, 114 S.Ct. 1164 (noting how "Justice Story's summary [of fair use considerations] is discernable" in § 107). That background, as well as modern courts’ use of the doctrine, makes clear that the concept is flexible, that courts must apply it in light of the sometimes conflicting aims of copyright law, and that its application may well vary depending upon context. Thus, copyright's protection may be stronger where the copyrighted material is fiction, not fact, where it consists of a motion picture rather than a news broadcast, or where it serves an artistic rather than a utilitarian function. See, e.g. , Stewart , 495 U.S., at 237–238, 110 S.Ct. 1750 ; Harper & Row , 471 U.S., at 563, 105 S.Ct. 2218 ; see also 4 M. Nimmer & D. Nimmer, Copyright § 13.05[A] [2][a] (2019) (hereinafter Nimmer on Copyright)  ("[C]opyright protection is narrower, and the corresponding application of the fair use defense greater, in the case of factual works than in the case of works of fiction or fantasy"). Similarly, courts have held that in some circumstances, say, where copyrightable material is bound up with uncopyrightable material, copyright protection is "thin." See Feist , 499 U.S., at 349, 111 S.Ct. 1282 (noting that "the copyright in a factual compilation is thin"); see also Experian Information Solutions, Inc. v. Nationwide Marketing Servs. Inc. , 893 F.3d 1176, 1186 (C.A.9 2018) ("In the context of factual compilations, ... there can be no infringement unless the works are virtually identical" (internal quotation marks omitted)).

Generically speaking, computer programs differ from books, films, and many other "literary works" in that such programs almost always serve functional purposes. These and other differences have led at least some judges to complain that "applying copyright law to computer programs is like assembling a jigsaw puzzle whose pieces do not quite fit." Lotus Development Corp. v. Borland Int'l, Inc. , 49 F.3d 807, 820 (C.A.1 1995) (BOUDIN, J., concurring).

These differences also led Congress to think long and hard about whether to grant computer programs copyright protection. In 1974, Congress established a National Commission on New Technological Uses of Copyrighted Works (CONTU) to look into the matter. §§ 201–208, 88 Stat. 1873–1875. After several years of research, CONTU concluded that the "availability of copyright protection for computer programs is desirable." Final Report 11 (July 31, 1978). At the same time, it recognized that computer programs had unique features. Mindful of not "unduly burdening users of programs and the general public," it wrote that copyright "should not grant anyone more economic power than is necessary to achieve the incentive to create." Id., at 12. And it believed that copyright's existing doctrines (e.g. , fair use), applied by courts on a case-by-case basis, could prevent holders from using copyright to stifle innovation. Ibid. ("Relatively few changes in the Copyright Act of 1976 are required to attain these objectives"). Congress then wrote computer program protection into the law. See § 10, 94 Stat. 3028.

The upshot, in our view, is that fair use can play an important role in determining the lawful scope of a computer program copyright, such as the copyright at issue here. It can help to distinguish among technologies. It can distinguish between expressive and functional features of computer code where those features are mixed. It can focus on the legitimate need to provide incentives to produce copyrighted material while examining the extent to which yet further protection creates unrelated or illegitimate harms in other markets or to the development of other products. In a word, it can carry out its basic purpose of providing a context-based check that can help to keep a copyright monopoly within its lawful bounds. See H. R. Rep. No. 94–1476, pp. 65–66 (1976) (explaining that courts are to "adapt the doctrine [of fair use] to particular situations on a case-by-case basis" and in light of "rapid technological change"); see, e.g., Lexmark Int'l, Inc. v. Static Control Components, Inc. , 387 F.3d 522, 543–545 (C.A.6 2004) (discussing fair use in the context of copying to preserve compatibility); Sony Computer Entertainment, Inc. v. Connectix Corp. , 203 F.3d 596, 603–608 (C.A.9 2000) (applying fair use to intermediate copying necessary to reverse engineer access to unprotected functional elements within a program);  Sega Enterprises Ltd. v. Accolade, Inc. , 977 F.2d 1510, 1521–1527 (C.A.9 1992) (holding that wholesale copying of copyrighted code as a preliminary step to develop a competing product was a fair use).

Justice THOMAS’ thoughtful dissent offers a very different view of how (and perhaps whether) fair use has any role to play for computer programs. We are told that no attempt to distinguish among computer code is tenable when considering "the nature of the work," see post , at 1215 – 12016, even though there are important distinctions in the ways that programs are used and designed, post , at 1220 ("The declaring code is what attracted programmers"). We are told that no reuse of code in a new program will ever have a valid "purpose and character," post , at 1218 – 1219, even though the reasons for copying computer code may vary greatly and differ from those applicable to other sorts of works, ibid. (accepting that copying as part of "reverse engineer[ing] a system to ensure compatibility" could be a valid purpose). And we are told that our fair use analysis must prioritize certain factors over others, post , at 1215, n. 5, even though our case law instructs that fair use depends on the context, see Campbell , 510 U.S., at 577–578, 114 S.Ct. 1164.

We do not understand Congress, however, to have shielded computer programs from the ordinary application of copyright's limiting doctrines in this way. By defining computer programs in § 101, Congress chose to place this subject matter within the copyright regime. Like other protected works, that means that the owners of computer programs enjoy the exclusive rights set forth in the Act, including the right to "reproduce [a] copyrighted work" or to "prepare derivative works." 17 U.S.C. § 106. But that also means that exclusive rights in computer programs are limited like any other works. Just as fair use distinguishes among books and films, which are indisputably subjects of copyright, so too must it draw lines among computer programs. And just as fair use takes account of the market in which scripts and paintings are bought and sold, so too must it consider the realities of how technological works are created and disseminated. We do not believe that an approach close to "all or nothing" would be faithful to the Copyright Act's overall design.

V

At the outset, Google argues that "fair use" is a question for a jury to decide; here the jury decided the question in Google's favor; and we should limit our review to determining whether "substantial evidence" justified the jury's decision. The Federal Circuit disagreed. It thought that the "fair use" question was a mixed question of fact and law; that reviewing courts should appropriately defer to the jury's findings of underlying facts; but that the ultimate question whether those facts showed a "fair use" is a legal question for judges to decide de novo .

We agree with the Federal Circuit's answer to this question. We have said, "[f]air use is a mixed question of law and fact." Harper & Row , 471 U.S., at 560, 105 S.Ct. 2218. We have explained that a reviewing court should try to break such a question into its separate factual and legal parts, reviewing each according to the appropriate legal standard. But when a question can be reduced no further, we have added that "the standard of review for a mixed question all depends—on whether answering it entails primarily legal or factual work." U. S. Bank N. A. v. Village at Lakeridge, LLC , 583 U. S. ––––, ––––, 138 S.Ct. 960, 967, 200 L.Ed.2d 218 (2018).

In this case, the ultimate "fair use" question primarily involves legal work. "Fair use" was originally a concept fashioned  by judges. Folsom , 9 F.Cas. at 348. Our cases still provide legal interpretations of the fair use provision. And those interpretations provide general guidance for future cases. See, e.g. , Campbell , 510 U.S., at 592–593, 114 S.Ct. 1164 (describing kinds of market harms that are not the concern of copyright); Harper & Row , 471 U.S., at 564, 105 S.Ct. 2218 ("scope of fair use is narrower with respect to unpublished works"); Sony , 464 U.S., at 451, 104 S.Ct. 774 (wholesale copying aimed at creating a market substitute is presumptively unfair). This type of work is legal work. U. S. Bank , 583 U. S., at ––––, 138 S.Ct., at 967 ("When applying the law involves developing auxiliary legal principles for use in other cases[,] appellate courts should typically review a decision de novo ").

