UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

ANDREA BARTZ, CHARLES GRAEBER, and KIRK WALLACE JOHNSON, Plaintiffs, v. ANTHROPIC PBC, Defendant

ORDER ON FAIR USE

INTRODUCTION

An artificial intelligence firm downloaded for free millions of copyrighted books in digital form from pirate sites on the internet.  The firm also purchased copyrighted books (some overlapping with those acquired from the pirate sites), tore off the bindings, scanned every page, and stored them in digitized, searchable files.  All the foregoing was done to amass a central library of “all the books in the world” to retain “forever.”  From this central library, the AI firm selected various sets and subsets of digitized books to train various large language models under development to power its AI services.  Some of these books were written by plaintiff authors, who now sue for copyright infringement.  On summary judgment, the issue is the extent to which any of the uses of the works in question qualify as “fair uses” under Section 107 of the Copyright Act. 

STATEMENT

Defendant Anthropic PBC is an AI software firm founded by former OpenAI employees in January 2021.  Its core offering is an AI software service called Claude.  When a user prompts Claude with text, Claude quickly responds with text — mimicking human reading and writing.  Claude can do so because Anthropic trained Claude — or rather trained large language models or LLMs underlying various versions of Claude — using books and other texts selected from a central library Anthropic had assembled.  Claude was first released publicly in March 2023.  Seven successive versions of Claude have been released since.  Users may ask Claude some questions for free.  Demanding users and corporate clients pay to use Claude, generating over one billion dollars in annual revenue (Opp. Exh. 18).

Plaintiffs Andrea Bartz, Charles Graeber, and Kirk Wallace Johnson are authors of books that Anthropic copied from pirated and purchased sources.  Anthropic assembled these copies into a central library of its own, copied further various sets and subsets of those library copies to include in various “data mixes,” and used these mixes to train various LLMs.  Anthropic kept the library copies in place as a permanent, general-purpose resource even after deciding it would not use certain copies to train LLMs or would never use them again to do so.  All of Anthropic’s copying was without plaintiffs’ authorization. 

Author Bartz wrote four novels Anthropic copied and used:  The Lost Night: A Novel, The Herd, We Were Never Here, and The Spare Room.  Author Graeber wrote two non-fiction books likewise at issue:  The Good Nurse: A True Story of Medicine, Madness, and Murder, and The Breakthrough: Immunotherapy and the Race to Cure Cancer.  And, Author Johnson penned three non-fiction books also copied and used:  To Be A Friend Is Fatal: The Fight to Save the Iraqis America Left Behind, The Feather Thief: Beauty, Obsession, and the Natural History Heist of the Century, and The Fishermen and the Dragon: Fear, Greed, and a Fight for Justice on the Gulf Coast.  Plaintiffs Bartz Inc. and MJ + KJ Inc. are corporate entities that Author Bartz and Author Johnson respectively set up to market their works.  Between them, these five plaintiffs (“Authors”) own all the copyrights in the above-listed works. 

From the start, Anthropic “ha[d] many places from which” it could have purchased books, but it preferred to steal them to avoid “legal/practice/business slog,” as cofounder and chief executive officer Dario Amodei put it (see Opp. Exh. 27).  So, in January or February 2021, another Anthropic cofounder, Ben Mann, downloaded Books3, an online library of 196,640 books that he knew had been assembled from unauthorized copies of copyrighted books — that is, pirated.  Anthropic’s next pirated acquisitions involved downloading distributed, reshared copies of other pirate libraries.  In June 2021, Mann downloaded in this way at least five million copies of books from Library Genesis, or LibGen, which he knew had been pirated.  And, in July 2022, Anthropic likewise downloaded at least two million copies of books from the Pirate Library Mirror, or PiLiMi, which Anthropic knew had been pirated (Opp. Exh. 6 at 4; Opp. Expert Zhao ¶¶ 17–29; see Class Cert. (“CC”) Opp. Expert Iyyer ¶¶ 45–46).  Although what was downloaded and later duplicated from these sources was sometimes referred to as data or datasets, at bottom they contained full-text “ebooks or scans of books” saved in individual files in formats like .pdf, .txt, and .epub (see, e.g., Opp. Exh. 12 at -0391318).  For Books3, most filenames identified the book inside.  For LibGen and PiLiMi, Anthropic downloaded a separate catalog of bibliographic metadata for each collection, with fields like title, author, and ISBN (see, e.g., ibid.; Opp. Exh. 16 -0533972–73).  Anthropic thereby pirated over seven million copies of books, including copies of at least two works at issue for each Author.[FN1]

As Anthropic trained successive LLMs, it became convinced that using books was the most cost-effective means to achieve a world-class LLM.  During this time, however, Anthropic became “not so gung ho about” training on pirated books “for legal reasons” (Opp. Exh. 19).  It kept them anyway (e.g., Opp. Exh. 17 at 93–94; CC Opp. Exh. 35 at -0273474). 

To find a new way to get books, in February 2024, Anthropic hired the former head of partnerships for Google’s book-scanning project, Tom Turvey.  He was tasked with obtaining “all the books in the world” while still avoiding as much “legal/practice/business slog” as possible (Opp. Exhs. 21, 27).  So, in spring 2024, Turvey sent an email or two to major publishers to inquire into licensing books for training AI.  Had Turvey kept up those conversations, he might have reached agreements to license copies for AI training from publishers — just as another major technology company soon did with one major publisher (e.g., Opp. Expert Malackowski ¶¶ 50, 64).  But Turvey let those conversations wither

Instead, Turvey and his team emailed major book distributors and retailers about bulk-purchasing their print copies for the AI firm’s “research library” (Opp. Exh. 22 at 145; Opp. Exh. 31 at -035589).  Anthropic spent many millions of dollars to purchase millions of print books, often in used condition.  Then, its service providers stripped the books from their bindings, cut their pages to size, and scanned the books into digital form — discarding the paper originals.  Each print book resulted in a PDF copy containing images of the scanned pages with machine-readable text (including front and back cover scans for softcover books).  Anthropic created its own catalog of bibliographic metadata for the books it was acquiring.  It acquired copies of millions of books, including of all works at issue for all Authors.[FN2]

Anthropic may have copied portions of Authors’ books on other occasions, too — such as while copying book reviews, academic papers, internet blogposts, or the like for its central library.  And, Anthropic’s scanning service providers may have copied Authors’ print books along the way to delivering the final digital copies to Anthropic.  But neither side here specifically raises legal issues implicated by any such copies.  Nor will this order.

From all the above sources, Anthropic created a general “research library” or “generalized data area.”  What was this for?  As Turvey said, this was a “way of creating information that would be voluminous and that we would use for research,” or otherwise to “inform our — our products” (Opp. Exh. 22 at 145–46, 194).  The copies were kept in the original “version of the underlying” book files Anthropic had “obtained or created,” that is, pirated or scanned (Opp. Exh. 30 at 3, 4).  Anthropic planned to “store everything forever; we might separate out books into categories[, but t]here [wa]s no compelling reason to delete a book” — even if not used for training LLMs.  Over time, Anthropic invested in building more tools for searching its “general purpose” library and for accessing books or sets of books for further uses (see CC Br. Exh. 12 at -0144509; CC Reply Exh. 45 at -0365931–32, -0365939–42 (reviewing and seeking to improve “[w]hat [ ] researchers do today if they want to search for a book,” including improving bibliographic metadata and consolidating varied resources)).

