Page:Andy Warhol Foundation v. Goldsmith.pdf/34

28 AWF contends, however, that the purpose and character of its use of Goldsmith’s photograph weighs in favor of fair use because Warhol’s silkscreen image of the photograph, like the Campbell’s Soup Cans series, has a new meaning or message. The District Court, for example, understood the Prince Series works to portray Prince as “an iconic, larger-than-life figure.” 382 F. Supp. 3d, at 326. AWF also asserts that the works are a comment on celebrity. In particular, “Warhol’s Prince Series conveys the dehumanizing nature of celebrity.” Brief for Petitioner 44. According to AWF, that new meaning or message, which the Court of Appeals ignored, makes the use “transformative” in the fair use sense. See id., at 44–48. We disagree.

Campbell did describe a transformative use as one that “alter[s] the first [work] with new expression, meaning, or message.” 510 U. S., at 579; see also Google, 593 U. S., at ___ (slip op., at 24). That description paraphrased Judge Leval’s law review article, which referred to “new information, new aesthetics, new insights and understandings.” Leval 1111. (Judge Leval contrasted such additions with secondary uses that “merely repackag[e]” the original. Ibid.) But Campbell cannot be read to mean that §107(1) weighs in favor of any use that adds some new expression, meaning, or message.

Otherwise, “transformative use” would swallow the copyright owner’s exclusive right to prepare derivative works. Many derivative works, including musical arrangements, film and stage adaptions, sequels, spinoffs, and others that “recast, transfor[m] or adap[t]” the original, §101, add new expression, meaning or message, or provide new information, new aesthetics, new insights and understandings. That is an intractable problem for AWF’s interpretation of transformative use. The first fair use factor would not