Applying a legal "fair use" conclusion may, of course, involve determination of subsidiary factual questions, such as "whether there was harm to the actual or potential markets for the copyrighted work" or "how much of the copyrighted work was copied." 886 F.3d at 1196 ; see, e.g., Peter F. Gaito Architecture, LLC v. Simone Development Corp. , 602 F.3d 57, 63 (C.A.2 2010) (noting that in an infringement suit "the question of substantial similarity typically presents an extremely close question of fact"). In this case the Federal Circuit carefully applied the fact/law principles we set forth in U. S. Bank , leaving factual determinations to the jury and reviewing the ultimate question, a legal question, de novo .

Next, Google argues that the Federal Circuit's approach violates the Seventh Amendment. The Amendment both requires that "the right of trial by jury ... be preserved" and forbids courts to "re-examin[e]" any "fact tried by a jury." U. S. Const., Amdt. 7; see also Gasperini v. Center for Humanities, Inc. , 518 U.S. 415, 432–433, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996). The Reexamination Clause is no bar here, however, for, as we have said, the ultimate question here is one of law, not fact. It does not violate the Reexamination Clause for a court to determine the controlling law in resolving a challenge to a jury verdict, as happens any time a court resolves a motion for judgment as a matter of law. See, e.g., Neely v. Martin K. Eby Constr. Co. , 386 U.S. 317, 322, 87 S.Ct. 1072, 18 L.Ed.2d 75 (1967).

Nor is Google correct that "the right of trial by jury" includes the right to have a jury resolve a fair use defense. That Clause is concerned with "the particular trial decision" at issue. Markman v. Westview Instruments, Inc. , 517 U.S. 370, 376, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). Even though it is possible to find pre-Revolutionary English cases in which a judge sent related questions like fair abridgment to a jury, those questions were significantly different from the "fair use" doctrine as courts apply it today. See, e.g. , Gyles v. Wilcox , 2 Atk. 141, 142–144, 26 Eng. Rep. 489, 490–491 (Ch. 1740) (asking the Court to resolve the narrow question whether a shortened work could be considered a new work); Sayre v. Moore , 1 East 361, n., 102 Eng. Rep. 138, 139, n. (K. B. 1785) (discussing the jury's role in resolving whether copying constituted infringement). As far as contemporary fair use is concerned, we have described the doctrine as an "equitable," not a "legal," doctrine. We have found no case suggesting that application of U. S. Bank here would fail "to preserve the substance of the common-law [jury trial] right as it existed in 1791." Markman , 517 U.S., at 376, 116 S.Ct. 1384.

VI

We turn now to the basic legal question before us: Was Google's copying of the Sun Java API, specifically its use of the declaring code and organizational structure for  37 packages of that API, a "fair use." In answering this question, we shall consider the four factors set forth in the fair use statute as we find them applicable to the kind of computer programs before us. We have reproduced those four statutory factors supra , at 1196 – 1197. For expository purposes, we begin with the second.

A. "The Nature of the Copyrighted Work"

The Sun Java API is a "user interface." It provides a way through which users (here the programmers) can "manipulate and control" task-performing computer programs "via a series of menu commands." Lotus Development Corp. , 49 F.3d at 809. The API reflects Sun's division of possible tasks that a computer might perform into a set of actual tasks that certain kinds of computers actually will perform. Sun decided, for example, that its API would call up a task that compares one integer with another to see which is the larger. Sun's API (to our knowledge) will not call up the task of determining which great Arabic scholar decided to use Arabic numerals (rather than Roman numerals) to perform that "larger integer" task. No one claims that the decisions about what counts as a task are themselves copyrightable—although one might argue about decisions as to how to label and organize such tasks (e.g. , the decision to name a certain task "max" or to place it in a class called "Math." Cf. Baker v. Selden , 101 U.S., 99, 25 L.Ed. 841 (1880) ).

As discussed above, supra, at 1190 – 1192, and in Appendix B, infra , we can think of the technology as having three essential parts. First, the API includes "implementing code," which actually instructs the computer on the steps to follow to carry out each task. Google wrote its own programs (implementing programs) that would perform each one of the tasks that its API calls up.

Second, the Sun Java API associates a particular command, called a "method call," with the calling up of each task. The symbols java.lang. , for example, are part of the command that will call up the program (whether written by Sun or, as here, by Google) that instructs the computer to carry out the "larger number" operation. Oracle does not here argue that the use of these commands by programmers itself violates its copyrights.

Third, the Sun Java API contains computer code that will associate the writing of a method call with particular "places" in the computer that contain the needed implementing code. This is the declaring code. The declaring code both labels the particular tasks in the API and organizes those tasks, or "methods," into "packages" and "classes." We have referred to this organization, by way of rough analogy, as file cabinets, drawers, and files. Oracle does claim that Google's use of the Sun Java API's declaring code violates its copyrights.

The declaring code at issue here resembles other copyrighted works in that it is part of a computer program. Congress has specified that computer programs are subjects of copyright. It differs, however, from many other kinds of copyrightable computer code. It is inextricably bound together with a general system, the division of computing tasks, that no one claims is a proper subject of copyright. It is inextricably bound up with the idea of organizing tasks into what we have called cabinets, drawers, and files, an idea that is also not copyrightable. It is inextricably bound up with the use of specific commands known to programmers, known here as method calls (such as java.lang.Math.max , etc.), that Oracle does not here contest. And it is inextricably bound up with implementing code, which is copyrightable but was not copied. Moreover, the copied declaring code and the uncopied implementing programs call for, and reflect, different kinds of capabilities. A single implementation may walk a computer through dozens of different steps. To write implementing programs, witnesses told the jury, requires balancing such considerations as how quickly a computer can execute a task or the likely size of the computer's memory. One witness described that creativity as "magic" practiced by an API developer when he or she worries "about things like power management" for devices that "run on a battery." App. 143; see also id ., at 147, 204. This is the very creativity that was needed to develop the Android software for use not in laptops or desktops but in the very different context of smartphones.

The declaring code (inseparable from the programmer's method calls) embodies a different kind of creativity. Sun Java's creators, for example, tried to find declaring code names that would prove intuitively easy to remember. Id ., at 211. They wanted to attract programmers who would learn the system, help to develop it further, and prove reluctant to use another. See post , at 1215 ("Declaring code ... is user facing. It must be designed and organized in a way that is intuitive and understandable to developers so that they can invoke it"). Sun's business strategy originally emphasized the importance of using the API to attract programmers. It sought to make the API "open" and "then ... compete on implementations." App. 124–125. The testimony at trial was replete with examples of witnesses drawing this critical line between the user-centered declaratory code and the innovative implementing code. Id ., at 126–127, 159–160, 163–164, 187, 190–191.

These features mean that, as part of a user interface, the declaring code differs to some degree from the mine run of computer programs. Like other computer programs, it is functional in nature. But unlike many other programs, its use is inherently bound together with uncopyrightable ideas (general task division and organization) and new creative expression (Android's implementing code). Unlike many other programs, its value in significant part derives from the value that those who do not hold copyrights, namely, computer programmers, invest of their own time and effort to learn the API's system. And unlike many other programs, its value lies in its efforts to encourage programmers to learn and to use that system so that they will use (and continue to use) Sun-related implementing programs that Google did not copy.

