Page:Andy Warhol Foundation v. Goldsmith.pdf/71

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ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC. v. GOLDSMITH

Kagan, J., dissenting

rids the term of most of its ordinary meaning. “Character” typically refers to a thing’s “main or essential nature[,] esp[ecially] as strongly marked and serving to distinguish.” Webster’s Third 376; see supra, at 13. The essential and distinctive nature of an artist’s use of a work commonly involves artistry—as it did here. See also Campbell, 510 U. S., at 582, 588–589 (discussing the expressive “character” of 2 Live Crew’s rap). So the term “character” makes significant everything the record contains—and everything everyone (save the majority) knows—about the differences in expression and meaning between Goldsmith’s photo and Warhol’s silkscreen.

Second, the majority significantly narrows §107(1)’s reference to “purpose” (thereby paralleling its constriction of “character”). It might be obvious to you that artists have artistic purposes. And surely it was obvious to the drafters of a law aiming to promote artistic (and other kinds of) creativity. But not to the majority, which again cares only about Warhol’s decision to license his art. Warhol’s purpose, the majority says, was just to “depict Prince in [a] magazine stor[y] about Prince” in exchange for money. Ante, at 12–13. The majority spurns all that mattered to the artist—evident on the face of his work—about “expression, meaning, [and] message.” Campbell, 510 U. S., at 579; Google, 593 U. S., at ___ (slip op., at 24). That indifference to purposes beyond the commercial—for what an artist, most fundamentally, wants to communicate—finds no support in §107(1).^[1]

↑ The majority seeks some statutory backing in what it describes as §107’s reference to the “specific ‘use’ ” of a work “alleged to be ‘an infringement.’ ” Ante, at 20; see also ante, at 2, 4 (Gorsuch, J., concurring). Because the challenged use here is a licensing (so says the majority), all that matters is that Goldsmith engaged in similar commercial transactions. But the majority is both rewriting and splicing the statute. The key part of the statute simply asks whether the “use made of a [copyrighted] work” is fair. (The term “alleged infringement,” which the majority banks on, nowhere exists in the text; indeed, all the statute says

[p20-1] The majority seeks some statutory backing in what it describes as §107’s reference to the “specific ‘use’ ” of a work “alleged to be ‘an infringement.’ ” Ante, at 20; see also ante, at 2, 4 (Gorsuch, J., concurring). Because the challenged use here is a licensing (so says the majority), all that matters is that Goldsmith engaged in similar commercial transactions. But the majority is both rewriting and splicing the statute. The key part of the statute simply asks whether the “use made of a [copyrighted] work” is fair. (The term “alleged infringement,” which the majority banks on, nowhere exists in the text; indeed, all the statute says

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