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 Warhols eye-popping
silkscreen of Prince-a work based on but dramatically altering an
existing photograph-is (in copyright lingo) not "transformative."
Still more, the Court decides that even if Warhol's portrait were
transformative-even if its expression and meaning were worlds away
from the photo-that fact would not matter. For in the majority's
view, copyright law's first fair-use factor-addressing "the purpose
and character" of "the use made of a work"-is uninterested in the
distinctiveness and newness of Warhol's portrait.17 U. S. C.
§107. What matters under that factor, the majority
says, is instead a marketing decision: In the majority's view,
Warhol's licensing of the silkscreen to a magazine precludes fair
use.[
1]
You've probably heard of Andy Warhol; you've probably seen his
art. You know that he reframed and reformulated-in a word,
transformed-images created first by others. Campbell's soup cans
and Brillo boxes. Photos of celebrity icons: Marilyn, Elvis,
Jackie, Liz-and, as most relevant here, Prince. That's how Warhol
earned his conspicuous place in every college's Art History 101. So
it may come as a surprise to see the majority describe the Prince
silkscreen as a "modest alteration[ ]" of Lynn Goldsmith's
photograph-the result of some "crop[ping]" and "flatten[ing]"-with
the same "essential nature."
Ante, at 8, 25, n. 14, 33
(emphasis deleted). Or more generally, to observe the majority's
lack of appreciation for the way his works differ in both
aesthetics and message from the original templates. In a recent
decision, this Court used Warhol paintings as the perfect exemplar
of a "copying use that adds something new and important"-of a use
that is "transformative," and thus points toward a finding of fair
use.
Google LLC v.
Oracle America, Inc., 593 U. S.
___, ___-___ (2021) (slip op., at 24-25). That Court would have
told this one to go back to school.
What is worse, that refresher course would apparently be
insufficient. For it is not just that the majority does not realize
how much Warhol added; it is that the majority does not care. In
adopting that posture of indifference, the majority does something
novel (though in law, unlike in art, it is rarely a good thing to
be transformative). Before today, we assessed "the purpose and
character" of a copier's use by asking the following question: Does
the work "add[ ] something new, with a further purpose or different
character, altering the [original] with new expression, meaning, or
message"?
Campbell v.
Acuff-Rose Music,
Inc.,
510 U.S.
569, 579 (1994); see
Google, 593 U. S., at ___ (slip
op., at 24). When it did so to a significant degree, we called the
work "transformative" and held that the fair-use test's first
factor favored the copier (though other factors could outweigh that
one). But today's decision-all the majority's protestations
notwithstanding-leaves our first-factor inquiry in shambles. The
majority holds that because Warhol licensed his work to a
magazine-as Goldsmith sometimes also did-the first factor goes
against him. See,
e.g.,
ante, at 35. It does not
matter how different the Warhol is from the original photo-how much
"new expression, meaning, or message" he added. It does not matter
that the silkscreen and the photo do not have the same aesthetic
characteristics and do not convey the same meaning. It does not
matter that because of those dissimilarities, the magazine
publisher did not view the one as a substitute for the other. All
that matters is that Warhol and the publisher entered into a
licensing transaction, similar to one Goldsmith might have done.
Because the artist had such a commercial purpose, all the
creativity in the world could not save him.
That doctrinal shift ill serves copyright's core purpose. The
law does not grant artists (and authors and composers and so on)
exclusive rights-that is, monopolies-for their own sake. It does so
to foster creativity-"[t]o promote the [p]rogress" of both arts and
science. U. S. Const., Art. I, §8, cl. 8. And for that
same reason, the law also protects the fair use of copyrighted
material. Both Congress and the courts have long recognized that an
overly stringent copyright regime actually "stifle[s]" creativity
by preventing artists from building on the work of others.
Stewart v.
Abend,
495 U.S.
207, 236 (1990) (internal quotation marks omitted); see
Campbell, 510 U. S., at 578-579. For, let's be honest,
artists don't create all on their own; they cannot do what they do
without borrowing from or otherwise making use of the work of
others. That is the way artistry of all kinds-visual, musical,
literary-happens (as it is the way knowledge and invention
generally develop). The fair-use test's first factor responds to
that truth: As understood in our precedent, it provides "breathing
space" for artists to use existing materials to make fundamentally
new works, for the public's enjoyment and benefit.
Id., at
579. In now remaking that factor, and thus constricting fair use's
boundaries, the majority hampers creative progress and undermines
creative freedom. I respectfully dissent.[
2]
I
A
Andy Warhol is the avatar of transformative copying. Cf.
