Gorsuch, J., concurring
SUPREME COURT OF THE UNITED STATES
No. 21–869
ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS, INC., PETITIONER v. LYNN GOLDSMITH, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[May 18, 2023]
Justice Gorsuch, with whom Justice Jackson joins, concurring.
The question before us is a narrow one of statutory interpretation. It concerns the meaning of one of four factors Congress has instructed courts to consult when a party invokes the affirmative defense of “fair use” to a claim of copyright infringement. The statutory factor in question requires courts to consider “the purpose and character of the use.” 17 U. S. C. §107(1). The parties disagree which “purpose” and “character” counts.
On the Foundation’s telling, the statute requires courts to focus on the purpose the creator had in mind when producing his work and the character of his resulting work. So what matters in this case is that Andy Warhol intended to apply a “ ‘new aesthetic’ ” to Lynn Goldsmith’s photograph and the character of his work “ ‘transformed’ ” Prince from the “ ‘vulnerable, uncomfortable person’ ” depicted in Ms. Goldsmith’s photograph into “ ‘an iconic, larger-than-life figure.’ ” Ante, at 9–10; post, at 7–10, 18 (Kagan, J., dissenting). Because the purpose and character of Mr. Warhol’s work is so different from Ms. Goldsmith’s, the Foundation insists, the first statutory factor points in favor of finding a fair-use affirmative defense.
By contrast, on Ms. Goldsmith’s reading of the law and
