Kagan, J., dissenting
new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.” Id., at 575 (quoting Emerson v. Davies, 8 F. Cas. 615, 619 (No. 4,436) (CC Mass. 1845)).
Because that is so, a copyright regime with no escape valves would “stifle the very creativity which [the] law is designed to foster.” Stewart, 495 U. S., at 236. Fair use is such an escape valve. It “allow[s] others to build upon” copyrighted material, so as not to “put manacles upon” creative progress. Campbell, 510 U. S., at 575 (internal quotation marks omitted). In short, copyright’s core value—promoting creativity—sometimes demands a pass for copying.
To identify when that is so, the courts developed and Congress later codified a multi-factored inquiry. As the majority describes, see ante, at 14, the current statute sets out four non-exclusive considerations to guide courts. They are: (1) “the purpose and character of the use” made of the copyrighted work, “including whether such use is of a commercial nature”; (2) “the nature of the copyrighted work”; (3) “the amount and substantiality of the portion used in relation to the copyrighted work as a whole”; and (4) “the effect of the use upon the potential market for or value of the copyrighted work.” 17 U. S. C. §107. Those factors sometimes point in different directions; if so, a court must weigh them against each other. In doing so, we have stated, courts should view the fourth factor—which focuses on the copyright holder’s economic interests—as the “most important.” See Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539, 566 (1985).[1] But the overall balance cannot
- ↑ The fourth factor has, to use the majority’s repeated example, forced many a filmmaker to pay for adapting books into movies—as we noted two Terms ago. See Google LLC v. Oracle America, Inc., 593 U. S. ___, ___ (2021) (slip op., at 30) (explaining that film adaptations may founder on “[t]he fourth statutory factor” because “[m]aking a film of an author’s book” may result in “potential or presumed losses to the copyright
