Kagan, J., dissenting
come out right unless each factor is assessed correctly. This case, of course, is about (and only about) the first.
And that factor is distinctive: It is the only one that focuses on what the copier’s use of the original work accomplishes. The first factor asks about the “character” of that use—its “main or essential nature[,] esp[ecially] as strongly marked and serving to distinguish.” Webster’s Third New International Dictionary 376 (1976). And the first factor asks about the “purpose” of the use—the “object, effect, or result aimed at, intended, or attained.” Id., at 1847. In that way, the first factor gives the copier a chance to make his case. See P. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1116 (1990) (describing factor 1 as “the soul of” the “fair use defense”). Look, the copier can say, at how I altered the original, and what I achieved in so doing. Look at how (as Judge Leval’s seminal article put the point) the original was “used as raw material” and was “transformed
owner”). The majority asserts that it is “aware of no authority for the proposition” that the fourth factor can thus protect against unlicensed film adaptations, insisting that the first factor must do (or at least share in) the work. Ante, at 29, n. 17; see ante, at 16, 28–29, 36. But Google is the “authority for the proposition”: That’s just what it said, in so many words. And anyway, the majority’s own first-factor test, applied consistently, would favor, not stop, the freeloading filmmaker. As you’ve seen (and I’ll discuss below), that test boils down to whether a follow-on work serves substantially the same commercial purpose as the original—here, “depict[ing] Prince in magazine stories about Prince.” Ante, at 12–13; see ante, at 22–23, and n. 11, 27, n. 15, 33, 35. A film adaptation doesn’t fit that mold: The filmmaker (unlike Warhol, in the majority’s view) wants to reach different buyers, in different markets, consuming different products. The majority at one point suggests it might have some different factor 1 test in its back pocket to deal with this problem. See ante, at 35, n. 22. But assuming the majority’s approach, as stated repeatedly in its opinion, is truly the majority’s approach, factor 1 won’t help the author in the book-to-film situation. Under that approach, it is the fourth factor, not the first, which has to “take[] care of derivative works like book-to-film adaptations.” Ante, at 29, n. 17. It’s a good thing the majority errs in believing that the fourth factor isn’t up to the job.
