Page:Andy Warhol Foundation v. Goldsmith.pdf/26

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

Opinion of the Court

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.^[1]

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

↑ 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).

[1] 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).

[1]