Gorsuch, J., concurring
under the Second Circuit’s approach, the first fair-use factor requires courts to assess the purpose and character of the challenged use. Ante, at 21. The Foundation now owns Mr. Warhol’s image of Prince and it recently sought to license that image to a magazine looking for a depiction of Prince to accompany an article about Prince. Ibid. Ms. Goldsmith seeks to license her copyrighted photograph to exactly these kinds of buyers. And because the purpose and character of the Foundation’s challenged use and the purpose and character of her own protected use overlap so completely, Ms. Goldsmith argues that the first statutory factor does not support a fair-use affirmative defense.
As I see it, the second view of the law is the better one. Nothing in the copyright statute calls on judges to speculate about the purpose an artist may have in mind when working on a particular project. Nothing in the law requires judges to try their hand at art criticism and assess the aesthetic character of the resulting work. Instead, the first statutory fair-use factor instructs courts to focus on “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” §107(1) (emphases added). By its terms, the law trains our attention on the particular use under challenge. And it asks us to assess whether the purpose and character of that use is different from (and thus complements) or is the same as (and thus substitutes for) a copyrighted work. It’s a comparatively modest inquiry focused on how and for what reason a person is using a copyrighted work in the world, not on the moods of any artist or the aesthetic quality of any creation.
To my mind, three contextual clues confirm that this reading of the statutory text is the correct one.
First, the statutory preamble to all four fair-use factors instructs courts to assess whether the person asserting a fair-use defense seeks to “use” a copyrighted work “for purposes such as criticism, comment, news reporting, teaching