Google, 593 U. S., at ___-___ (slip op., at 24-25)
(selecting Warhol, from the universe of creators, to illustrate
what transformative copying is). In his early career, Warhol worked
as a commercial illustrator and became experienced in varied
techniques of reproduction. By night, he used those techniques-in
particular, the silkscreen-to create his own art. His own-even
though in one sense not. The silkscreen enabled him to make
brilliantly novel art out of existing "images carefully selected
from popular culture." D. De Salvo, God Is in the Details, in Andy
Warhol Prints 22 (4th rev. ed. 2003). The works he produced,
connecting traditions of fine art with mass culture, depended on
"appropriation[s]": The use of "elements of an extant image[ ] is
Warhol's entire modus operandi." B. Gopnik, Artistic Appropriation
vs. Copyright Law, N. Y. Times, Apr. 6, 2021, p. C4 (internal
quotation marks omitted). And with that m.o., he changed modern
art; his appropriations and his originality were flipsides of each
other. To a public accustomed to thinking of art as formal works
"belong[ing] in gold frames"-disconnected from the everyday world
of products and personalities-Warhol's paintings landed like a
thunderclap. A. Danto, Andy Warhol 36 (2009). Think Soup Cans or,
in another vein, think Elvis. Warhol had created "something very
new"-"shockingly important, transformative art." B. Gopnik, Warhol
138 (2020); Gopnik, Artistic Appropriation.
To see the method in action, consider one of Warhol's pre-Prince
celebrity silkscreens-this one, of Marilyn Monroe. He began with a
publicity photograph of the actress. And then he went to work. He
reframed the image, zooming in on Monroe's face to "produc[e] the
disembodied effect of a cinematic close-up." 1 App. 161 (expert
declaration).
At that point, he produced a high-contrast, flattened image on a
sheet of clear acetate. He used that image to trace an outline on
the canvas. And he painted on top-applying exotic colors with "a
flat, even consistency and an industrial appearance."
Id.,
at 165. The same high-contrast image was then reproduced in
negative on a silkscreen, designed to function as a selectively
porous mesh. Warhol would "place the screen face down on the
canvas, pour ink onto the back of the mesh, and use a squeegee to
pull the ink through the weave and onto the canvas."
Id., at
164. On some of his Marilyns (there are many), he reordered the
process-first ink, then color, then (perhaps) ink again. See
id., at 165-166. The result-see for yourself-is miles away
from a literal copy of the publicity photo.
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:
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:
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.[
3] And with the change in form came an
undisputed change in meaning. Goldsmith's focus-seen in what one
expert called the "corporeality and luminosity" of her
depiction-was on Prince's "unique human identity."
Id., at
176, 227. Warhol's focus was more nearly the opposite. His subject
was "not the private person but the public image."
Id., at
159. The artist's "flattened, cropped, exotically colored, and
unnatural depiction of Prince's disembodied head" sought to
"communicate a message about the impact of celebrity" in
contemporary life.
Id., at 227. On Warhol's canvas, Prince
emerged as "spectral, dark, [and] uncanny"-less a real person than
a "mask-like simulacrum."
Id., at 187, 249. He was reframed
as a "larger than life" "icon or totem."
Id., at 257. Yet he
was also reduced: He became the product of a "publicity machine"
that "packages and disseminates commoditized images."
Id.,
at 160. He manifested, in short, the dehumanizing culture of
celebrity in America. The message could not have been more
different.
A thought experiment may pound the point home. Suppose you were
the editor of Vanity Fair or Condé Nast, publishing an
article about Prince. You need, of course, some kind of picture. An
employee comes to you with two options: the Goldsmith photo, the
Warhol portrait. Would you say that you don't really care? That the
employee is free to flip a coin? In the majority's view, you
apparently would. Its opinion, as further discussed below, is built
on the idea that both are just "portraits of Prince" that may
equivalently be "used to depict Prince in magazine stories about
Prince."
Ante, at 12-13; see
ante, at 22-23, and n.
11, 27, n. 15, 33, 35. All I can say is that it's a good thing the
majority isn't in the magazine business. Of course you would care!
You would be drawn aesthetically to one, or instead to the other.
You would want to convey the message of one, or instead of the
other. The point here is not that one is better and the other
worse. The point is that they are fundamentally different. You
would see them not as "substitute[s]," but as divergent ways to (in
the majority's mantra) "illustrate a magazine about Prince with a
portrait of Prince."
Ante, at 15, 33; see
ante, at
22-23, and n. 11, 27, n. 15, 35. Or else you (like the majority)
would not have much of a future in magazine publishing.
In any event, the editors of Vanity Fair and Condé
Nast understood the difference-the gulf in both aesthetics and
meaning-between the Goldsmith photo and the Warhol portrait. They
knew about the photo; but they wanted the portrait. They saw that
as between the two works, Warhol had effected a transformation.
B
The question in this case is whether that transformation should
matter in assessing whether Warhol made "fair use" of Goldsmith's
copyrighted photo. The answer is yes-it should push toward
(although not dictate) a finding of fair use. That answer comports
with the copyright statute, its underlying policy, and our
precedent concerning the two. Under established copyright law
(until today), Warhol's addition of important "new expression,
meaning, [and] message" counts in his favor in the fair-use
inquiry.
Campbell, 510 U. S., at 579.
Start by asking a broader question: Why do we have "fair use"
anyway? The majority responds that while copyrights encourage the
making of creative works, fair use promotes their "public
availability."