Although copyrights protect many different kinds of writing, Leval 1116, we have emphasized the need to "recogni[ze] that some works are closer to the core of [copyright] than others," Campbell , 510 U.S., at 586, 114 S.Ct. 1164. In our view, for the reasons just described, the declaring code is, if copyrightable at all, further than are most computer programs (such as the implementing code) from the core of copyright. That fact diminishes the fear, expressed by both the dissent and the Federal Circuit, that application of "fair use" here would seriously undermine the general copyright protection that Congress provided for computer programs. And it means that this factor, "the nature of the copyrighted work," points in the direction of fair use.

B. "The Purpose and Character of the Use"

In the context of fair use, we have considered 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." Id. , at 579, 114 S.Ct. 1164. Commentators have put the matter more broadly, asking whether the copier's  use "fulfill[s] the objective of copyright law to stimulate creativity for public illumination." Leval 1111. In answering this question, we have used the word "transformative" to describe a copying use that adds something new and important. Campbell , 510 U.S., at 579, 114 S.Ct. 1164. An " ‘artistic painting’ " might, for example, fall within the scope of fair use even though it precisely replicates a copyrighted " ‘advertising logo to make a comment about consumerism.’ " 4 Nimmer on Copyright § 13.05[A][1][b] (quoting Netanel, Making Sense of Fair Use, 15 Lewis & Clark L. Rev. 715, 746 (2011) ). Or, as we held in Campbell , a parody can be transformative because it comments on the original or criticizes it, for "[p]arody needs to mimic an original to make its point." 510 U.S., at 580–581, 114 S.Ct. 1164.

Google copied portions of the Sun Java API precisely, and it did so in part for the same reason that Sun created those portions, namely, to enable programmers to call up implementing programs that would accomplish particular tasks. But since virtually any unauthorized use of a copyrighted computer program (say, for teaching or research) would do the same, to stop here would severely limit the scope of fair use in the functional context of computer programs. Rather, in determining whether a use is "transformative," we must go further and examine the copying's more specifically described "purpose[s]" and "character." 17 U.S.C. § 107(1).

Here Google's use of the Sun Java API seeks to create new products. It seeks to expand the use and usefulness of Android-based smartphones. Its new product offers programmers a highly creative and innovative tool for a smartphone environment. To the extent that Google used parts of the Sun Java API to create a new platform that could be readily used by programmers, its use was consistent with that creative "progress" that is the basic constitutional objective of copyright itself. Cf. Feist , 499 U.S., at 349–350, 111 S.Ct. 1282 ("The primary objective of copyright is not to reward the labor of authors, but ‘[t]o promote the Progress of Science and useful Arts’ " (quoting U. S. Const., Art. I, § 8, cl. 8 )).

The jury heard that Google limited its use of the Sun Java API to tasks and specific programming demands related to Android. It copied the API (which Sun created for use in desktop and laptop computers) only insofar as needed to include tasks that would be useful in smartphone programs. App. 169–170. And it did so only insofar as needed to allow programmers to call upon those tasks without discarding a portion of a familiar programming language and learning a new one. Id ., at 139–140. To repeat, Google, through Android, provided a new collection of tasks operating in a distinct and different computing environment. Those tasks were carried out through the use of new implementing code (that Google wrote) designed to operate within that new environment. Some of the amici refer to what Google did as "reimplementation," defined as the "building of a system ... that repurposes the same words and syntaxes" of an existing system—in this case so that programmers who had learned an existing system could put their basic skills to use in a new one. Brief for R Street Institute et al. as Amici Curiae 2.

The record here demonstrates the numerous ways in which reimplementing an interface can further the development of computer programs. The jury heard that shared interfaces are necessary for different programs to speak to each other. App. 125 ("We have to agree on the APIs so that the application I write to show a movie runs on your device"). It heard that the reimplementation of interfaces is necessary  if programmers are to be able to use their acquired skills. Id. , at 191 ("If the API labels change, then either the software wouldn't continue to work anymore or the developer ... would have to learn a whole new language to be able to use these API labels"). It heard that the reuse of APIs is common in the industry. Id ., at 115, 155, 663. It heard that Sun itself had used pre-existing interfaces in creating Java. Id. , at 664. And it heard that Sun executives thought that widespread use of the Java programming language, including use on a smartphone platform, would benefit the company. Id. , at 130–133.

Amici supporting Google have summarized these same points—points that witnesses explained to the jury. See, e.g. , Brief for Copyright Scholars as Amici Curiae 25 ("[T]he portions of Java SE that Google reimplemented may have helped preserve consistency of use within the larger Java developer community"); Brief for Microsoft Corporation as Amicus Curiae 22 ("[A]llowing reasonable fair use of functional code enables innovation that creates new opportunities for the whole market to grow"); Brief for 83 Computer Scientists as Amici Curiae 20 ("Reimplementing interfaces fueled widespread adoption of popular programming languages" (emphasis deleted)); Brief for R Street Institute et al. as Amici Curiae 15–20 (describing Oracle's reimplementation of other APIs); see also Brief for American Antitrust Institute as Amicus Curiae 7 ("Copyright on largely functional elements of software that [have] become an industry standard gives a copyright holder anti-competitive power").

These and related facts convince us that the "purpose and character" of Google's copying was transformative—to the point where this factor too weighs in favor of fair use.

There are two other considerations that are often taken up under the first factor: commerciality and good faith. The text of § 107 includes various noncommercial uses, such as teaching and scholarship, as paradigmatic examples of privileged copying. There is no doubt that a finding that copying was not commercial in nature tips the scales in favor of fair use. But the inverse is not necessarily true, as many common fair uses are indisputably commercial. For instance, the text of § 107 includes examples like "news reporting," which is often done for commercial profit. So even though Google's use was a commercial endeavor—a fact no party disputed, see 886 F.3d at 1197 —that is not dispositive of the first factor, particularly in light of the inherently transformative role that the reimplementation played in the new Android system.

As for bad faith, our decision in Campbell expressed some skepticism about whether bad faith has any role in a fair use analysis. 510 U.S., at 585, n. 18, 114 S.Ct. 1164. We find this skepticism justifiable, as "[c]opyright is not a privilege reserved for the well-behaved." Leval 1126. We have no occasion here to say whether good faith is as a general matter a helpful inquiry. We simply note that given the strength of the other factors pointing toward fair use and the jury finding in Google's favor on hotly contested evidence, that factbound consideration is not determinative in this context.

C. "The Amount and Substantiality of the Portion Used"

If one considers the declaring code in isolation, the quantitative amount of what Google copied was large. Google copied the declaring code for 37 packages of the Sun Java API, totaling approximately 11,500 lines of code. Those lines of code amount to virtually all the declaring code needed to call up hundreds of different tasks. On the other hand, if one considers  the entire set of software material in the Sun Java API, the quantitative amount copied was small. The total set of Sun Java API computer code, including implementing code, amounted to 2.86 million lines, of which the copied 11,500 lines were only 0.4 percent. App. 212.

