Page:Andy Warhol Foundation v. Goldsmith.pdf/31

Rh Taken together, these two elements—that Goldsmith’s photograph and AWF’s 2016 licensing of Orange Prince share substantially the same purpose, and that AWF’s use of Goldsmith’s photo was of a commercial nature—counsel against fair use, absent some other justification for copying. That is, although a use’s transformativeness may outweigh its commercial character, here, both elements point in the same direction.

The foregoing does not mean, however, that derivative works borrowing heavily from an original cannot be fair