Page:Andy Warhol Foundation v. Goldsmith.pdf/36

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

Opinion of the Court

The dissent commits the same interpretive error as AWF: It focuses on Campbell’s paraphrase, yet ignores the rest of that decision’s careful reasoning. Indeed, upon reading the dissent, someone might be surprised to learn that Campbell was about parody at all. Had expert testimony confirmed the obvious fact that 2 Live Crew’s “Pretty Woman” differed in aesthetics and meaning from Orbison’s original, that would have been the end of the dissent’s analysis. See post, at 14–17 (opinion of Kagan, J.). Not the Court’s, however. Campbell was the culmination of a long line of cases and scholarship about parody’s claim to fairness in borrowing. “For purposes of copyright law,” the Court explained, “the heart of any parodist’s claim to quote from existing material is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works.” 510 U. S., at 580. Campbell thus drew a nuanced distinction between parody and satire: While parody cannot function unless it conjures up the original, “satire can stand on its own two feet and so requires justification for … borrowing.” Id., at 580–581. The objective meaning or message of 2 Live Crew’s song was relevant to this inquiry into the reasons for copying, but any “new expression, meaning, or message” was not the test.^[1]

What role meaning or message played in the Court of Appeals’ analysis here is not entirely clear. The court correctly

↑ The dissent makes a similar mistake with Google: It fails to read the decision as a whole. So while the dissent claims that the “[Google] Court would have told this one to go back to school,” it might be easier just to go back and read Google. Post, at 2 (opinion of Kagan, J.). The Court did not hold that any secondary use that is innovative, in some sense, or that a judge or Justice considers to be creative progress consistent with the constitutional objective of copyright, is thereby transformative. The Court instead emphasized that Google used Sun’s code in a “distinct and different” context, and “only insofar as needed” or “necessary” to achieve Google’s new purpose. Google, 593 U. S., at ___ (slip op., at 26); see also n. 8, supra. In other words, the same concepts of use and justification that the Court relied on in Google are the ones that it applies today.

[1] The dissent makes a similar mistake with Google: It fails to read the decision as a whole. So while the dissent claims that the “[Google] Court would have told this one to go back to school,” it might be easier just to go back and read Google. Post, at 2 (opinion of Kagan, J.). The Court did not hold that any secondary use that is innovative, in some sense, or that a judge or Justice considers to be creative progress consistent with the constitutional objective of copyright, is thereby transformative. The Court instead emphasized that Google used Sun’s code in a “distinct and different” context, and “only insofar as needed” or “necessary” to achieve Google’s new purpose. Google, 593 U. S., at ___ (slip op., at 26); see also n. 8, supra. In other words, the same concepts of use and justification that the Court relied on in Google are the ones that it applies today.

[1]