One further use was training LLMs.  As a preliminary step towards training, engineers browsed books and bibliographic metadata to learn what languages the books were written in, what subjects they concerned, whether they were by famous authors or not, and so on — sometimes by “open[ing] any of the books” and sometimes using software.  From the library copies, engineers copied the sets or subsets of books they believed best for training and “iterate[d]” on those selections over time.  For instance, two different subsets of print-sourced books were included in “data mixes” for training two different LLMs.  Each was just a fraction of all the print-sourced books.  Similarly, different sets or “subsets” or “parts of” or “portions” of the collections sourced from Books3, LibGen, and PiLiMi were used to train different LLMs.  Anthropic analyzed the consequences of using more books, fewer books, different books.  The goal was to improve the “data mix“ to improve each LLM and, ultimately, Claude’s performance for paying customers.[FN3]

Over time, Anthropic came to value most highly for its data mixes books like the ones Authors had written, and it valued them because of the creative expressions they contained.  Claude’s customers wanted Claude to write as accurately and as compellingly as Authors.  So, it was best to train the LLMs underlying Claude on works just like the ones Authors had written, with well-curated facts, well-organized analyses, and captivating fictional narratives — above all with “good writing” of the kind “an editor would approve of” (Opp. Exh. 3 at -03433).  Anthropic could have trained its LLMs without using such books or any books at all.  That would have required spending more on, say, staff writers to create competing exemplars of good writing, engineers to revise bad exemplars into better ones, energy bills to power more rounds of training and fine-tuning, and so on.  Having canonical texts to draw upon helped (e.g., Opp. Expert Zhao ¶ 81).

Each work selected for training any given LLM was copied in four main ways — and in fact so many times that Anthropic admits it would be impractical even to estimate

First, each work selected was copied from the central library to create a working copy for the training set. 

Second, each work was cleaned to remove a small amount of lower-valued or repeating text (like headers, footers, or page numbers), with a “cleaned” copy resulting.  If the same book appeared twice, or if while looking across the entire provisional training set it became clear there was some other reason to cull a book or category, Anthropic had the capability to delete relevant copy(ies) from the set at this step (see CC Br. Expert Zhao ¶¶ 71–72). 

Third, each cleaned copy was translated into a “tokenized” copy.  Some words were “stemmed” or “lemmatized” into simpler forms (e.g., “studying” to “study”).  And, all characters were grouped into short sequences and translated into corresponding number sequences or “tokens” according to an Anthropic-made dictionary.  The resulting tokenized copies were then copied repeatedly during training.  By one account, this process involved the iterative, trial-and-error discovery of contingent statistical relationships between each word fragment and all other word fragments both within any work and across trillions of word fragments from other copied books, copied websites, and the like.  Other steps in training are not at issue here (id. ¶¶ 73–76; see Opp. Expert Zhao ¶ 38 & n.6). 

Fourth, each fully trained LLM itself retained “compressed” copies of the works it had trained upon, or so Authors contend and this order takes for granted.  In essence, each LLM’s mapping of contingent relationships was so complete it mapped or indeed simply “memorized” the works it trained upon almost verbatim.  So, if each completed LLM had been asked to recite works it had trained upon, it could have done so (e.g., Opp. Expert Zhao ¶ 74).  Further steps refining the LLM are not at issue here.

However, that was as far as the training copies propagated towards the outside world.  When each LLM was put into a public-facing version of Claude, it was complemented by other software that filtered user inputs to the LLM and filtered outputs from the LLM back to the user (id. ¶¶ 75–77).  As a result, Authors do not allege that any infringing copy of their works was or would ever be provided to users by the Claude service.  Yes, Claude could help less capable writers create works as well-written as Authors’ and competing in the same categories.  But Claude created no exact copy, nor any substantial knock-off.  Nothing traceable to Authors’ works.  Such allegations are simply not part of plaintiffs’ amended complaint, nor in our record. 

Neither side puts directly at issue any copies of any works that might have been used for the filtering software.  Nor will this order.

In sum, the copies of books pirated or purchased-and-destructively-scanned were placed into a central “research library” or “generalized data area,” sets or subsets were copied again to create training copies for data mixes, the training copies were successively copied to be cleaned, tokenized, and compressed into any given trained LLM, and once trained an LLM did not output through Claude to the public any further copies.  Finally, once Anthropic decided a copy of a pirated or scanned book in the library would not be used for training at all or ever again, Anthropic still retained that work as a “hard resource” for other uses or future uses.  At least one work from each Author was present in every phase described above. 

*  *  *

In August 2024, the three individual authors brought this putative class action complaining that Anthropic had infringed its federal copyrights by pirating copies for its library and by reproducing them to train its LLMs (Compl. ¶¶ 45–46, 71; see Amd. Compl. ¶¶ 47–48, 75).  In October 2024, a scheduling order required that any motion for class certification be brought by March 6, 2025 (Dkt. No. 49). 

The individual authors soon amended their complaint to include affiliated corporate entities as named plaintiffs, with consent.  And, Anthropic chose not to move to dismiss the amended complaint, as it earlier had planned (see Dkt. No. 37).  Instead, Anthropic moved to allow an early motion for summary judgment on fair use, even before class certification (Dkt. No. 88; see Feb. 25, 2025 Tr. 15).  Permission was granted. 

Anthropic now moves for summary judgment on fair use only.  Fair use is a legal question for the judge with underlying fact questions, if any, for the jury.  To prevail on summary judgment, Anthropic must rely on undisputed facts and/or factual inferences favoring the opposing side.  Anthropic thus bears the burdens of production and persuasion in this motion.  See Google LLC v. Oracle Am., Inc., 593 U.S. 1, 23–24 (2021); Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 547 n.21 (2023); Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 & n.20, 594 (1994); see also Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102–03 (9th Cir. 2000).

Notably, in its motion, Anthropic argues that pirating initial copies of Authors’ books and millions of other books was justified because all those copies were at least reasonably necessary for training LLMs — and yet Anthropic has resisted putting into the record what copies or even sets of copies were in fact used for training LLMs.  For example, at oral argument, Anthropic asserted that if a purported fair user had retained pirated copies for uses beyond the fair use, then her piracy would not be excused by the fair use (Tr. 53, 56).  But when Authors earlier interrogated Anthropic in discovery about what library copies (the original copies “obtained or created” by Anthropic) Anthropic had recopied for further uses, Anthropic responded that providing information about any copies made for uses beyond training commercially released LLMs would be overbroad, and that it could not count up all its copying even for LLMs in any case (e.g., Opp Exh. 30 at 3).  We know that Anthropic has more information about what it in fact copied for training LLMs (or not).  Anthropic earlier produced a spreadsheet that showed the composition of various data mixes used for training various LLMs — yet it clawed back that spreadsheet in April (Opp. Fredricks Decl. ¶¶ 2–3).  A discovery dispute regarding that spreadsheet remains pending.  But Anthropic did not need a court order to offer up what it possessed in support of its motion.  All deficiencies must be held against Anthropic and not the other way around. 

This is the first substantive order in this case.  A contemporaneous motion for class certification remains pending.  It proposes one class related to works that were pirated (whether or not used to train LLMs), and a second class related to works that were purchased, scanned, and used in training LLMs.  This order follows full briefing, a hearing, and supplemental briefing.

To summarize the analysis that now follows, the use of the books at issue to train Claude and its precursors was exceedingly transformative and was a fair use under Section 107 of the Copyright Act.  And, the digitization of the books purchased in print form by Anthropic was also a fair use but not for the same reason as applies to the training copies.  Instead, it was a fair use because all Anthropic did was replace the print copies it had purchased for its central library with more convenient space-saving and searchable digital copies for its central library — without adding new copies, creating new works, or redistributing existing copies.  However, Anthropic had no entitlement to use pirated copies for its central library.  Creating a permanent, general-purpose library was not itself a fair use excusing Anthropic’s piracy. 

ANALYSIS

Section 107 of the Copyright Act identifies four factors for determining whether a given use of a copyrighted work is a fair use: 

[T]he fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), 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. 

