Page:Andy Warhol Foundation v. Goldsmith.pdf/46

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, with whom joins, concurring.

The question before us is a narrow one of statutory interpretation. It concerns the meaning of one of four factors Congress has instructed courts to consult when a party invokes the affirmative defense of “fair use” to a claim of copyright infringement. The statutory factor in question requires courts to consider “the purpose and character of the use.” 17 U. S. C. §107(1). The parties disagree which “purpose” and “character” counts.

On the Foundation’s telling, the statute requires courts to focus on the purpose the creator had in mind when producing his work and the character of his resulting work. So what matters in this case is that Andy Warhol intended to apply a “ ‘new aesthetic’ ” to Lynn Goldsmith’s photograph and the character of his work “ ‘transformed’ ” Prince from the “ ‘vulnerable, uncomfortable person’ ” depicted in Ms. Goldsmith’s photograph into “ ‘an iconic, larger-than-life figure.’ ” ;, (, dissenting). Because the purpose and character of Mr. Warhol’s work is so different from Ms. Goldsmith’s, the Foundation insists, the first statutory factor points in favor of finding a fair-use affirmative defense.

By contrast, on Ms. Goldsmith’s reading of the law and