The question here is whether those 11,500 lines of code should be viewed in isolation or as one part of the considerably greater whole. We have said that even a small amount of copying may fall outside of the scope of fair use where the excerpt copied consists of the " ‘heart’ " of the original work's creative expression. Harper & Row , 471 U.S., at 564–565, 105 S.Ct. 2218. On the other hand, copying a larger amount of material can fall within the scope of fair use where the material copied captures little of the material's creative expression or is central to a copier's valid purpose. See, e.g. , Campbell , 510 U.S., at 588, 114 S.Ct. 1164 ; New Era Publications Int'l, ApS v. Carol Publishing Group , 904 F.2d 152, 158 (C.A.2 1990). If a defendant had copied one sentence in a novel, that copying may well be insubstantial. But if that single sentence set forth one of the world's shortest short stories—"When he awoke, the dinosaur was still there."—the question looks much different, as the copied material constitutes a small part of the novel but the entire short story. See A. Monterroso, El Dinosaurio, in Complete Works & Other Stories 42 (E. Grossman transl. 1995). (In the original Spanish, the story reads: "Cuando despertó, el dinosaurio todavía estaba allí.")

Several features of Google's copying suggest that the better way to look at the numbers is to take into account the several million lines that Google did not copy. For one thing, the Sun Java API is inseparably bound to those task-implementing lines. Its purpose is to call them up. For another, Google copied those lines not because of their creativity, their beauty, or even (in a sense) because of their purpose. It copied them because programmers had already learned to work with the Sun Java API's system, and it would have been difficult, perhaps prohibitively so, to attract programmers to build its Android smartphone system without them. Further, Google's basic purpose was to create a different task-related system for a different computing environment (smartphones) and to create a platform—the Android platform—that would help achieve and popularize that objective. The "substantiality" factor will generally weigh in favor of fair use where, as here, the amount of copying was tethered to a valid, and transformative, purpose. Supra , at 1203 – 1204; see Campbell , 510 U.S., at 586–587, 114 S.Ct. 1164 (explaining that the factor three "enquiry will harken back to the first of the statutory factors, for ... the extent of permissible copying varies with the purpose and character of the use").

We do not agree with the Federal Circuit's conclusion that Google could have achieved its Java-compatibility objective by copying only the 170 lines of code that are "necessary to write in the Java language." 886 F.3d at 1206. In our view, that conclusion views Google's legitimate objectives too narrowly. Google's basic objective was not simply to make the Java programming language usable on its Android systems. It was to permit programmers to make use of their knowledge and experience using the Sun Java API when they wrote new programs for smartphones with the Android platform. In principle, Google might have created its own, different system of declaring code. But the jury could have found that its doing so would not have achieved that basic objective. In a sense, the declaring code was the key that it needed to unlock the programmers’ creative energies. And it needed those energies  to create and to improve its own innovative Android systems.

We consequently believe that this "substantiality" factor weighs in favor of fair use.

D. Market Effects

The fourth statutory factor focuses upon the "effect" of the copying in the "market for or value of the copyrighted work." 17 U.S.C. § 107(4). Consideration of this factor, at least where computer programs are at issue, can prove more complex than at first it may seem. It can require a court to consider the amount of money that the copyright owner might lose. As we pointed out in Campbell , "verbatim copying of the original in its entirety for commercial purposes" may well produce a market substitute for an author's work. 510 U.S., at 591, 114 S.Ct. 1164. Making a film of an author's book may similarly mean potential or presumed losses to the copyright owner. Those losses normally conflict with copyright's basic objective: providing authors with exclusive rights that will spur creative expression.

But a potential loss of revenue is not the whole story. We here must consider not just the amount but also the source of the loss. As we pointed out in Campbell , a "lethal parody, like a scathing theatre review," may "kil[l] demand for the original." Id. , at 591–592, 114 S.Ct. 1164. Yet this kind of harm, even if directly translated into foregone dollars, is not "cognizable under the Copyright Act." Id., at 592, 114 S.Ct. 1164.

Further, we must take into account the public benefits the copying will likely produce. Are those benefits, for example, related to copyright's concern for the creative production of new expression? Are they comparatively important, or unimportant, when compared with dollar amounts likely lost (taking into account as well the nature of the source of the loss)? Cf. MCA, INC. v. Wilson , 677 F.2d 180, 183 (C.A.2 1981) (calling for a balancing of public benefits and losses to copyright owner under this factor).

We do not say that these questions are always relevant to the application of fair use, not even in the world of computer programs. Nor do we say that these questions are the only questions a court might ask. But we do find them relevant here in helping to determine the likely market effects of Google's reimplementation.

As to the likely amount of loss, the jury could have found that Android did not harm the actual or potential markets for Java SE. And it could have found that Sun itself (now Oracle) would not have been able to enter those markets successfully whether Google did, or did not, copy a part of its API. First, evidence at trial demonstrated that, regardless of Android's smartphone technology, Sun was poorly positioned to succeed in the mobile phone market. The jury heard ample evidence that Java SE's primary market was laptops and desktops. App. 99, 200. It also heard that Sun's many efforts to move into the mobile phone market had proved unsuccessful. Id., at 135, 235, 671. As far back as 2006, prior to Android's release, Sun's executives projected declining revenue for mobile phones because of emerging smartphone technology. Id., at 240. When Sun's former CEO was asked directly whether Sun's failure to build a smartphone was attributable to Google's development of Android, he answered that it was not. Id., at 650. Given the evidence showing that Sun was beset by business challenges in developing a mobile phone product, the jury was entitled to agree with that assessment.

Second, the jury was repeatedly told that devices using Google's Android platform were different in kind from those  that licensed Sun's technology. For instance, witnesses explained that the broader industry distinguished between smartphones and simpler "feature phones." Id., at 237. As to the specific devices that used Sun-created software, the jury heard that one of these phones lacked a touchscreen, id. , at 359–360, while another did not have a QWERTY keyboard, id. , at 672. For other mobile devices, the evidence showed that simpler products, like the Kindle, used Java software, id. , at 396, while more advanced technology, like the Kindle Fire, were built on the Android operating system, id. , at 206. This record evidence demonstrates that, rather than just "repurposing [Sun's] code from larger computers to smaller computers," post , at 16, Google's Android platform was part of a distinct (and more advanced) market than Java software.

Looking to these important differences, Google's economic expert told the jury that Android was not a market substitute for Java's software. As he explained, "the two products are on very different devices," and the Android platform, which offers "an entire mobile operating stack," is a "very different typ[e] of produc[t]" than Java SE, which is "just an applications programming framework." App. 256; see also id. , at 172–174. Taken together, the evidence showed that Sun's mobile phone business was declining, while the market increasingly demanded a new form of smartphone technology that Sun was never able to offer.

Finally, the jury also heard evidence that Sun foresaw a benefit from the broader use of the Java programming language in a new platform like Android, as it would further expand the network of Java-trained programmers. Id. , at 131–133; see also id. , at 153 ("Once an API starts getting reimplemented, you know it has succeeded"). In other words, the jury could have understood Android and Java SE as operating in two distinct markets. And because there are two markets at issue, programmers learning the Java language to work in one market (smartphones) are then able to bring those talents to the other market (laptops). See 4 Nimmer on Copyright § 13.05[A][4] (explaining that factor four asks what the impact of "widespread conduct of the sort engaged in by the defendant" would be on the market for the present work).