These factors presuppose a “use.”  So, at the threshold, a court must decide whether a “copyrighted [work] has been used in multiple ways,” then evaluate each.  Warhol, 598 U.S. at 533.  Uses do not turn on “the subjective intent of the user” but on “an objective inquiry into what use was made, i.e., what the user d[id] with the original work.”  Id. at 544–45.  A “use” should be construed narrowly enough to not “swallow” distinguishable infringing uses, much less categories of exclusive rights in toto.  Id. at 541, 543 n.18, 546–48.  Sometimes, the challenged copying involves just one use:  In Perfect 10, Inc. v. Amazon.com, Inc., Google visited websites having full-sized images, made only reduced-sized copies, and incorporated those directly into its search engine — the sole use of the thumbnails being as “pointer[s]” to the images themselves.  508 F.3d 1146, 1157, 1160, 1165 (9th Cir. 2007).  Sometimes, the copying involves many uses:  In the Google Books cases, Google borrowed books from libraries, made both full-image and text-only copies, and incorporated different copies into different tools — one use being to reveal information “about those books,” another use being to provide the books to print-disabled patrons, and still another being to back up the print books if lost.  Authors Guild v. Google, Inc., 804 F.3d 202, 217 (2d Cir. 2015) (quoted); Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 97, 101, 103 (2d Cir. 2014) (other cited uses). 

Our parties debate an instructive decision.  In American Geophysical Union v. Texaco Inc., Texaco employees used scientific articles in a central library, used copies of them in personal desk libraries, and used selected copies again in the scientific laboratory — the first use paid for, the second infringing, and the third plausibly fair but in fact a rare occurrence.  802 F. Supp. 1, 4–5, 14 (S.D.N.Y. 1992) (Judge Pierre Leval), aff’d, 60 F.3d 913, 918–19, 926 (2d Cir. 1994). 

Here, our parties contest what use or uses are at issue.  Anthropic contends it copied Authors’ books only for one use:  Only to train LLMs.  By contrast, Authors contend it did so for at least two uses:  First to build a vast, central library of potentially useful content, and second to train specific LLMs using shifting sets and subsets of that content — over time selecting the more well-organized and well-expressed works for training.  Authors also complain that the print-to-digital format change was itself an infringement not abridged as a fair use (Opp. 15, 25).  Authors do not allege, however, that any LLM outputs infringing upon their works ever reached users of the public-facing Claude service. 

This order addresses each of the four factors in turn, pointing out how each applies to the training copies and to the purchased and pirated library copies.  It concludes with an integrated analysis. 

1. THE PURPOSE AND CHARACTER OF THE USE.

For a given use at issue, the first factor addresses “the purpose and character of th[at] use, including whether [it] is of a commercial nature or is for nonprofit educational purposes.”  17 U.S.C. § 107(1).

1. THE COPIES USED TO TRAIN SPECIFIC LLMS.

All agree that one use at issue was training LLMs to receive text inputs and return text outputs.  More specifically, Anthropic used copies of Authors’ copyrighted works to iteratively map statistical relationships between every text-fragment and every sequence of text-fragments so that a completed LLM could receive new text inputs and return new text outputs as if it were a human reading prompts and writing responses.  Authors further argue — and this order takes for granted — that such training entailed “memoriz[ing]” works by “compress[ing]” copies of those works into the LLM (Opp. 16–17; see Opp. Expert Zhao ¶ 74).  The LLMs “memorize[d] A LOT, like A LOT” (Opp. Exh. 35 at -029109).  Regardless, the “purpose and character” of using works to train LLMs was transformative — spectacularly so.

To repeat and be clear:  Authors do not allege that any LLM output provided to users infringed upon Authors’ works.  Our record shows the opposite.  Users interacted only with the Claude service, which placed additional software between the user and the underlying LLM to ensure that no infringing output ever reached the users.  This was akin to the limits Google imposed on how many snippets of text from any one book could be seen by any one user through its Google Books service, preventing its search tool from devolving into a reading tool.  Google, 804 F.2d at 222.  Here, if the outputs seen by users had been infringing, Authors would have a different case.  And, if the outputs were ever to become infringing, Authors could bring such a case.  But that is not this case. 

Instead, Authors challenge only the inputs, not the outputs, of these LLMs.  They point to the fully trained LLMs and the Claude service only to shed light on how training itself uses copies of their works and the ways the Claude service could be used to produce still other works that would compete with their works.  This order does the same.  Authors’ arguments that the training use is not transformative are unavailing. 

First, Authors argue that using works to train Claude’s underlying LLMs was like using works to train any person to read and write, so Authors should be able to exclude Anthropic from this use (Opp. 16).  But Authors cannot rightly exclude anyone from using their works for training or learning as such.  Everyone reads texts, too, then writes new texts.  They may need to pay for getting their hands on a text in the first instance.  But to make anyone pay specifically for the use of a book each time they read it, each time they recall it from memory, each time they later draw upon it when writing new things in new ways would be unthinkable.  For centuries, we have read and re-read books.  We have admired, memorized, and internalized their sweeping themes, their substantive points, and their stylistic solutions to recurring writing problems. 

Second, to that last point, Authors further argue that the training was intended to memorize their works’ creative elements — not just their works’ non-protectable ones (Opp. 17).  But this is the same argument.  Again, Anthropic’s LLMs have not reproduced to the public a given work’s creative elements, nor even one author’s identifiable expressive style (assuming arguendo that these are even copyrightable).  Yes, Claude has outputted grammar, composition, and style that the underlying LLM distilled from thousands of works.  But if someone were to read all the modern-day classics because of their exceptional expression, memorize them, and then emulate a blend of their best writing, would that violate the Copyright Act?  Of course not.  Copyright does not extend to “method[s] of operation, concept[s], [or] principle[s]” “illustrated[ ] or embodied in [a] work.”  17 U.S.C. § 102(b); see, e.g., Nichols v. Universal Pictures Corp., 45 F.2d 119, 120–22 (2d Cir. 1930) (Judge Learned Hand) (stage properties and storytelling elements); Apple Comput., Inc. v. Microsoft Corp., 35 6 F.3d 1435, 1445 (9th Cir. 1994) (“user-friendly” design principles and elements); Swirsky v. Carey, 376 F.3d 841, 848 (9th Cir. 2004) (music theory principles and chord progressions). 

Third, Authors next argue that computers nonetheless should not be allowed to do what people do. 

Authors cite a decision seeming to say as much (Opp. 16–17).  But the judge there twice emphasized while discussing “purpose and character” of the use that what was trained was “not generative AI (AI that writes new content itself).”  Rather, what was trained — using a proprietary system for finding court opinions in response to a given legal topic — was a competing AI tool for finding court opinions in response to a given legal topic.  That was not transformative.  Thomson Reuters Enter. Centre GmbH v. Ross Intell. Inc., 765 F. Supp. 3d 382, 398 (D. Del. 2025) (Judge Stephanos Bibas), appeal docketed, No. 25-8018 (3d Cir. Apr. 14, 2025).

A better analogue to our facts would be an AI tool trained — using court opinions, and briefs, law review articles, and the like — to receive legal prompts and respond with fresh legal writing.  And, on facts much like those, a different court came out the other way.  It found fair use.  White v. W. Pub. Corp., 29 F. Supp. 3d 396, 400 (S.D.N.Y. 2014) (Judge Jed Rakoff).

The latter use stood sufficiently “orthogonal” to anything that any copyright owner rightly could expect to control.  See Warhol, 598 U.S. at 538–40.  It could thus be freed up for the copyist to use, “promot[ing] the progress of science and the arts, without diminishing the incentive to create.”  Id. at 531 (emphasis added); see U.S. CONST. art. I, § 8, cl. 8. 