Ante, at 13 (internal quotation marks
omitted). But that description sells fair use far short. Beyond
promoting "availability," fair use itself advances creativity and
artistic progress. See
Campbell, 510 U. S., at 575, 579
(fair use is "necessary to fulfill copyright's very purpose"-to
"promote science and the arts"). That is because creative work does
not happen in a vacuum. "Nothing comes from nothing, nothing ever
could," said songwriter Richard Rodgers, maybe thinking not only
about love and marriage but also about how the Great American
Songbook arose from vaudeville, ragtime, the blues, and
jazz.[
4] This Court has long understood the
point-has gotten how new art, new invention, and new knowledge
arise from existing works. Our seminal opinion on fair use quoted
the illustrious Justice Story:
"In truth, in literature, in science and in art, there are, and
can be, few, if any, things, which . . . are strictly new and
original throughout. Every book in literature, science and art,
borrows, and must necessarily borrow, and use much which was well
known and used before."
Id., at 575 (quoting
Emerson
v.
Davies, 8 F. Cas. 615, 619 (No. 4,436) (CC Mass.
1845)).
Because that is so, a copyright regime with no escape valves
would "stifle the very creativity which [the] law is designed to
foster."
Stewart, 495 U. S., at 236. Fair use is such an
escape valve. It "allow[s] others to build upon" copyrighted
material, so as not to "put manacles upon" creative progress.
Campbell, 510 U. S., at 575 (internal quotation marks
omitted). In short, copyright's core value-promoting
creativity-sometimes demands a pass for copying.
To identify when that is so, the courts developed and Congress
later codified a multi-factored inquiry. As the majority describes,
see
ante, at 14, the current statute sets out four
non-exclusive considerations to guide courts. They are: (1) "the
purpose and character of the use" made of the copyrighted work,
"including whether such use is of a commercial nature"; (2) "the
nature of the copyrighted work"; (3) "the amount and substantiality
of the portion used in relation to the copyrighted work as a
whole"; and (4) "the effect of the use upon the potential market
for or value of the copyrighted work."17 U. S. C. §107.
Those factors sometimes point in different directions; if so, a
court must weigh them against each other. In doing so, we have
stated, courts should view the fourth factor-which focuses on the
copyright holder's economic interests-as the "most important." See
Harper & Row, Publishers, Inc. v.
Nation
Enterprises,
471 U.S.
539, 566 (1985).[
5] But the overall balance
cannot come out right unless each factor is assessed correctly.
This case, of course, is about (and only about) the first.
And that factor is distinctive: It is the only one that focuses
on what the copier's use of the original work accomplishes. The
first factor asks about the "character" of that use-its "main or
essential nature[,] esp[ecially] as strongly marked and serving to
distinguish." Webster's Third New International Dictionary 376
(1976). And the first factor asks about the "purpose" of the
use-the "object, effect, or result aimed at, intended, or
attained."
Id., at 1847. In that way, the first factor gives
the copier a chance to make his case. See P. Leval, Toward a Fair
Use Standard, 103 Harv. L. Rev. 1105, 1116 (1990) (describing
factor 1 as "the soul of " the "fair use defense"). Look, the
copier can say, at how I altered the original, and what I achieved
in so doing. Look at how (as Judge Leval's seminal article put the
point) the original was "used as raw material" and was "transformed
in the creation of new information, new aesthetics, new insights."
Id., at 1111. That is hardly the end of the fair-use inquiry
(commercialism, too, may bear on the first factor, and anyway there
are three factors to go), but it matters profoundly. Because when a
transformation of the original work has occurred, the user of the
work has made the kind of creative contribution that copyright law
has as its object.
Don't take it from me (or Judge Leval): The above is exactly
what this Court has held about how to apply factor 1. In
Campbell, our primary case on the topic, we stated that the
first factor's purpose-and-character test "central[ly]" concerns
"whether and to what extent the new work is 'transformative.' " 510
U. S., at 579 (quoting Leval 1111). That makes sense, we explained,
because "the goal of copyright, to promote science and the arts, is
generally furthered by the creation of transformative works." 510
U. S., at 579. We then expounded on when such a transformation
happens. Harking back to Justice Story, we explained that a "new
work" might "merely 'supersede[ ] the objects' of the original
creation"-meaning, that it does no more, and for no other end, than
the first work had.
Ibid. (quoting
Folsom v.
Marsh,
9 F. Cas. 342, 348 (No. 4,901) (CC Mass. 1841)). But
alternatively, the new work could "add[ ] something new, with a
further purpose or different character, altering the first with new
expression, meaning, or message." 510 U. S., at 579. Forgive me,
but given the majority's stance (see,
e.g.,
ante, at
33), that bears repeating: The critical factor 1 inquiry, we held,
is whether a new work alters the first with "new expression,
meaning, or message." The more it does so, the more transformative
the new work. And (here is the final takeaway) "the more
transformative the new work, the less will be the significance of
other factors, like commercialism, that may weigh against a finding
of fair use." 510 U. S., at 579. Under that approach, the
Campbell Court held, the rap group 2 Live Crew's
"transformative" copying of Roy Orbison's "Pretty Woman" counted in
favor of fair use.
Id., at 583. And that was so even though
the rap song was, as everyone agreed, recorded and later sold for
profit. See
id., at 573.