Oracle presented evidence to the contrary. Indeed, the Federal Circuit held that the "market effects" factor militated against fair use in part because Sun had tried to enter the Android market. 886 F.3d at 1209 (Sun sought licensing agreement with Google). But those licensing negotiations concerned much more than 37 packages of declaring code, covering topics like "the implementation of [Java's] code" and "branding and cooperation" between the firms. App. 245; see also 4 Nimmer on Copyright § 13.05[A][4] (cautioning against the "danger of circularity posed" by considering unrealized licensing opportunities because "it is a given in every fair use case that plaintiff suffers a loss of a potential market if that potential is defined as the theoretical market for licensing the very use at bar"). In any event, the jury's fair use determination means that neither Sun's effort to obtain a license nor Oracle's conflicting evidence can overcome evidence indicating that, at a minimum, it would have been difficult for Sun to enter the smartphone market, even had Google not used portions of the Sun Java API.

On the other hand, Google's copying helped Google make a vast amount of money from its Android platform. And enforcement of the Sun Java API copyright might give Oracle a significant share of these funds. It is important, however, to consider why and how Oracle might have become  entitled to this money. When a new interface, like an API or a spreadsheet program, first comes on the market, it may attract new users because of its expressive qualities, such as a better visual screen or because of its superior functionality. As time passes, however, it may be valuable for a different reason, namely, because users, including programmers, are just used to it. They have already learned how to work with it. See Lotus Development Corp. , 49 F.3d at 821 (BOUDIN, J., concurring).

The record here is filled with evidence that this factor accounts for Google's desire to use the Sun Java API. See, e.g., App. 169–170, 213–214. This source of Android's profitability has much to do with third parties’ (say, programmers’) investment in Sun Java programs. It has correspondingly less to do with Sun's investment in creating the Sun Java API. We have no reason to believe that the Copy-right Act seeks to protect third parties’ investment in learning how to operate a created work. Cf. Campbell , 510 U.S., at 591–592, 114 S.Ct. 1164 (discussing the need to identify those harms that are "cognizable under the Copyright Act").

Finally, given programmers’ investment in learning the Sun Java API, to allow enforcement of Oracle's copyright here would risk harm to the public. Given the costs and difficulties of producing alternative APIs with similar appeal to programmers, allowing enforcement here would make of the Sun Java API's declaring code a lock limiting the future creativity of new programs. Oracle alone would hold the key. The result could well prove highly profitable to Oracle (or other firms holding a copyright in computer interfaces). But those profits could well flow from creative improvements, new applications, and new uses developed by users who have learned to work with that interface. To that extent, the lock would interfere with, not further, copyright's basic creativity objectives. See Connectix Corp. , 203 F.3d at 607 ; see also Sega Enterprises , 977 F.2d at 1523–1524 ("An attempt to monopolize the market by making it impossible for others to compete runs counter to the statutory purpose of promoting creative expression"); Lexmark Int'l , 387 F.3d at 544 (noting that where a subsequent user copied a computer program to foster functionality, it was not exploiting the programs "commercial value as a copyrighted work " (emphasis in original)). After all, "copyright supplies the economic incentive to [both] create and disseminate ideas," Harper & Row , 471 U.S., at 558, 105 S.Ct. 2218, and the reimplementation of a user interface allows creative new computer code to more easily enter the market.

The uncertain nature of Sun's ability to compete in Android's market place, the sources of its lost revenue, and the risk of creativity-related harms to the public, when taken together, convince that this fourth factor—market effects—also weighs in favor of fair use.

* * *

The fact that computer programs are primarily functional makes it difficult to apply traditional copyright concepts in that technological world. See Lotus Development Corp. , 49 F.3d at 820 (BOUDIN, J., concurring). In doing so here, we have not changed the nature of those concepts. We do not overturn or modify our earlier cases involving fair use—cases, for example, that involve "knockoff " products, journalistic writings, and parodies. Rather, we here recognize that application of a copyright doctrine such as fair use has long proved a cooperative effort of Legislatures and courts, and that Congress, in our view, intended that it so continue. As such, we have looked to the principles set forth in the fair use statute, § 107, and set forth in  our earlier cases, and applied them to this different kind of copyrighted work.

We reach the conclusion that in this case, where Google reimplemented a user interface, taking only what was needed to allow users to put their accrued talents to work in a new and transformative program, Google's copying of the Sun Java API was a fair use of that material as a matter of law. The Federal Circuit's contrary judgment is reversed, and the case is remanded for further proceedings in conformity with this opinion.

It is so ordered.

Justice BARRETT took no part in the consideration or decision of this case.

APPENDIX A

Computer System Diagram

Some readers might find it helpful to start with an explanation of what a "software platform" is. Put simply, a software platform collects all of the software tools that a programmer may need to build computer programs. The Android platform, for instance, includes an "operating system," "core libraries," and a "virtual machine," among other tools. App. 197–198.

The diagram below illustrates the general features of a standard computer system, with the dotted line reflecting the division between a computer's hardware and its software. (It is not intended to reflect any specific technology at issue in this case.)

? J. Garrido & R. Schlesinger, Principles of Modern Operating Systems 8 (2008) ("Figure 1.4. An External View of a Computer System").

APPENDIX B

Sun Java API Diagram

?

This image depicts the connection between the three parts of the Sun Java API technology at issue, using the District Court's example. Oracle , 872 F.Supp.2d at 980–981. The programmer enters a method call to invoke a task from within the API (the solid arrow). The precise symbols in the method call correspond to a single task, which is located within a particular class. That class is located within a particular package. All of the lines of code that provide that organization and name the methods, classes, and packages are "declaring code." For each method, the declaring code is associated with particular lines of implementing code (the dotted arrow). It is that implementing code (which Google wrote for its Android API) that actually instructs the computer in the programmer's application.

Justice THOMAS, with whom Justice ALITO joins, dissenting.

Oracle spent years developing a programming library that successfully attracted software developers, thus enhancing the value of Oracle's products. Google sought a license to use the library in Android, the operating system it was developing for mobile phones. But when the companies could not agree on terms, Google simply copied verbatim 11,500 lines of code from the library. As a result, it erased 97.5% of  the value of Oracle's partnership with Amazon, made tens of billions of dollars, and established its position as the owner of the largest mobile operating system in the world. Despite this, the majority holds that this copying was fair use.

The Court reaches this unlikely result in large part because it bypasses the antecedent question clearly before us: Is the software code at issue here protected by the Copyright Act? The majority purports to assume, without deciding, that the code is protected. But its fair-use analysis is wholly inconsistent with the substantial protection Congress gave to computer code. By skipping over the copyrightability question, the majority disregards half the relevant statutory text and distorts its fair-use analysis. Properly considering that statutory text, Oracle's code at issue here is copyrightable, and Google's use of that copyrighted code was anything but fair.

I

In the 1990s, Oracle created a programming language called Java. Like many programming languages, Java allows developers to prewrite small subprograms called "methods." Methods form the building blocks of more complex programs. This process is not unlike what legislatures do with statutes. To save space and time, legislatures define terms and then use those definitions as a shorthand. For example, the legal definition for "refugee" is more than 300 words long. 8 U.S.C. § 1101(42). Rather than repeat all those words every time they are relevant, the U. S. Code encapsulates them all with a single term that it then inserts into each relevant section. Java methods work similarly. Once a method has been defined, a developer need only type a few characters (the method name and relevant inputs) to invoke everything contained in the subprogram. A programmer familiar with prewritten methods can string many of them together to quickly develop complicated programs without having to write from scratch all the basic subprograms.