In short, the purpose and character of using copyrighted works to train LLMs to generate new text was quintessentially transformative.  Like any reader aspiring to be a writer, Anthropic’s LLMs trained upon works not to race ahead and replicate or supplant them — but to turn a hard corner and create something different.  If this training process reasonably required making copies within the LLM or otherwise, those copies were engaged in a transformative use.

The first factor favors fair use for the training copies.

1. THE COPIES USED TO BUILD A CENTRAL LIBRARY.

But that is not the only use at issue.  Recall that Anthropic purchased millions of print books for its central library and pirated millions of digital books for its central library, too.  It used specific sets and subsets of books for training specific LLMs.  And, it then retained all the copies in its central library for other uses that might arise even after deciding it would not use them to train any LLM (at all or ever again).  Anthropic seems to believe that because some of the works it copied were sometimes used in training LLMs, Anthropic was entitled to take for free all the works in the world and keep them forever with no further accounting.  There is no carveout, however, from the Copyright Act for AI companies. 

Because the legal issues differ between the library copies Anthropic purchased and pirated, this order takes them in turn. 

(i)  The Purchased Library Copies Converted from Print to Digital. Anthropic purchased millions of print copies to “build a research library” (Opp. Exh. 22 at 145, 148).  It destroyed each print copy while replacing it with a digital copy for use in its library (not for sharing nor sale outside the company).  As to these copies, Authors do not complain that Anthropic failed to pay to acquire a library copy.  Authors only complain that Anthropic changed each copy’s format from print to digital (see Opp. 15, 25 & n.14).  On the facts here, that format change itself added no new copies, eased storage and enabled searchability, and was not done for purposes trenching upon the copyright owner’s rightful interests — it was transformative.

Anthropic purchased its print copies fair and square.  With each purchase came entitlement for Anthropic to “dispose[ ]” each copy as it saw fit.  17 U.S.C. § 109(a).  So, Anthropic was entitled to keep the copies in its central library for all the ordinary uses.  Yes, Anthropic changed the format of these library copies from print to digital — giving rise to the issue here. 

All agree on the facts of the format change.  Anthropic “destructively scan[ned]” the print copies to create the digital ones.  Anthropic or its vendors stripped the bindings from the print books, cut the pages to workable dimensions, and scanned those pages — discarding each print copy while creating a digital one in its place.  The digital copy was then housed in the “research library” or “generalized data area” in place of the print copy (Opp. Exh. 22 at 145– 8  46, 193–94).  Authors do not allege and our record does not show that Anthropic provided its converted digital copies of print books to anyone outside Anthropic. 

The parties disagree about the legal consequences of the format change.  Was scanning the print copies to create digital replacements transformative?  Anthropic argues it was because it was reasonably necessary to training LLMs.  Authors argue it was a distinguishable step requiring independent justification. 

Here, for reasons narrower than Anthropic offers, the mere format change was a fair use. 

Storage and searchability are not creative properties of the copyrighted work itself but physical properties of the frame around the work or informational properties about the work.  See Texaco, 802 F. Supp. at 14 (physical), aff’d, 60 F.3d at 919; Google, 804 F.3d at 225 (informational); Sony Corp. of Am. v. Universal City Studios, Inc. (“Sony Betamax”), 464 U.S. 417, 447 (1984) (rightful interests).  In Texaco, the court reasoned that if a purchased scientific journal article had been copied “onto microfilm to conserve space, this might [have been] a persuasive transformative use.”  802 F. Supp. at 14 (Judge Pierre Leval), aff’d, 60 F.3d at 919 (reducing “bulk[ ]” “might suffice to tilt the first fair use factor in favor of Texaco if these purposes were dominant“).  In Google Books, the court reasoned that a print-to-digital change to expose information about the work was transformative.  Google, 804 F.3d at 225 (Judge Pierre Leval).  And, in Sony Betamax, the Supreme Court held that making a recording of a television show in order to instead watch it at a later time was copying but did not usurp any rightful interest of the copyright owner.  464 U.S. at 447, 455.  Important to the Supreme Court’s reasoning was the expectation that most such copiers would not distribute the permanent copies of the work.  Finally, in A&M Records, Inc. v. Napster, Inc., our court of appeals recognized the reasoning just explained, and therefore rejected by contrast a digitization effort that was touted as space-shifting but in fact resulted in the multiplication of copies shared with outsiders through a file-sharing service.  239 F.3d 1004, 1019 (9th Cir. 5  2001), aff’g in this part 114 F. Supp. 2d 896, 912–13, 915–16 (N.D. Cal. 2000) (Judge Marilyn Hall Patel) (citing Sony Betamax and Texaco). 

Here, every purchased print copy was copied in order to save storage space and to enable searchability as a digital copy.  The print original was destroyed.  One replaced the other.  And, there is no evidence that the new, digital copy was shown, shared, or sold outside the company.  This use was even more clearly transformative than those in Texaco, Google, and Sony Betamax (where the number of copies went up by at least one), and, of course, more transformative than those uses rejected in Napster (where the number went up by “millions” of copies shared for free with others). 

Yes, Anthropic is a commercial outfit.  And, this order takes for granted that Anthropic in fact benefited from the print-to-digital format change — or it would not have gone to all the trouble.  But the crux of the first fair use factor’s concern for “commercial” use is in protecting 17  the copyright owners and their entitlements to exploit their copyright as they see fit (or not).  See, e.g., Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 562 (1985).  That the accused is a commercial entity is indicative, not dispositive.  That the accused stands to benefit is likewise indicative.  But what matters most is whether the format change exploits anything the Copyright Act reserves to the copyright owner.  Anthropic already had purchased permanent library copies (print ones).  It did not create new copies to share or sell outside. 

Yes, Authors also might have wished to charge Anthropic more for digital than for print copies.  And, this order takes for granted that Authors could have succeeded if Anthropic had been barred from the format change.  “But the Constitution’s language [in Clause 8] nowhere suggests that [the copyright owner’s] limited exclusive right should include a right to divide markets or a concomitant right to charge different purchasers different prices for the same book, [merely] say to increase or to maximize gain.”  See Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519, 552 (2013); see also U.S. Const. art. I., § 8, cl. 8.  Nor does the Copyright Act itself.  Section 106 sets out exclusive rights that fair uses under Section 107 abridge.  Section 106(1) reserves to the copyright owner the right to make reproductions.  But on our facts we face the unusual situation where one copy entirely replaced the another.  And, Section 106(2) reserves to the copyright owner the right to make derivative works that add or subtract creative material — as occurs in a “translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, [or] condensation” of a book, 17 U.S.C. § 101 (definitions).  For some “other modification[ ]” of a book to constitute a “derivative work,” it must itself “represent an original work of authorship.”  Ibid.  But on our facts the format was changed but no content was added or subtracted.  See Mirage Editions, Inc. v. Albuquerque A.R.T. Co., 856 F.2d 1341, 1342, 1343–44 (9th Cir. 1988) (yes where elements added to create new decorative ceramic).[FN4]

Section 106(3) further reserves to the copyright owner the right to distribute copies.  But again, the replacement copy here was kept in the central library, not distributed.  Cf. Fox News Network, LLC v. TVEyes, Inc., 883 F.3d 169, 176–78 (2d Cir. 2018) (enabling searching for “information about the material” can be transformative use, even if some distribution results); Lewis Galoob Toys, Inc. v. Nintendo of Am., Inc., 964 F.2d 965, 968, 971 (9th Cir. 1992) (using nifty converter to “merely enhance[ ]” audiovisual displays emitted from purchased videogame cartridge was fair use of those displays partly because no surplus copies of cartridge or displays were ever created).