Just two Terms ago, in
Google, we made all the same
points. We quoted
Campbell in explaining that the factor 1
inquiry is "whether the copier's use 'adds something new, with a
further purpose or different character, altering' the copyrighted
work 'with new expression, meaning, or message.' " 593 U. S., at
___ (slip op., at 24). We again described "a copying use that adds
something new and important" as "transformative."
Ibid. We
reiterated that protecting transformative uses "stimulate[s]
creativity" and thus "fulfill[s] the objective of copyright law."
Ibid. (quoting Leval 1111). And then we gave an example.
Yes, of course, we pointed to Andy Warhol. (The majority claims not
to be embarrassed by this embarrassing fact because the specific
reference was to his Soup Cans, rather than his celebrity images.
But drawing a distinction between a "commentary on
consumerism"-which is how the majority describes his soup canvases,
ante, at 27-and a commentary on celebrity culture,
i.e., the turning of people into consumption items, is
slicing the baloney pretty thin.) Finally, the Court conducted the
first-factor inquiry it had described. Google had replicated Sun
Microsystems' computer code as part of a "commercial endeavor,"
done "for commercial profit." 593 U. S., at ___ (slip op., at 27).
No matter, said the Court. "[M]any common fair uses are
indisputably commercial."
Ibid. What mattered instead was
that Google had used Sun's code to make "something new and
important": a "highly creative and innovative" software platform.
Id., at ___-___ (slip op., at 24-25). The use of the code,
the Court held, was therefore "transformative" and "point[ed]
toward fair use."
Id., at ___, ___ (slip op., at 25,
28).
Campbell and
Google also illustrate the difference
it can make in the world to protect transformative works through
fair use. Easy enough to say (as the majority does, see
ante, at 36) that a follow-on creator should just pay a
licensing fee for its use of an original work. But sometimes
copyright holders charge an out-of-range price for licenses. And
other times they just say no. In
Campbell, for example,
Orbison's successor-in-interest turned down 2 Live Crew's request
for a license, hoping to block the rap take-off of the original
song. See 510 U. S., at 572-573. And in
Google, the parties
could not agree on licensing terms, as Sun insisted on conditions
that Google thought would have subverted its business model. See
593 U. S., at ___ (slip op., at 3). So without fair use, 2 Live
Crew's and Google's works-however new and important-might never
have been made or, if made, never have reached the public. The
prospect of that loss to "creative progress" is what lay behind the
Court's inquiry into transformativeness-into the expressive novelty
of the follow-on work (regardless whether the original creator
granted permission).
Id., at ___ (slip op., at 25); see
Campbell, 510 U. S., at 579.
Now recall all the ways Warhol, in making a Prince portrait from
the Goldsmith photo, "add[ed] something new, with a further purpose
or different character"-all the ways he "alter[ed] the [original
work's] expression, meaning, [and] message."
Ibid. The
differences in form and appearance, relating to "composition,
presentation, color palette, and media." 1 App. 227; see
supra, at 7-10. The differences in meaning that arose from
replacing a realistic-and indeed humanistic-depiction of the
performer with an unnatural, disembodied, masklike one. See
ibid. The conveyance of new messages about celebrity culture
and its personal and societal impacts. See
ibid. The
presence of, in a word, "transformation"-the kind of creative
building that copyright exists to encourage. Warhol's use, to be
sure, had a commercial aspect. Like most artists, Warhol did not
want to hide his works in a garret; he wanted to sell them. But as
Campbell and
Google both demonstrate (and as further
discussed below), that fact is nothing near the showstopper the
majority claims. Remember, the more transformative the work, the
less commercialism matters. See
Campbell, 510 U. S., at 579;
supra, at 14;
ante, at 18 (acknowledging the point,
even while refusing to give it any meaning). The dazzling
creativity evident in the Prince portrait might not get Warhol all
the way home in the fair-use inquiry; there remain other factors to
be considered and possibly weighed against the first one. See
supra, at 2, 10, 14. But the "purpose and character of
[Warhol's] use" of the copyrighted work-what he did to the
Goldsmith photo, in service of what objects-counts powerfully in
his favor. He started with an old photo, but he created a new new
thing.[
6]
II
The majority does not see it. And I mean that literally. There
is precious little evidence in today's opinion that the majority
has actually looked at these images, much less that it has engaged
with expert views of their aesthetics and meaning. Whatever new
expression Warhol added, the majority says, was not transformative.
See
ante, at 25. Apparently, Warhol made only "modest
alterations."
Ante, at 33. Anyone, the majority suggests,
could have "crop[ped], flatten[ed], trace[d], and color[ed] the
photo" as Warhol did.
Ante, at 8. True, Warhol portrayed
Prince "somewhat differently."
Ante, at 33. But the "degree
of difference" is too small: It consists merely in applying
Warhol's "characteristic style"-an aesthetic gloss, if you will-"to
bring out a particular meaning" that was already "available in
[Goldsmith's] photograph."