To create Java methods, developers use two kinds of code. The first, "declaring code," names the method, defines what information it can process, and defines what kind of data it can output. It is like the defined term in a statute. The second, "implementing code," includes the step-by-step instructions that make those methods run. It is like the detailed definition in a statute.

Oracle's declaring code was central to its business model. Oracle profited financially by encouraging developers to create programs written in Java and then charging manufacturers a fee to embed in their devices the Java software platform needed to run those programs. To this end, Oracle created a work called Java 2 Platform, Standard Edition, which included a highly organized library containing about 30,000 methods. Oracle gave developers free access to these methods to encourage them to write programs for the Java platform. In return, developers were required to make their programs compatible with the Java platform on any device. Developers  were encouraged to make improvements to the platform, but they were required to release beneficial modifications to the public. If a company wanted to customize the platform and keep those customizations secret for business purposes, it had to pay for a separate license.

By 2005, many companies were racing to develop operating systems for what would become modern smartphones. Oracle's strategy had successfully encouraged millions of programmers to learn Java. As a result, Java software platforms were in the vast majority of mobile phones. Google wanted to attract those programmers to Android by including in Android the declaring code with which they were now familiar. But the founder of Android, Andrew Rubin, understood that the declaring code was copyrighted, so Google sought a custom license from Oracle. At least four times between 2005 and 2006, the two companies attempted to negotiate a license, but they were unsuccessful, in part because of "trust issues." App. 657.

When those negotiations broke down, Google simply decided to use Oracle's code anyway. Instead of creating its own declaring code—as Apple and Microsoft chose to do—Google copied verbatim 11,500 lines of Oracle's declaring code and arranged that code exactly as Oracle had done. It then advertised Android to device manufacturers as containing "Core Java Libraries." Id ., at 600. Oracle predictably responded by suing Google for copyright infringement. The Federal Circuit ruled that Oracle's declaring code is copyrightable and that Google's copying of it was not fair use.

II

The Court wrongly sidesteps the principal question that we were asked to answer: Is declaring code protected by copyright? I would hold that it is.

Computer code occupies a unique space in intellectual property. Copyright law generally protects works of authorship. Patent law generally protects inventions or discoveries. A library of code straddles these two categories. It is highly functional like an invention; yet as a writing, it is also a work of authorship. Faced with something that could fit in either space, Congress chose copyright, and it included declaring code in that protection.

The Copyright Act expressly protects computer code. It recognizes that a "computer program" is protected by copyright. See 17 U.S.C. §§ 109(b), 117, 506(a). And it defines " ‘computer program’ " as "a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result." § 101. That definition clearly covers declaring code—sets of statements that indirectly perform computer functions by triggering prewritten implementing code.

Even without that express language, declaring code would satisfy the general test for copyrightability. "Copyright protection subsists ... in original works of authorship fixed in any tangible medium of expression." § 102(a). "Works of authorship include ... literary works," which are "works ... expressed in words, numbers, or other verbal or numerical symbols." §§ 101, 102(a). And a work is "original" if it is "independently created by the author" and "possesses at least some minimal degree of creativity." Feist Publications, Inc. v. Rural Telephone Service Co. , 499 U.S. 340, 345, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). The lines of declaring code in the Java platform readily satisfy this "extremely low" threshold. Ibid. First, they are expressed in "words, numbers, or other verbal or numerical symbols" and are thus works of authorship. § 101. Second, as Google concedes, the lines of declaring  code are original because Oracle could have created them any number of ways.

Google contends that declaring code is a "method of operation" and thus excluded from protection by § 102(b). That subsection excludes from copyright protection "any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied." This provision codifies the "idea/expression dichotomy" that copyright protection covers only the "the author's expression" of an idea, not the idea itself. Golan v. Holder , 565 U.S. 302, 328, 132 S.Ct. 873, 181 L.Ed.2d 835 (2012). A property right in the idea itself "can only be secured, if it can be secured at all, by letters-patent." Baker v. Selden , 101 U.S. 99, 105, 25 L.Ed. 841 (1880). Thus, for example, a "method of book-keeping" is not protected by copyright, but the expression describing that accounting method is. Id. , at 101–102. So too, a person who writes a book inventing the idea of declaring code has a copyright protection in the expression in the book, but not in the idea of declaring code itself. Google acknowledges that implementing code is protected by the Copyright Act, but it contends that declaring code is much more functional and thus is a "method of operation" outside the scope of protection.

That argument fails. As the majority correctly recognizes, declaring code and implementing code are "inextricably bound" together. Ante , at 1201. Declaring code defines the scope of a set of implementing code and gives a programmer a way to use it by shortcut. Because declaring code incorporates implementing code, it has no function on its own. Implementing code is similar. Absent declaring code, developers would have to write every program from scratch, making complex programs prohibitively time consuming to create. The functionality of both declaring code and implementing code will thus typically rise and fall together.

Google's argument also cannot account for Congress’ decision to define protected computer code as "a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result." § 101 (emphasis added). Hence, Congress rejected any categorical distinction between declaring and implementing code. Implementing code orders a computer operation directly. Declaring code does so indirectly by incorporating implementing code. When faced with general language barring protection for "methods of operation" and specific language protecting declaring code, the " ‘specific governs the general.’ " RadLAX Gateway Hotel, LLC v. Amalgamated Bank , 566 U.S. 639, 645, 132 S.Ct. 2065, 182 L.Ed.2d 967 (2012).

This context makes clear that the phrase "method of operation" in § 102(b) does not remove protection from declaring code simply because it is functional. That interpretation does not, however, render "method of operation" meaningless. It is "given more precise content by the neighboring words with which it is associated." United States v. Williams , 553 U.S. 285, 294, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). Other terms in the same subsection such as "idea," "principle," and "concept" suggest that "method of operation" covers the functions and ideas implemented by computer code—such as math functions, accounting methods, or the idea of declaring code—not the specific expression Oracle created. Oracle cannot copyright the idea of using declaring code, but it can copyright the specific expression of that idea found in its library.

Google also contends that declaring code is not copyrightable because the "merger doctrine" bars copyright protection when  there is only one way to express an idea. That argument fails for the same reasons Google's § 102(b) argument fails. Even if the doctrine exists, Google admits that it is merely an application of § 102(b). And, in any event, there may have been only one way for Google to copy the lines of declaring code, but there were innumerable ways for Oracle to write them. Certainly, Apple and Microsoft managed to create their own declaring code.

III

The Court inexplicably declines to address copyrightability. Its sole stated reason is that "technological, economic, and business-related circumstances" are "rapidly changing." Ante , at 1197 – 1198. That, of course, has been a constant where computers are concerned.

Rather than address this principal question, the Court simply assumes that declaring code is protected and then concludes that every fair-use factor favors Google. I agree with the majority that Congress did not "shiel[d] computer programs from the ordinary application" of fair use. Ante, at 1199. But the majority's application of fair use is far from ordinary. By skipping copyrightability, the majority gets the methodology backward, causing the Court to sidestep a key conclusion that ineluctably affects the fair-use analysis: Congress rejected categorical distinctions between declaring and implementing code. But the majority creates just such a distinction. The result of this distorting analysis is an opinion that makes it difficult to imagine any circumstance in which declaring code will remain protected by copyright.