As a result, Anthropic’s format-change from print library copies to digital library copies was transformative under fair use factor one.  Anthropic was entitled to retain a copy of these works in a print format.  It retained them instead in a digital format, easing storage and searchability.  And, the further copies made therefrom for purposes of training LLMs were themselves transformative for that further reason, as above. 

To be clear, this print-to-digital conversion involved a different and narrower form of transformative use than the broader one advanced by Anthropic.  Anthropic argues that the central library use was part and parcel of the LLM training use and therefore transformative.  This order disagrees.  However, this order holds that the mere conversion of a print book to a digital file to save space and enable searchability was transformative for that reason alone.  Therefore, the digital copy should be treated just as if the purchased print copy had been placed in the central library.

In sum, the first fair use factor favors fair use for the digital library copies converted from purchased print library copies — but these do not excuse the pirated library copies.

(ii)  The Pirated Library Copies.

Before buying books for its central library, Anthropic downloaded over seven million pirated copies of books, paid nothing, and kept these pirated copies in its library even after deciding it would not use them to train its AI (at all or ever again).  Authors argue Anthropic should have paid for these pirated library copies (e.g., Tr. 24–25, 65; Opp. 7, 12–13).  This order agrees.

The basic problem here was well-stated by Anthropic at oral argument:  “You can’t just bless yourself by saying I have a research purpose and, therefore, go and take any textbook you want.  That would destroy the academic publishing market if that were the case” (Tr. 53).  Of course, the person who purchases the textbook owes no further accounting for keeping the copy.  But the person who copies the textbook from a pirate site has infringed already, full stop.  This order further rejects Anthropic’s assumption that the use of the copies for a central library can be excused as fair use merely because some will eventually be used to train LLMs.

This order doubts that any accused infringer could ever meet its burden of explaining why downloading source copies from pirate sites that it could have purchased or otherwise accessed lawfully was itself reasonably necessary to any subsequent fair use.  There is no decision holding or requiring that pirating a book that could have been bought at a bookstore was reasonably necessary to writing a book review, conducting research on facts in the book, or creating an LLM.  Such piracy of otherwise available copies is inherently, irredeemably infringing even if the pirated copies are immediately used for the transformative use and immediately discarded. 

But this order need not decide this case on that rule.  Anthropic did not use these copies only for training its LLM.  Indeed, it retained pirated copies even after deciding it would not use them or copies from them for training its LLMs ever again.  They were acquired and retained, as a central library of all the books in the world. 

Building a central library of works to be available for any number of further uses was itself the use for which Anthropic acquired these copies.  One further use was making further copies for training LLMs.  But not every book Anthropic pirated was used to train LLMs.  And, every pirated library copy was retained even if it was determined it would not be so used.  Pirating copies to build a research library without paying for it, and to retain copies should they prove useful for one thing or another, was its own use — and not a transformative one (see Tr. 24–25, 35, 65; Opp. 4–10, 12 n.6; CC Br. Exh. 12 at -0144509 (“everything forever”)).  Napster, 239 F.3d at 1015; BMG Music v. Gonzalez, 430 F.3d 888, 890 (7th Cir. 2005). 

Anthropic’s briefing contains other reasons why it believes its pirated library copies are irrelevant to our fair use analysis, notwithstanding its own statements at our oral argument.

First, Anthropic accepts in this posture that it acted in bad faith but argues that its bad faith in pirating copies cannot “somehow short-circuit[ ]” the fair use analysis (Reply 6 (downplaying Atari Games Corp. v. Nintendo of Am., Inc., 975 F.2d 832, 843 (Fed. Cir. 1992) (applying law of Ninth Circuit))).  But its bad faith is not the basis for this decision.  Each use of a work must be analyzed objectively.  Warhol, 598 U.S. at 544–45.  The objective analysis here shows the initial copies were pirated to create a central, general-purpose library, as a substitute for paid copies to do the same thing.  (Of course, if infringement is found, bad faith would matter for determining willfulness.  17 U.S.C. § 504(c)(2).)

Second, Anthropic argues that its goal to put the copies eventually “to a highly transformative use” requires that each copy and use along the way be justified as having a transformative use, too (Reply 14).  But now Anthropic seeks to take the shortcut Anthropic just said cannot be taken.  Again, the Supreme Court tasks us with looking past the “subjective intent of the user” to the objective use made of each copy.  Warhol, 598 U.S. at 544–45 (emphasis added).  Put another way, what a copyist says or thinks or feels matters only to the extent it shows what a copyist in fact does with the work.  Indeed, the same copy can be used one way, then another, each with a different result.  Id. at 533.  Here, what Anthropic said about its acquisitions at the time — that they were made to “build[ ] a research library” while avoiding a “huge legal/practice/business slog” — are relevant in this regard.  And, Anthropic’s actual use of these pirated copies was to create its central library of texts that, like any university or corporate library, stored the works’ well-organized facts, analyses, and expressive examples for various contingent uses, one being training.[FN5] 

Third, Anthropic argues that Texaco — the case involving copies used in a central library, copies used in desk libraries, and copies used in the laboratory — is inapposite.  Anthropic argues that the disputed copies in Texaco were never used in the laboratory but instead in personal desk libraries for a use “identical to the original purpose and use” of the central library copies, and so not for a transformative use (Reply 8 (summarizing 60 F.3d at 922–23)).  By contrast, says Anthropic, here it did use copies in the laboratory to train LLMs — a very transformative use.  But this is a fast glide over thin ice.  Like Texaco, Anthropic possessed copies it did not put into use in the laboratory and it kept those copies in a central library even after its transformative use had been completed.  But, unlike Texaco, which bought those copies, Anthropic never paid for the central library copies stolen off the internet.  Texaco also shows why Anthropic is wrong to suppose that so long as you create an exciting end product, every “back-end step, invisible to the public,” is excused (Br. 10). 

Notably, this is not a case where source copies were unavailable for separate purchase or loan.  See, e.g., NXIVM Corp. v. Ross Inst., 364 F.3d 471, 475–76, 478–79 (2d Cir. 2004) 5  (using selections of training manual — otherwise available only to cult’s trainees subject to NDAs — to expose cult in critical review); Time Inc. v. Bernard Geis Assocs., 293 F. Supp. 130, 135–36, 138, 146 (S.D.N.Y. 1968) (Judge Inzer Bass Wyatt) (making charcoal drawings of photographs taken of originals otherwise not on sale or loan out to illustrate a history book).[FN6]  Nor were the copies made only incidentally and necessarily from pirated copies.  See, e.g., Perfect 10, 508 F.3d at 1164 n.8 (copies of images that had been pirated by third-party websites were used to index those same websites while indexing the entire web).  Here, piracy was the point:  To build a central library that one could have paid for, just as Anthropic later did, but without paying for it.

Nor were the initial copies made immediately transformed into a significantly altered form.  In Perfect 10, images were copied by the search engine in thumbnail form only and deployed immediately into the transformative use of identifying the full-sized images and the pages from which they came.  508 F.3d at 1160, 1165, 1167.  And, in Kelly v. Arriba Software Corp., images were copied at full size and then into thumbnails for immediate use in building a search engine, after which the full-sized copies were immediately deleted.  336 F.3d 811, 815 (9th Cir. 2003).  Not here.  The full-text copies of books were downloaded and maintained “forever.” 

Nor does the initial copying here even resemble the full-text copying in the Google Books cases.  There, libraries of authorized copies already had been assembled, and all copies  therefrom were made for direct employment in a one-to-one further fair use — whether the transformative use of pointing to the works themselves, the use of providing the works in formats for print-disabled patrons, or the use of insuring against going out of print, getting lost, and becoming otherwise unavailable.  HathiTrust, 755 F.3d at 97, 101, 103; Google, 804 F.3d at 206, 216–18, 228 (further distinguishing search and snippet uses, which “test[ed] the boundaries of fair use”).  Not so here concerning the pirated copies.  No authorized copies existed from which Anthropic made its first copies.  No full-text copy therefrom was put immediately into use training LLMs.  Not every copy was even necessary nor used for training LLMs.  No initial copy was ever deleted, even if never used or no longer used.[FN7]  The university libraries and Google went to exceedingly great lengths to ensure that all copies were secured against unauthorized uses — both through technical measures and through legal agreements among all participants.  Not so here.  The library copies lacked internal controls limiting access and use.