Ibid. So too, Warhol's commentary
on celebrity culture matters not at all; the majority is not
willing to concede that it even exists. See
ante, at 34
("even if such commentary is perceptible"). And as for the District
Court's view that Warhol transformed Prince from a "vulnerable,
uncomfortable person to an iconic, larger-than-life figure," the
majority is downright dismissive.
Ante, at 32. Vulnerable,
iconic-who cares? The silkscreen and the photo, the majority
claims, still have the same "essential nature."
Ante, at 25,
n. 14 (emphasis deleted).
The description is disheartening. It's as though Warhol is an
Instagram filter, and a simple one at that (
e.g.,
sepia-tinting). "What is all the fuss about?," the majority wants
to know. Ignoring reams of expert evidence-explaining, as every art
historian could explain, exactly what the fuss is about-the
majority plants itself firmly in the "I could paint that" school of
art criticism. No wonder the majority sees the two images as
essentially fungible products in the magazine market-publish this
one, publish that one, what does it matter? See
ante, at
22-23;
supra, at 10. The problem is that it
does
matter, for all the reasons given in the record and discussed
above. See
supra, at 9-10. Warhol based his silkscreen on a
photo, but fundamentally changed its character and meaning. In
belittling those creative contributions, the majority guarantees
that it will reach the wrong result.
Worse still, the majority maintains that those contributions,
even if significant, just would not matter. All of Warhol's
artistry and social commentary is negated by one thing: Warhol
licensed his portrait to a magazine, and Goldsmith sometimes
licensed her photos to magazines too. That is the sum and substance
of the majority opinion. Over and over, the majority incants that
"[b]oth [works] are portraits of Prince used in magazines to
illustrate stories about Prince"; they therefore both "share
substantially the same purpose"-meaning, a commercial one.
Ante, at 22-23, 38; see
ante, at 12-13, 27, n. 15,
33, 35. Or said otherwise, because Warhol entered into a licensing
transaction with Condé Nast, he could not get any help
from factor 1-regardless how transformative his image was. See,
e.g.,
ante, at 35 (Warhol's licensing "outweigh[s]"
any "new meaning or message" he could have offered). The majority's
commercialism-trumps-creativity analysis has only one way out. If
Warhol had used Goldsmith's photo to comment on or critique
Goldsmith's photo, he might have availed himself of that
factor's benefit (though why anyone would be interested in that
work is mysterious). See
ante, at 34. But because he instead
commented on
society-the dehumanizing culture of
celebrity-he is (go figure) out of luck.
From top-to-bottom, the analysis fails. It does not fit the
copyright statute. It is not faithful to our precedent. And it does
not serve the purpose both Congress and the Court have understood
to lie at the core of fair use: "stimulat[ing] creativity," by
enabling artists and writers of every description to build on prior
works.
Google, 593 U. S., at ___ (slip op., at 24). That is
how art, literature, and music happen; it is also how all forms of
knowledge advance. Even as the majority misconstrues the law, it
misunderstands-and threatens-the creative process.
Start with what the statute tells us about whether the factor 1
inquiry should disregard Warhol's creative contributions because he
licensed his work. (Sneak preview: It shouldn't.) The majority
claims the text as its strong suit, viewing our precedents' inquiry
into new expression and meaning as a faulty "paraphrase" of the
statutory language.
Ante, at 28-30. But it is the majority,
not
Campbell and
Google, that misreads
§107(1). First, the key term "character" plays little
role in the majority's analysis. See
ante, at 12-13, 22-23,
and n. 11, 29 (statements of central test or holding referring only
to "purpose"). And you can see why, given the counter-intuitive
meaning the majority (every so often) provides. See
ante, at
24-25, and n. 14. When referring to the "character" of what Warhol
did, the majority says merely that he "licensed Orange Prince to
Condé Nast for $10,000." See
ante, at 24. But
that reductionist view rids the term of most of its ordinary
meaning. "Character" typically refers to a thing's "main or
essential nature[,] esp[ecially] as strongly marked and serving to
distinguish." Webster's Third 376; see
supra, at 13. The
essential and distinctive nature of an artist's use of a work
commonly involves artistry-as it did here. See also
Campbell, 510 U. S., at 582, 588-589 (discussing the
expressive "character" of 2 Live Crew's rap). So the term
"character" makes significant everything the record contains-and
everything everyone (save the majority) knows-about the differences
in expression and meaning between Goldsmith's photo and Warhol's
silkscreen.
Second, the majority significantly narrows §107(1)'s
reference to "purpose" (thereby paralleling its constriction of
"character"). It might be obvious to you that artists have artistic
purposes. And surely it was obvious to the drafters of a law aiming
to promote artistic (and other kinds of ) creativity. But not to
the majority, which again cares only about Warhol's decision to
license his art. Warhol's purpose, the majority says, was just to
"depict Prince in [a] magazine stor[y] about Prince" in exchange
for money.
Ante, at 12-13. The majority spurns all that
mattered to the artist-evident on the face of his work-about
"expression, meaning, [and] message."
Campbell, 510 U. S.,
at 579;
Google, 593 U. S., at ___ (slip op., at 24). That
indifference to purposes beyond the commercial-for what an artist,
most fundamentally, wants to communicate-finds no support in
§107(1).[
7]
Still more, the majority's
commercialism-über-alles view of the factor 1
inquiry fits badly with two other parts of the fair-use provision.
