Kagan, J., dissenting
Still more, the majority’s commercialism-über-alles view of the factor 1 inquiry fits badly with two other parts of the fair-use provision. To begin, take the preamble, which gives examples of uses often thought fair: “criticism, comment, news reporting, teaching[,] … scholarship, or research.” §107. As we have explained, an emphasis on commercialism would “swallow” those uses—that is, would mostly deprive them of fair-use protection. Campbell, 510 U. S., at 584. For the listed “activities are generally conducted for profit in this country.” Ibid. (internal quotation marks omitted). “No man but a blockhead,” Samuel Johnson once noted, “ever wrote[] except for money.” 3 Boswell’s Life of Johnson 19 (G. Hill ed. 1934). And Congress of course knew that when it drafted the preamble.
Next, skip to the last factor in the fair-use test: “the effect of the use upon the potential market for or value of the copyrighted work.” §107(4). You might think that when Congress lists two different factors for consideration, it is because the two factors are, well, different. But the majority transplants factor 4 into factor 1. Recall that the majority conducts a kind of market analysis: Warhol, the majority says, licensed his portrait of Prince to a magazine that Goldsmith could have licensed her photo to—and so may have caused her economic harm. See ante, at 22–23; see also ante, at 19 (focusing on whether a follow-on work is a market “substitute” for the original); ante, at 4 (Gorsuch, J., concurring) (describing the “salient point” as whether Warhol’s “use involved competition with Ms. Goldsmith’s
about infringement, and in a separate sentence, is that a fair use doesn’t count as one.) The statute—that is, the actual one—thus focuses attention on what the copier does with the underlying work. So when the statute more particularly asks (in factor 1) about the “purpose and character of the use”—meaning again, the “use made of [the copyrighted] work”—it is asking to what end, and with what result, the copier made use of the original. And that necessarily involves the issue of transformation—more specifically here, how Warhol’s silkscreen transformed Goldsmith’s photo.
