Opinion of the Court
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.[1]
The foregoing does not mean, however, that derivative works borrowing heavily from an original cannot be fair
- ↑ 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 character 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?
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.