To begin, take the preamble, which gives examples of uses often
thought fair: "criticism, comment, news reporting, teaching[,] . .
. scholarship, or research." §107. As we have
explained, an emphasis on commercialism would "swallow" those
uses-that is, would mostly
deprive them of fair-use
protection.
Campbell, 510 U. S., at 584. For the listed
"activities are generally conducted for profit in this country."
Ibid. (internal quotation marks omitted). "No man but a
blockhead," Samuel Johnson once noted, "ever wrote[ ] except for
money." 3 Boswell's Life of Johnson 19 (G. Hill ed. 1934). And
Congress of course knew that when it drafted the preamble.
Next, skip to the last factor in the fair-use test: "the effect
of the use upon the potential market for or value of the
copyrighted work." §107(4). You might think that when
Congress lists two different factors for consideration, it is
because the two factors are, well, different. But the majority
transplants factor 4 into factor 1. Recall that the majority
conducts a kind of market analysis: Warhol, the majority says,
licensed his portrait of Prince to a magazine that Goldsmith could
have licensed her photo to-and so may have caused her economic
harm. See
ante, at 22-23; see also
ante, at 19
(focusing on whether a follow-on work is a market "substitute" for
the original);
ante, at 4 (Gorsuch, J., concurring)
(describing the "salient point" as whether Warhol's "use involved
competition with Ms. Goldsmith's image"). That issue is no doubt
important in the fair-use inquiry. But it is the stuff of factor 4:
how Warhol's use affected the "value of " or "market for"
Goldsmith's photo. Factor 1 focuses on the other side of the
equation: the new expression, meaning, or message that may come
from someone else using the original. Under the statute, courts are
supposed to strike a balance between the two-and thus between
rewarding original creators and enabling others to build on their
works. That cannot happen when a court, Ã la the
majority, double-counts the first goal and ignores the second.
Is it possible I overstate the matter? I would like for that to
be true. And a puzzling aspect of today's opinion is that it
occasionally acknowledges the balance that the fair-use provision
contemplates. So, for example, the majority notes after reviewing
the relevant text that "the central question [the first factor]
asks" is whether the new work "adds something new" to the
copyrighted one.
Ante, at 15 (internal quotation marks
omitted). Yes, exactly. And in other places, the majority suggests
that a court should consider in the factor 1 analysis not merely
the commercial context but also the copier's addition of "new
expression," including new meaning or message.
Ante, at 12;
see
ante, at 18, 24-25, n. 13, 25, 32. In that way, the
majority opinion differs from Justice Gorsuch's concurrence, which
would exclude all inquiry into whether a follow-on work is
transformative. See
ante, at 2, 4. And it is possible lower
courts will pick up on that difference, and ensure that the
"newness" of a follow-on work will continue to play a significant
role in the factor 1 analysis. If so, I'll be happy to discover
that my "claims [have] not age[d] well."
Ante, at 36. But
that would require courts to do what the majority does not: make a
serious inquiry into the follow-on artist's creative contributions.
The majority's refusal to do so is what creates the oddity at the
heart of today's opinion. If "newness" matters (as the opinion
sometimes says), then why does the majority dismiss all the newness
Warhol added just because he licensed his portrait to
Condé Nast? And why does the majority insist more
generally that in a commercial context "convey[ing] a new meaning
or message" is "not enough for the first factor to favor fair use"?
Ante, at 35.
Certainly not because of our precedent-which conflicts with
nearly all the majority says. As explained earlier, this Court has
decided two important cases about factor 1. See
supra, at
14-16. In each, the copier had built on the original to make a
product for sale-so the use was patently commercial. And in each,
that fact made no difference, because the use was also
transformative. The copier, we held, had made a significant
creative contribution-had added real value. So in
Campbell,
we did not ask whether 2 Live Crew and Roy Orbison both meant to
make money by "including a catchy song about women on a record
album." But cf.
ante, at 12-13 (asking whether Warhol and
Goldsmith both meant to charge for "depict[ing] Prince in magazine
stories about Prince"). We instead asked whether 2 Live Crew had
added significant "new expression, meaning, [and] message"; and
because we answered yes, we held that the group's rap song did not
"merely supersede the objects of the original creation." 510 U. S.,
at 579 (internal quotation marks and alteration omitted).
Similarly, in
Google, we took for granted that Google (the
copier) and Sun (the original author) both meant to market software
platforms facilitating the same tasks-just as (in the majority's
refrain) Warhol and Goldsmith both wanted to market images
depicting the same subject. See 593 U. S., at ___, ___ (slip op.,
at 25, 27). "So what?" was our basic response. Google's copying had
enabled the company to make a "highly creative and innovative
tool," advancing "creative progress" and thus serving "the basic
constitutional objective of copyright."
Id., at ___ (slip
op., at 25) (internal quotation marks omitted). Search today's
opinion high and low, you will see no such awareness of how copying
can help produce valuable new works.