I agree with the majority that, under our precedent, fair use is a mixed question of fact and law and that questions of law predominate. Because the jury issued a finding of fair use in favor of Google, we must construe all factual disputes and inferences in Google's favor and ask whether the evidence was sufficient as a matter of law to support the jury's verdict. See Fed. Rule Civ. Proc. 50(b). But whether a statutory fair-use factor favors one side or the other is a legal question reviewed de novo . Congress has established four statutory fair-use factors for courts to weigh. Three decisively favor Oracle. And even assuming that the remaining factor favors Google, that factor, without more, cannot legally establish fair use in this context.

The majority holds otherwise—concluding that every factor favors Google—by relying, in large part, on a distinction it draws between declaring and implementing code, a distinction that the statute rejects. Tellingly, the majority evaluates  the factors neither in sequential order nor in order of importance (at least two factors are more important under our precedent ). Instead, it starts with the second factor: the nature of the copyrighted work. It proceeds in this manner in order to create a distinction between declaring and implementing code that renders the former less worthy of protection than the latter. Because the majority's mistaken analysis rests so heavily on this factor, I begin with it as well.

A. The Nature of the Copyrighted Work

This factor requires courts to assess the level of creativity or functionality in the original work. It generally favors fair use when a copyrighted work is more "informational or functional" than "creative." 4 M. Nimmer & D. Nimmer, Copyright § 13.05[A][2][a] (2019). Because code is predominantly functional, this factor will often favor copying when the original work is computer code. But because Congress determined that declaring and implementing code are copyrightable, this factor alone cannot support a finding of fair use.

The majority, however, uses this factor to create a distinction between declaring and implementing code that in effect removes copyright protection from declaring code. It concludes that, unlike implementing code, declaring code is far "from the core of copyright" because it becomes valuable only when third parties (computer programmers) value it and because it is "inherently bound together with uncopyrightable ideas." Ante , at 1202 – 1203.

Congress, however, rejected this sort of categorical distinction that would make declaring code less worthy of protection. The Copyright Act protects code that operates "in a computer in order to bring about a certain result" both "directly" (implementing code) and "indirectly" (declaring code). § 101. And if anything, declaring code is closer to the "core of copyright." Ante , at 1202 – 1203. Developers cannot even see implementing code. Oracle Am., Inc. v. Google Inc. , 2016 WL 3181206, *4 (ND Cal., June 8, 2016) ; see also ante , at 1201 – 1202 (declaring code is "user-centered"). Implementing code thus conveys no expression to developers. Declaring code, in contrast, is user facing. It must be designed and organized in a way that is intuitive and understandable to developers so that they can invoke it.

Even setting those concerns aside, the majority's distinction is untenable. True, declaring code is "inherently bound together with uncopyrightable ideas." Ante, at 1201 – 1203. Is anything not? Books are inherently bound with uncopyrightable ideas—the use of chapters, having a plot, or including dialogue or footnotes. This does not place books far "from the core of copyright." And implementing code, which the majority concedes is copyrightable, is inherently bound up with "the division of computing tasks" that cannot be copyrighted. Ante , at 1201. We have not discounted  a work of authorship simply because it is associated with noncopyrightable ideas. While ideas cannot be copyrighted, expressions of those ideas can. Golan , 565 U.S., at 328, 132 S.Ct. 873.

Similarly, it makes no difference that the value of declaring code depends on how much time third parties invest in learning it. Many other copyrighted works depend on the same. A Broadway musical script needs actors and singers to invest time learning and rehearsing it. But a theater cannot copy a script—the rights to which are held by a smaller theater—simply because it wants to entice actors to switch theaters and because copying the script is more efficient than requiring the actors to learn a new one.

What the majority says is true of declaring code is no less true of implementing code. Declaring code is how programmers access prewritten implementing code. The value of that implementing code thus is directly proportional to how much programmers value the associated declaring code. The majority correctly recognizes that declaring code "is inextricably bound up with implementing code," ante , at 1201 – 1202, but it overlooks the implications of its own conclusion.

Only after wrongly concluding that the nature of declaring code makes that code generally unworthy of protection does the Court move on to consider the other factors. This opening mistake taints the Court's entire analysis.

B. Market Effects

"[U]ndoubtedly the single most important element of fair use" is the effect of Google's copying " ‘upon the potential market for or value of [Oracle's] copyrighted work.’ " Harper & Row, Publishers, Inc. v. Nation Enterprises , 471 U.S. 539, 566, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). As the Federal Circuit correctly determined, "evidence of actual and potential harm stemming from Google's copying was ‘overwhelming.’ " 886 F.3d 1179, 1209 (2018). By copying Oracle's code to develop and release Android, Google ruined Oracle's potential market in at least two ways.

First, Google eliminated the reason manufacturers were willing to pay to install the Java platform. Google's business model differed from Oracle's. While Oracle earned revenue by charging device manufacturers to install the Java platform, Google obtained revenue primarily through ad sales. Its strategy was to release Android to device manufacturers for free and then use Android as a vehicle to collect data on consumers and deliver behavioral ads. With a free product available that included much of Oracle's code (and thus with similar programming potential), device manufacturers no longer saw much reason to pay to embed the Java platform.

For example, before Google released Android, Amazon paid for a license to embed the Java platform in Kindle devices. But after Google released Android, Amazon used the cost-free availability of Android to negotiate a 97.5% discount on its license fee with Oracle. Evidence at trial similarly showed that right after Google released Android, Samsung's contract with Oracle dropped from $40 million to about $1 million. Google contests none of this except to say that Amazon used a different Java platform, Java Micro Edition instead of Java Standard Edition. That difference is inconsequential because the former was simply a smaller subset of the latter. Google copied code found in both platforms. The majority does not dispute—or even mention—this enormous harm.

Second, Google interfered with opportunities for Oracle to license the Java platform  to developers of smartphone operating systems. Before Google copied Oracle's code, nearly every mobile phone on the market contained the Java platform. Oracle's code was extraordinarily valuable to anybody who wanted to develop smartphones, which explains why Google tried no fewer than four times to license it. The majority's remark that Google also sought other licenses from Oracle, ante , at 1207 – 1208, does not change this central fact. Both parties agreed that Oracle could enter Google's current market by licensing its declaring code. But by copying the code and releasing Android, Google eliminated Oracle's opportunity to license its code for that use.

The majority writes off this harm by saying that the jury could have found that Oracle might not have been able to enter the modern smartphone market successfully. Ante , at 1206 – 1207. But whether Oracle could itself enter that market is only half the picture. We look at not only the potential market "that creators of original works would in general develop" but also those potential markets the copyright holder might "license others to develop." Campbell v. Acuff-Rose Music, Inc. , 510 U.S. 569, 592, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994). A book author need not be able to personally convert a book into a film so long as he can license someone else to do so. That Oracle could have licensed its code for use in Android is undisputed.

Unable to seriously dispute that Google's actions had a disastrous effect on Oracle's potential market, the majority changes course and asserts that enforcing copyright protection could harm the public by giving Oracle the power to "limi[t] the future creativity" of programs on Android. Ante , at 1208. But this case concerns only versions of Android released through November 2014. Order in No. 3:10–cv–3561 (ND Cal., Feb. 5, 2016), Doc. 1479, p. 2 (identifying versions through Android Lollipop 5.0). Google has released six major versions since then. Only about 7.7% of active Android devices still run the versions at issue. The majority's concern about a lock-in effect might carry more weight if this suit concerned versions of Android widely in use or that will be widely in use. It makes little sense in a suit about versions that are close to obsolete.