Nor do the decisions on intermediate copying require anything less than the analysis applied here.  Anthropic argues that our court of appeals in Sega Enterprises Ltd. v. Accolade, Inc. looked only at the “ultimate use” and “did not analyze a series of atomized acts of ‘infringement’ distinct from that overall purpose” (Reply 3).  To the contrary, the appeals court examined the initial, intermediate, and ultimate copies used by the copyist.  The court explained that the copyist initially purchased commercially available copies of game cartridges and then made further copies necessarily and “solely in order to discover the functional requirements for compatibility.”  977 F.2d 1510, 1522 (9th Cir. 1992).  Thus, it reached only one result because on those facts there was only one “overall purpose” for the unauthorized copies.  Indeed, the court reaffirmed prior caselaw holding that “intermediate copying of [a work] may infringe the exclusive rights granted to the copyright owner in [S]ection 106 of the Copyright Act regardless of whether the end product of the copying also infringes those rights.”  Id. at 1518–19 (reaffirming Walker v. Univ. Books, 602 F.2d 859, 864 (9th Cir. 1979)). 

Similarly, in Sony Computer Entertainment, Inc. v. Connectix Corp., our appeals court applied the same law to similarly focused conduct.  Another copyist allegedly had purchased an authorized copy and then made further copies solely and necessarily to reverse-engineer compatibility requirements.  203 F.3d 596, 601, 602–03 (9th Cir. 2000). 

Both Sega and Sony avoided imposing an “artificial hurdle” to fair use by generously construing the intermediate copying necessary to the fair use.  As one example, Sega stated that an engineer should be permitted to reboot her computer while undertaking to reverse-engineer software loaded onto it — even if doing so creates another digital copy of the software and is not strictly necessary to reverse-engineering.  Id. at 605.  But neither Sega nor Sony fathomed gifting an “artificial head start” to a fair user, either, by treating even the initial copy as an intermediate one. 

And, yes, some courts have “not inquire[d]” into intermediate or initial copying at all (Reply 2 (citing Campbell as not inquiring into surplus copies in the studio)).  But if a “close reading of those cases [ ] reveals that in none of them was the legality of the [initial or] intermediate copying at issue,” then it was not raised and not necessarily decided.  Sega, 977 F.2d at 1519; see Webster v. Fall, 266 U.S. 507, 511 (1925).  It was expressly decided elsewhere:  Our analysis must attend to different uses of different copies, and even to different uses of the same copies.  Warhol, 598 U.S. at 533. 

Finally, Anthropic argues that even if the initial copies served a different use than the intermediate and ultimate copies, it was not a use for which Anthropic necessarily would have needed to pay Authors for a copy.  In theory, argues Anthropic, it could have done as Google did in Google Books — find an existing reference library willing to loan its copies for free as source copies.  Or, in theory, it could have done as Anthropic did later — go buy used copies without having to pay Authors at all.  See 17 U.S.C. § 109(a).  But Anthropic did not do those things — instead it stole the works for its central library by downloading them from pirated libraries.

In sum, the first factor points against fair use for the central library copies made from pirated sources — and no damages from pirating copies could be undone by later paying for copies of the same works. 

2. THE NATURE OF THE COPYRIGHTED WORK.

The second fair use factor is “the nature of the copyrighted work.”  17 U.S.C. § 107(2).  This factor “calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied.”  Campbell, 510 U.S. at 586.  For one thing, less protection is due published works than unpublished ones.  For another, less protection is due “factual works than works of fiction or fantasy.”  Harper & Row, 471 U.S. at 563.  But less protection is not no protection.  Even the arrangement of otherwise unprotectable facts surpasses the low bar for a protectable original work of authorship.  Google, 804 F.3d at 220. 

Here, Anthropic accepts that all of Authors’ books — all published, whether non-fiction or fiction — contained expressive elements (Reply 9).  And, as set out above, this order accepts Authors’ view of the evidence that their works were chosen for their expressive qualities in building a central library and then in training specific LLMs (Opp. 11, 17 (citing, e.g., Opp. Exh. 3 at -03433)). 

The main function of the second factor is to help assess the other factors:  to reveal differences between the nature of the works at issue and the nature of their secondary use (above), and to reveal any relation between the amount and substantiality of each work taken and the secondary use (next).  E.g., Campbell, 510 U.S. at 586; Kelly, 336 F.3d at 820; Google, 804 F.3d at 220; HathiTrust, 755 F.3d at 98; Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 612–13 (2d Cir. 2006). 

The second factor points against fair use for all copies alike. 

3. THE AMOUNT AND SUBSTANTIALITY OF THE PORTION USED.

The third fair use factor is “the amount and substantiality of the portion” of the copyrighted work used by the accused.  17 U.S.C. § 107(3).  The crux of this factor is whether the amount was “reasonable in relation to the purpose of the copying.”  Campbell, 510 U.S. at 586.  Thus, the amount of copying is considered first against the work itself, then more importantly against the proposed transformative purpose.  See Warhol, 598 U.S. at 543 & n.18. 

1. THE COPIES USED TO TRAIN SPECIFIC LLMS.

Copies selected for inclusion in training sets were selected because they were complete and because they contained rich protectible expression, or so this order accepts the record shows for Authors.  Was all this copying reasonably necessary to the transformative use? 

Yes. 

“What matters [ ] is not so much ‘the amount and substantiality of the portion used’ in making a copy, but rather the amount and substantiality of what is thereby made accessible to a public [in the purported secondary use] for which it may serve as a competing substitute [for the primary use].”  Google, 804 F.3d at 222.  Here, once again, there is no allegation of any traceable connection between the Claude service’s outputs and Authors’ works.  The copying used to train the LLMs underlying Claude was thus especially reasonable.

In response, Authors object primarily that the copying used in training was both extremely extensive and not strictly necessary. 

As to extensive copying, it is true that entire works were copied.  And, “copying [ ] entire work[s] ‘militate[s] against a finding of fair use.’”  Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110, 1118 (9th Cir. 2000) (quoting Hustler Mag. Inc. v. Moral 23 Majority Inc., 796 F.2d 1148, 1155 (9th Cir. 1986)); see Campbell, 510 U.S. at 587.  But we just addressed why Authors’ argument is misdirected.  The copies that count for this factor are those that would merely serve the same use as the work’s ordinary one.  Authors do not allege such copying.  The accused use here of the incremental copies is as orthogonal as can be imagined to the ordinary use of a book. 

As to strict necessity, Authors make a stronger point.  When a productive use is made possible only by borrowing from a specific work, fair use climbs towards its zenith.  When a productive use is possible without that borrowing, fair use falls to its nadir — and the borrowing deserves a particularly compelling justification.  See Warhol, 598 U.S. at 543 & n.18, 547.  Here, it is true that Anthropic could have used some other books or no books at all for training its LLMs — or so this order accepts the record shows for Authors.  But Anthropic has presented a compelling explanation for why it was reasonably necessary to use them anyway. 

For one thing, all agree Anthropic needed billions of words to train any given LLM.  If using only books, Anthropic would have needed millions of books per model.  If using a set comprising only a small fraction of books and a larger fraction of other texts, Anthropic still would have needed hundreds of thousands of books.  Authors contend that because Anthropic showed it could use such smaller sets of books, it surely could have used no books at all — or at least not their books (Opp. 23).  But Authors forget that “reasonably necessary” does not mean “strictly necessary.”  Authors do not contest that the volume of text required to train an LLM is monumental.  Because using so many works was reasonably necessary, using any one work for actually training LLMs was about as reasonable as the next.