Nor does our precedent support the majority's strong distinction
between follow-on works that "target" the original and those that
do not.
Ante, at 35. (Even the majority does not claim that
anything in the text does so.) True enough that the rap song in
Campbell fell into the former category: 2 Live Crew urged
that its work was a parody of Orbison's song. But even in
discussing the value of parody,
Campbell made clear the
limits of targeting's importance. The Court observed that as the
"extent of transformation" increases, the relevance of targeting
decreases. 510 U. S., at 581, n. 14.
Google proves the
point. The new work there did not parody, comment on, or otherwise
direct itself to the old: The former just made use of the latter
for its own devices. Yet that fact never made an appearance in the
Court's opinion; what mattered instead was the "highly creative"
use Google had made of the copied code. That decision is on point
here. Would Warhol's work really have been more worthy of
protection if it had (somehow) "she[d] light" on Goldsmith's
photograph, rather than on Prince, his celebrity status, and
celebrity culture?
Ante, at 27. Would that Goldsmith-focused
work (whatever it might be) have more meaningfully advanced
creative progress, which is copyright's raison d'être,
than the work he actually made? I can't see how; more like the
opposite. The majority's preference for the directed work,
apparently on grounds of necessity, see
ante, at 27, 34-35,
again reflects its undervaluing of transformative copying as a core
part of artistry.
And there's the rub. (Yes, that's mostly Shakespeare.) As
Congress knew, and as this Court once saw, new creations come from
building on-and, in the process, transforming-those coming before.
Today's decision stymies and suppresses that process, in art and
every other kind of creative endeavor. The decision enhances a
copyright holder's power to inhibit artistic development, by
enabling her to block even the use of a work to fashion something
quite different. Or viewed the other way round, the decision
impedes non-copyright holders' artistic pursuits, by preventing
them from making even the most novel uses of existing materials. On
either account, the public loses: The decision operates to
constrain creative expression.[
8]
The effect, moreover, will be dramatic. Return again to Justice
Story, see
supra, at 11-12: "[I]n literature, in science and
in art, there are, and can be, few, if any, things" that are "new
and original throughout."
Campbell, 510 U. S., at 575
(quoting
Emerson, 8 F. Cas., at 619). Every work "borrows,
and must necessarily" do so. 510 U. S., at 575. Creators themselves
know that fact deep in their bones. Here is Mark Twain on the
subject: "The kern[e]l, the soul-let us go further and say the
substance, the bulk, the actual and valuable material" of creative
works-all are "consciously and unconsciously drawn from a million
outside sources." Letter from M. Twain to H. Keller, in 2 Mark
Twain's Letters 731 (1917); see also
id., at 732 (quoting
Oliver Wendell Holmes-no, not that one, his father the poet-as
saying "I have never originated anything altogether myself, nor met
anybody who had"). "[A]ppropriation, mimicry, quotation, allusion
and sublimated collaboration," novelist Jonathan Lethem has
explained, are "a kind of sine qua non of the creative act, cutting
across all forms and genres in the realm of cultural production."
The Ecstasy of Influence, in Harper's Magazine 61 (Feb. 2007). Or
as Mary Shelley once wrote, there is no such thing as "creating out
of [a] void." Frankenstein ix (1831).[
9]
Consider, in light of those authorial references, how the
majority's factor 1 analysis might play out in literature. And why
not start with the best? Shakespeare borrowed over and over and
over. See,
e.g., 8 Narrative and Dramatic Sources of
Shakespeare 351-352 (G. Bullough ed. 1975) ("Shakespeare was an
adapter of other men's tales and plays; he liked to build a new
construction on something given"). I could point to a whole slew of
works, but let's take Romeo and Juliet as an example. Shakespeare's
version copied most directly from Arthur Brooke's The Tragical
History of Romeus and Juliet, written a few decades earlier (though
of course Brooke copied from someone, and that person copied from
someone, and that person . . . going back
at least to Ovid's
story about Pyramus and Thisbe). Shakespeare took plot, characters,
themes, even passages: The friar's line to Romeo, "Art thou a man?
Thy form cries out thou art," appeared in Brooke as "Art thou a
man? The shape saith so thou art." Bullough 387. (Shakespeare was,
among other things, a good editor.) Of course Shakespeare also
added loads of genius, and so made the borrowed stories "uniquely
Shakespearian." G. Williams, Shakespeare's Basic Plot Situation, 2
Shakespeare Quarterly No. 4, p. 313 (Oct. 1951). But on the
majority's analysis? The two works-Shakespeare's and Brooke's-are
just two stories of star-crossed lovers written for commercial
gain. Shakespeare would not qualify for fair use; he would not even
come out ahead on factor 1.