The majority's concern about a lock-in effect also is speculation belied by history. First, Oracle never had lock-in power. The majority (again) overlooks that Apple and Microsoft created mobile operating systems without using Oracle's declaring code. Second, Oracle always made its declaring code freely available to programmers. There is little reason to suspect Oracle might harm programmers by stopping now. And third, the majority simply assumes that the jury, in a future suit over current Android versions, would give Oracle control of Android instead of just awarding damages or perpetual royalties.

If the majority is going to speculate about what Oracle might do, it at least should consider what Google has done. The majority expresses concern that Oracle might abuse its copyright protection (on outdated Android versions) and " ‘attempt to monopolize the market.’ " Ante , at 1208 – 1209. But it is Google that recently  was fined a record $5 billion for abusing Android to violate antitrust laws. Case AT.40099, Google Android , July 18, 2018 (Eur. Comm'n-Competition); European Comm'n Press Release, Commission Fines Google €4.34 Billion for Illegal Practices Regarding Android Mobile Devices to Strengthen Dominance of Google's Search Engine, July 18, 2018. Google controls the most widely used mobile operating system in the world. And if companies may now freely copy libraries of declaring code whenever it is more convenient than writing their own, others will likely hesitate to spend the resources Oracle did to create intuitive, well-organized libraries that attract programmers and could compete with Android. If the majority is worried about monopolization, it ought to consider whether Google is the greater threat.

By copying Oracle's work, Google decimated Oracle's market and created a mobile operating system now in over 2.5 billion actively used devices, earning tens of billions of dollars every year. If these effects on Oracle's potential market favor Google, something is very wrong with our fair-use analysis.

C. The Purpose and Character of the Use

The second-most important factor—"the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes," § 107(1) —requires us to consider whether use was "commercial" and whether it was "transformative." Campbell , 510 U.S., at 578–579, 114 S.Ct. 1164. Both aspects heavily favor Oracle.

Begin with the overwhelming commercial nature of Google's copying. In 2015 alone, the year before the fair-use trial, Google earned $18 billion from Android. That number has no doubt dramatically increased as Android has grown to dominate the global market share. On this scale, Google's use of Oracle's declaring code weighs heavily—if not decisively—against fair use.

The majority attempts to dismiss this overwhelming commercial use by noting that commercial use does "not necessarily" weigh against fair use. Ante , at 1204. True enough. Commercial use sometimes can be overcome by use that is sufficiently "transformative." Campbell , 510 U.S., at 579, 114 S.Ct. 1164. But "we cannot ignore [Google's] intended purpose of supplanting [Oracle's] commercially valuable" platform with its own. Harper , 471 U.S., at 562, 105 S.Ct. 2218 (emphasis in original). Even if we could, we have never found fair use for copying that reaches into the tens of billions of dollars and wrecks the copyright holder's market.

Regardless, Google fares no better on transformative use. A court generally cannot find fair use unless the copier's use is transformative. A work is "transformative"  if it "adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." Campbell , 510 U.S., at 579, 114 S.Ct. 1164. This question is "guided by the examples [of fair use] given in the preamble to § 107." Id. , at 578, 114 S.Ct. 1164. Those examples include: "criticism, comment, news reporting, teaching ..., scholarship, or research." § 107. Although these examples are not exclusive, they are illustrative, and Google's repurposing of Java code from larger computers to smaller computers resembles none of them. Google did not use Oracle's code to teach or reverse engineer a system to ensure compatibility. Instead, to "avoid the drudgery in working up something fresh," id ., at 580, 114 S.Ct. 1164, Google used the declaring code for the same exact purpose Oracle did. As the Federal Circuit correctly determined, "[t]here is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform." 886 F.3d at 1210.

The majority acknowledges that Google used the copied declaring code "for the same reason" Oracle did. Ante , at 1203. So, by turns, the majority transforms the definition of "transformative." Now, we are told, "transformative" simply means—at least for computer code—a use that will help others "create new products." Ibid; accord, ante , at 1203 (Google's copying "can further the development of computer programs").

That new definition eviscerates copyright. A movie studio that converts a book into a film without permission not only creates a new product (the film) but enables others to "create products"—film reviews, merchandise, YouTube highlight reels, late night television interviews, and the like. Nearly every computer program, once copied, can be used to create new products. Surely the majority would not say that an author can pirate the next version of Microsoft Word simply because he can use it to create new manuscripts.

Ultimately, the majority wrongly conflates transformative use with derivative use. To be transformative, a work must do something fundamentally different from the original. A work that simply serves the same purpose in a new context—which the majority concedes is true here—is derivative, not transformative. Congress made clear that Oracle holds "the exclusive rights ... to prepare derivative works." § 106(2). Rather than create a transformative product, Google "profit[ed] from exploitation of the copyrighted material without paying the customary price." Harper , 471 U.S., at 562, 105 S.Ct. 2218.

D. The Amount and Substantiality of the Portion Used

The statutory fair-use factors also instruct us to consider "the amount and substantiality of the portion used in relation to the copyrighted work as a whole." § 107(3). In general, the greater the amount of use, the more likely the copying is unfair. Ibid. But even if the copier takes only a small amount, copying the " ‘heart’ " or "focal points" of a work weighs against fair use, Harper , 471 U.S., at 565–566, 105 S.Ct. 2218, unless " ‘no more was taken than necessary’ " for the copier to achieve transformative use, Campbell , 510 U.S., at 589, 114 S.Ct. 1164. Google does not dispute the Federal Circuit's conclusion that it copied the heart or focal points of Oracle's work. 886 F.3d at 1207. The declaring code is what attracted programmers to the Java platform and why Google was so interested in that code. And Google copied that code "verbatim," which weighs against fair use. Harper , 471 U.S., at 565, 105 S.Ct. 2218. The majority does not disagree. Instead, it concludes that Google took no more than necessary to create new products. That analysis fails because Google's use is not transformative. Campbell , 510 U.S., at 586, 114 S.Ct. 1164 (recognizing that this fourth factor "will harken back to the [purpose-and-character] statutory facto[r]"). This factor thus weighs against Google.

Even if Google's use were transformative, the majority is wrong to conclude that Google copied only a small portion of the original work. The majority points out that the 11,500 lines of declaring code—enough to fill about 600 pages in an appendix, Tr. of Oral Arg. 57—were just a fraction of the code in the Java platform. But the proper denominator is declaring code , not all code. A copied work is quantitatively substantial if it could "serve as a market substitute for the original" work or "potentially licensed derivatives" of that work. Campbell , 510 U.S., at 587, 114 S.Ct. 1164. The declaring code is what attracted programmers. And it is what made Android a "market substitute" for "potentially licensed derivatives" of Oracle's Java platform. Google's copying was both qualitatively and quantitatively substantial.

* * *

In sum, three of the four statutory fair-use factors weigh decidedly against Google. The nature of the copyrighted work—the sole factor possibly favoring Google—cannot by itself support a determination of fair use because holding otherwise would improperly override Congress’ determination that declaring code is copyrightable.

IV

The majority purports to save for another day the question whether declaring code is copyrightable. The only apparent reason for doing so is because the majority cannot square its fundamentally flawed fair-use analysis with a finding that declaring code is copyrightable. The majority has used fair use to eviscerate Congress’ considered policy judgment. I respectfully dissent.