Kagan, J., dissenting
ther discussed below), that fact is nothing near the showstopper the majority claims. Remember, the more transformative the work, the less commercialism matters. See Campbell, 510 U. S., at 579; supra, at 14; ante, at 18 (acknowledging the point, even while refusing to give it any meaning). The dazzling creativity evident in the Prince portrait might not get Warhol all the way home in the fair-use inquiry; there remain other factors to be considered and possibly weighed against the first one. See supra, at 2, 10, 14. But the “purpose and character of [Warhol’s] use” of the copyrighted work—what he did to the Goldsmith photo, in service of what objects—counts powerfully in his favor. He started with an old photo, but he created a new new thing.[1]
II
The majority does not see it. And I mean that literally. There is precious little evidence in today’s opinion that the majority has actually looked at these images, much less that it has engaged with expert views of their aesthetics and meaning. Whatever new expression Warhol added, the majority says, was not transformative. See ante, at 25. Apparently, Warhol made only “modest alterations.” Ante, at 33. Anyone, the majority suggests, could have “crop[ped], flatten[ed], trace[d], and color[ed] the photo” as Warhol did. Ante, at 8. True, Warhol portrayed Prince “somewhat differently.” Ante, at 33. But the “degree of difference” is too small: It consists merely in applying Warhol’s “characteristic style”—an aesthetic gloss, if you will—“to bring out a particular meaning” that was already “available in [Goldsmith’s] photograph.” Ibid. So too, Warhol’s commentary on celebrity culture matters not at all; the majority is not willing to concede that it even exists. See ante, at 34 (“even
- ↑ I have to admit, I stole that last phrase from Michael Lewis’s The New New Thing: A Silicon Valley Story (2014). I read the book some time ago, and the phrase stuck with me (as phrases often do). I wouldn’t have thought of it on my own.