And if you think that's just Shakespeare, here are a couple
more. (Once you start looking, examples are everywhere.) Lolita,
though hard to read today, is usually thought one of the greatest
novels of the 20th century. But the plotline-an adult man takes a
room as a lodger; embarks on an obsessive sexual relationship with
the preteen daughter of the house; and eventually survives her
death, remaining marked forever-appears in a story by Heinz von
Lichberg written a few decades earlier. Oh, and the girl's name is
Lolita in both versions. See generally M. Maar, The Two Lolitas
(2005). All that said, the two works have little in common
artistically; nothing literary critics admire in the second Lolita
is found in the first. But to the majority? Just two stories of
revoltingly lecherous men, published for profit. So even factor 1
of the fair-use inquiry would not aid Nabokov. Or take one of the
most famed adventure stories ever told. Here is the provenance of
Treasure Island, as Robert Louis Stevenson himself described
it:
"No doubt the parrot once belonged to Robinson Crusoe. No doubt
the skeleton is conveyed from [Edgar Allan] Poe. I think little of
these, they are trifles and details; and no man can hope to have a
monopoly of skeletons or make a corner in talking birds. . . . It
is my debt to Washington Irving that exercises my conscience, and
justly so, for I believe plagiarism was rarely carried farther. . .
. Billy Bones, his chest, the company in the parlor, the whole
inner spirit and a good deal of the material detail of my first
chapters-all were there, all were the property of Washington
Irving." My First Book-
Treasure Island, in 21 Syracuse
University Library Associates Courier No. 2, p. 84 (1986).
Odd that a book about pirates should have practiced piracy? Not
really, because tons of books do-and not many in order to "target"
or otherwise comment on the originals. "Thomas Mann, himself a
master of [the art,] called [it] 'higher cribbing.' " Lethem 59.
The point here is that most writers worth their salt steal other
writers' moves-and put them to other, often better uses. But the
majority would say, again and yet again in the face of such
transformative copying, "no factor 1 help and surely no fair
use."
Or how about music? Positively rife with copying of all kinds.
Suppose some early blues artist (W. C. Handy, perhaps?) had
copyrighted the 12-bar, three-chord form-the essential foundation
(much as Goldsmith's photo is to Warhol's silkscreen) of many blues
songs. Under the majority's view, Handy could then have
controlled-meaning, curtailed-the development of the genre. And
also of a fair bit of rock and roll. "Just another rendition of
12-bar blues for sale in record stores," the majority would say to
Chuck Berry (Johnny B. Goode), Bill Haley (Rock Around the Clock),
Jimi Hendrix (Red House), or Eric Clapton (Crossroads). Or to
switch genres, imagine a pioneering classical composer (Haydn?) had
copyrighted the three-section sonata form. "One more piece built on
the same old structure, for use in concert halls," the majority
might say to Mozart and Beethoven and countless others: "Sure, some
new notes, but the backbone of your compositions is identical."
And then, there's the appropriation of those notes, and
accompanying words, for use in new and different ways. Stravinsky
reportedly said that great composers do not imitate, but instead
steal. See P. Yates, Twentieth Century Music 41 (1967). At any
rate, he would have known. He took music from all over-from Russian
folk melodies to Schoenberg-and made it inimitably his own. And
then-as these things go-his music became a source for others.
Charlie Parker turned The Rite of Spring into something of a jazz
standard: You can still hear the Stravinsky lurking, but jazz
musicians make the composition a thing of a different kind. And
popular music? I won't point fingers, but maybe rock's only Nobel
Laureate and greatest-ever lyricist is known for some
appropriations? See M. Gilmore, The Rolling Stone Interview,
Rolling Stone, Sept. 27, 2012, pp. 51, 81.[
10]
He wouldn't be alone. Here's what songwriter Nick Cave (he of the
Bad Seeds) once said about how music develops:
"The great beauty of contemporary music, and what gives it its
edge and vitality, is its devil-may-care attitude toward
appropriation-everybody is grabbing stuff from everybody else,
all the time. It's a feeding frenzy of borrowed ideas that
goes toward the advancement of rock music-the great artistic
experiment of our era." The Red Hand Files (Apr. 2020) (online
source archived at https://www.supremecourt.gov).
But not as the majority sees the matter. Are these guys making
money? Are they appropriating for some different reason than to
critique the thing being borrowed? Then they're "shar[ing] the
objectives" of the original work, and will get no benefit from
factor 1, let alone protection from the whole fair-use test.
Ante, at 24.
Finally, back to the visual arts, for while Warhol may have been
the master appropriator within that field, he had plenty of
company; indeed, he worked within an established tradition going
back centuries (millennia?). The representatives of three giants of
modern art (you may know one for his use of comics) describe the
tradition as follows: "[T]he use and reuse of existing imagery" are
"part of art's lifeblood"-"not just in workaday practice or
fledgling student efforts, but also in the revolutionary moments of
art history." Brief for Robert Rauschenberg, Roy Lichtenstein, and
Joan Mitchell Foundations et al. as
Amici Curiae 6.
Consider as one example the reclining nude. Probably the first
such figure in Renaissance art was Giorgione's Sleeping Venus.
(Note, though, in keeping with the "nothing comes from nothing"
theme, that Giorgione apparently modeled his canvas on a woodcut
illustration by Francesco Colonna.) Here is Giorgione's
painting:
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:
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:
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.
Velázquez, Pope
Innocent X,c. 1650, oil on canvas
Francis Bacon, Study After
Velazquez's Portrait of PopeInnocent 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.