Opinion of the Court
in magazines to illustrate stories about Prince.[1] Such “environment[s]” are not “distinct and different.” Google, 593
- ↑ 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.
