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ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC. v. GOLDSMITH

Opinion of the Court

cal 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.^[1]

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”).

↑ The authors of the Copyright Act of 1976 included the language, “ ‘whether such use is of a commercial nature or is for non-profit educational 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).

[1] The authors of the Copyright Act of 1976 included the language, “ ‘whether such use is of a commercial nature or is for non-profit educational 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).

[1]