For another thing, no output to the public was even alleged to be infringing.  So, yes, Authors’ works were chosen as the strongest examples of writing.  But the compelling benefits of training the LLMs on strong examples were not offset by revelations to the public of any portion of the works themselves.  What was copied was therefore especially reasonable and compelling.  The third factor thus favors fair use for the training copies. 

1. THE COPIES USED TO BUILD A CENTRAL LIBRARY.

But again, there was a separate use — a distinction that makes some difference as to whether the amount and substantiality of the copying was “reasonable in relation to the purpose of the copying” for the library copies.  Campbell, 510 U.S. at 586. 

(i) The Purchased Library Copies Converted from Print to Digital.

For the print library copies that Anthropic purchased and then converted into digital library copies, Anthropic already enjoyed entitlement to keep the copies in its library.  The purpose of the copying was to keep them in its library but with more favorable storage and searchability properties.  Copying the entire work was exactly what this purpose required.  There was no surplus copying.  The source copy was destroyed. 

The third fair use factor favors fair use for the purchased library copies converted from print to digital.

(ii)  The Pirated Library Copies.

For the pirated library copies, however, Anthropic lacked any entitlement to hold copies of the books at all.  Its purpose, it says, was to train LLMs.  But its objective conduct was to seek “all the books in the world” and then retain them even after deciding it would not make further copies from them for training — indicating there were other further uses.  Against the purpose of acquiring all the books one could on the chance some might prove useful for training LLMs and maybe other stuff too, almost any unauthorized copying would have been too much.  Anthropic copied millions of books in toto, Authors’ works among them.

The third factor points against fair use for the pirated library copies.

4. THE EFFECT OF THE USE UPON THE MARKET FOR OR VALUE OF THE COPYRIGHTED WORK.

The final factor is “the effect of the use upon the potential market for or value of the copyrighted work.”  17 U.S.C. § 107(4).  This factor points against fair use when a copyist makes copies available that displace demand for copies the copyright owner already makes available or readily could.  Texaco, 60 F.3d at 926–28 (reproduced copies); Dr. Seuss Enters., L.P. v. ComicMix LLC, 983 F.3d 443, 461 (9th Cir. 2020) (derivative copies). “While the first factor considers whether and to what extent an original work and secondary use [in principle could] have substitutable purposes, the fourth factor focuses on actual or potential market substitution.”  Warhol, 598 U.S. at 536 n.12 (emphasis added). 

1. THE COPIES USED TO TRAIN SPECIFIC LLMS.

The copies used to train specific LLMs did not and will not displace demand for copies of Authors’ works, or not in the way that counts under the Copyright Act. 

Again, Authors concede that training LLMs did not result in any exact copies nor even infringing knockoffs of their works being provided to the public.  If that were not so, this would be a different case.  Authors remain free to bring that case in the future should such facts develop. 

Instead, Authors contend generically that training LLMs will result in an explosion of works competing with their works — such as by creating alternative summaries of factual events, alternative examples of compelling writing about fictional events, and so on.  This order assumes that is so (Opp. 22–23 (citing, e.g., Opp. Exh. 38)).  But Authors’ complaint is no different than it would be if they complained that training schoolchildren to write well would result in an explosion of competing works.  This is not the kind of competitive or creative displacement that concerns the Copyright Act.  The Act seeks to advance original works of authorship, not to protect authors against competition.  Sega, 977 F.2d at 1523–24. 

Authors next contend that training LLMs displaced (or will) an emerging market for licensing their works for the narrow purpose of training LLMs (Opp. 21–22).  Anthropic argues that transactional costs would exceed Anthropic’s expected benefit from any such bargain, prompting it to cease dealing with any rightsholders or else to cease developing such technology altogether (Br. 22–23).  Our record could support either account — so this order must assume Authors are correct.  A market could develop (Opp. 19–21 (citing record)).  Even so, such a market for that use is not one the Copyright Act entitles Authors to exploit. 

None of the cases cited by Authors requires a different result.  All contemplated losses of something the Copyright Act properly protected — not the kinds of fair uses for which a copyright owner cannot rightly expect to control.  See TVEyes, Inc., 883 F.3d at 181 (use of a right legally reserved to and factually already being licensed by copyright owner); Texaco, 60 F.3d 931 (same); Ringgold v. BET, Inc., 126 F.3d 70, 80–81 (2d Cir. 1997) (use of a right legally reserved to and factually likely to be marketable by copyright owner — displaying images of her artistic work in television shows); cf. Seltzer v. Green Day, Inc., 725 F.3d 1170, 1179 (9th Cir. 2013) (no evidence use could be or “was likely to” be marketable).

The fourth factor thus favors fair use for the training copies.

1. THE COPIES USED TO BUILD A CENTRAL LIBRARY.

(i)  The Purchased Library Copies Converted from Print to Digital.

For these copies, this order assumes Anthropic’s format change from print to digital displaced purchases of new digital copies that Anthropic would have made directly from Authors (had it not been able to purchase print copies in used condition).  But for reasons stated under the first factor, such losses did not relate to something the Copyright Act reserves for Authors to exploit.  It was a format change. 

Authors’ next argument, it seems, is that the format change nonetheless exposed it to usurpation of the opportunity to sell rightful copies because Anthropic might transmit additional unauthorized digital copies more readily than it could have transmitted additional unauthorized print copies — and that the same would be true for all format converters (cf. Opp. 25 n.14; Opp. Expert Malackowski ¶ 52).  But after much discovery, there is no inkling in our record of intent to redistribute library copies once acquired nor of inability to secure that valuable library against outside actors.  And, if the internal, central library copies did or do in fact lead to further reproduction or distribution, those further copies remain redressable separately by Authors.  The format change did not itself usurp the Authors’ rightful entitlements.

This factor is thus neutral for the purchased library copies converted from print to digital.

(ii)  The Pirated Library Copies.

The copies used to build a central library and that were obtained from pirated sources plainly displaced demand for Authors’ books — copy for copy.  Not every person who merely intends to make a fair use of a work is thereby entitled to a full copy in the meantime, nor even to steal a copy so that achieving this fair use is especially simple or cost-effective.  Here, the copies employed in training LLMs were one thing, but the copies acquired to assemble a convenient, general-purpose library of works for various uses for which the company might have of them, if any, was a different use altogether. 

Anthropic has almost no rebuttal on these points.  First, Anthropic argues that “Claude’s services do not reduce [or usurp] the value of Plaintiffs’ works through substitution in their traditional markets” (see Br. Expert Peterson ¶ 33).  But stealing pirated copies of Authors’ works plainly did.  Second, Anthropic argues that it may have been able to purchase some books on the open market (and some other texts), but not other texts it copied (cf. id. ¶ 48 (re licensing)).  But this case does not concern those other texts it could not have purchased.  It could have purchased Authors’ books (and many others).  In fact it later did.  Finally, Anthropic argues that the effect on these texts from one book foregone was too small to be considered (see id. ¶ 77).  But the test requires that we contemplate the likely result were the conduct to be condoned as a fair use — namely to steal a work you could otherwise buy (a book, millions of books) so long as you at least loosely intend to make further copies for a purportedly transformative use (writing a book review with excerpts, training LLMs, etc.), without any accountability.  As Anthropic itself suggested, “That would destroy the [entire] publishing market if that were the case” (see Tr. 53; see also Tr. 32, 41; Opp. Expert Malackowski ¶¶ 31–34, 38).

The fourth factor points against fair use for the pirated library copies.

5. OVERALL ANALYSIS.

After the four factors and any others deemed relevant are “explored, [ ] the results [are] weighed together, in light of the purposes of copyright.”  Campbell, 510 U.S. at 578.

The copies used to train specific LLMs were justified as a fair use.  Every factor but the nature of the copyrighted work favors this result.  The technology at issue was among the most transformative many of us will see in our lifetimes. 

The copies used to convert purchased print library copies into digital library copies were justified, too, though for a different fair use.  The first factor strongly favors this result, and the third favors it, too.  The fourth is neutral.  Only the second slightly disfavors it.  On balance, as the purchased print copy was destroyed and its digital replacement not redistributed, this was a fair use.

The downloaded pirated copies used to build a central library were not justified by a fair use.  Every factor points against fair use.  Anthropic employees said copies of works (pirated ones, too) would be retained “forever” for “general purpose” even after Anthropic determined they would never be used for training LLMs.  A separate justification was required for each use.  None is even offered here except for Anthropic’s pocketbook and convenience.

And, as for any copies made from central library copies but not used for training, this order does not grant summary judgment for Anthropic.  On this record in this posture, the central library copies were retained even when no longer serving as sources for training copies, “hundreds of engineers” could access them to make copies for other uses, and engineers did make other copies.  Anthropic has dodged discovery on these points (e.g., Opp. Exh. 17 at 93–94 (retained); Opp. Exh. 22 at 196 (no limits); Opp. Exh. 30 at 3, 4 (no accounting); see also Opp. 15).  We cannot determine the right answer concerning such copies because the record is too poorly developed as to them.  Anthropic is not entitled to an order blessing all copying “that Anthropic has ever made after obtaining the data,” to use its words (Opp. Exh. 30 at 3, 4).

CONCLUSION

With respect to the training copies and the print-to-digital converted copies, this order has drawn all ambiguities and inferences in favor of the opposing side, namely Authors.  With respect to the pirated copies, this order has also accepted the Authors’ version of the facts.  Authors did not move for summary judgment but if they had, then we would have been obligated to accept all reasonable views given the evidence in defendant’s favor instead. 

This order grants summary judgment for Anthropic that the training use was a fair use.  And, it grants that the print-to-digital format change was a fair use for a different reason.  But it denies summary judgment for Anthropic that the pirated library copies must be treated as training copies. 

We will have a trial on the pirated copies used to create Anthropic’s central library and the resulting damages, actual or statutory (including for willfulness).  That Anthropic later bought a copy of a book it earlier stole off the internet will not absolve it of liability for the theft but it may affect the extent of statutory damages.  Nothing is foreclosed as to any other copies flowing from library copies for uses other than for training LLMs.

IT IS SO ORDERED. 

Dated:  June 23, 2025. William Alsup, United States District Judge.

[FN1] Specifically, those works were (see Opp. Expert Zhao ¶ 36; CC Br. Expert Zhao ¶ 66):

• Author Bartz’s The Herd (five copies total) (in LibGen and PiLiMi);
• Author Bartz’s The Lost Night (three copies total) (in Books3, LibGen, and PiLiMi);
• Author Graeber’s The Breakthrough (four copies) (in Books3, LibGen, and PiLiMi);
• Author Graeber’s The Good Nurse (five copies total) (in Books3 and LibGen);
• Author Johnson’s To Be A Friend Is Fatal (one copy) (in Books3); and
• Author Johnson’s The Feather Thief (four copies total) (in Books3, LibGen, PiLiMi).

Some evidence suggests Anthropic downloaded still more copies before culling empty files, duplicates, and so on to reach the numbers kept in the central library and counted here.

[FN2] In other words, within the scanned books were one or more copies of the following works:

• Author Bartz’s The Herd;
• Author Bartz’s The Lost Night;
• Author Bartz’s We Were Never Here;
• Author Bartz’s The Spare Room;
• Author Graeber’s The Breakthrough;
• Author Graeber’s The Good Nurse;
• Author Johnson’s To Be A Friend Is Fatal;
• Author Johnson’s The Feather Thief; and,
• Author Johnson’s The Fishermen.

[FN3] (See, e.g., Opp. Exh. 12 at -0391318 (engineers were able to “open any of the books”); CC Reply Exh. 45 at -0365941 (some engineers “want[ed] to search for a book” and get its “scanned book file[ ]”); Opp. Exh. 30 at 3 (made copies of “each such dataset or portions thereof” for training); Opp. Exh. 6 at 3–4 (trained on “portions of datasets,” with at least two such portions from LibGen and four from PiLiMi); Opp. Expert Zhao ¶¶ 27–28, 30–31 (plus two more from PiLiMi, and at least three from scanned books); CC Opp. Exh. 35 at -0273477–82 (tested subsets of pirated and purchased-and-scanned books to see consequences for training); CC Br. Exh. 12 at 0144508–09 (“iterate[d]” selections from library and “train[ed] new models on the best data”); Br. Expert Kaplan ¶¶ 42–45 (explained goals of improving data mixes); Br. Expert Peterson ¶ 14 (similar)).

[FN4] Even if print-to-digital format change did infringe the right to prepare derivative works, Authors have conceded that “Plaintiffs’ infringement claims are predicated on Anthropic’s unauthorized reproduction (17 U.S.C. § 106(1)); Plaintiffs are not alleging infringement by Anthropic of any right to prepare derivative works (id. at § 106(2))” (Dkt. No. 203 at 2 (citations original)).  Whether this concession had consequence for copies tokenized and used for training or “compressed” into the trained LLMs is not reached by this order because Anthropic does not rely on Authors’ concession and those copies were here used transformatively.

[FN5] Our court of appeals has not yet reappraised how bad faith (or good faith) figures in fair use after Warhol.  Its prior appraisal applied the Supreme Court’s statement that “[f]air use presupposes good faith and fair dealing,” Harper & Row, 471 U.S. at 562 (cleaned up).  See Perfect 10, 508 F.3d at1164 n.8.  Since then, the Supreme Court has renewed its “skepticism about whether bad faith has any role.”  Oracle, 593 U.S. at 32–33 (reiterating doubts of Campbell, 510 U.S. at 585 n.18).  And, recently, the Supreme Court has held squarely that it is not the “subjective intent” of a copyist that counts, but the “objective . . . use” of the copy.  Warhol, 598 U.S. at 544– 45.  This order applies this most recent analysis.  Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).

[FN6] Anthropic repeats the misleading characterization of the copyright holder in Oracle that the initial copies were there purloined (Reply 5).  Not so.  “All agree[d] that Google was and remain[ed] free to use the Java language itself.  All agree[d] that Google’s virtual machine [wa]s free of any copyright issues.  All agree[d] that the six-thousand-plus method implementations by Google [we]re free of copyright issues.  The copyright issue, rather,” was the use of Java for purposes of creating competing software having the same familiar, functional schema.  Oracle Am., Inc. v. Google Inc., 872 F. Supp. 2d 974, 978 (N.D. Cal. 2012), aff’d and rev’d in part, 750 F.3d 1339 (Fed. Cir. 2014).

[FN7] Training LLMs was not a use where perpetually maintaining a library copy was intrinsic to the proffered fair use (e.g., for a plagiarism-checker service).  Nor is this an instance where retaining at least one copy was authorized by contract with the copyright owners (e.g., by agreement to express terms upon submission to a plagiarism-checker service, notwithstanding proposed terms scrawled on a paper prior to submission).  A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630, 635–36 & n.5, 645 n.8 (4th Cir. 2009), aff’g in relevant parts 544 F. Supp. 2d 473, 480 (E.D. Va. 2008) (Judge Claude Hilton).  Anthropic mischaracterizes this case.

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:

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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.

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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.