Page:Andy Warhol Foundation v. Goldsmith.pdf/86

Rh —to what the borrower has made out of existing materials. That inquiry recognizes the value in using existing materials to fashion something new. And so too, this Court—from Justice Story’s time to two Terms ago—has known that it is through such iterative processes that knowledge accumulates and art flourishes. But not anymore. The majority’s decision is no “continuation” of “existing copyright law.” In declining to acknowledge the importance of transformative copying, the Court today, and for the first time, turns its back on how creativity works.

And the workings of creativity bring us back to Andy Warhol. For Warhol, as this Court noted in Google, is the very embodiment of transformative copying. He is proof of concept—that an artist working from a model can create important new expression. Or said more strongly, that appropriations can help bring great art into being. Warhol is a towering figure in modern art not despite but because of his use of source materials. His work—whether Soup Cans and Brillo Boxes or Marilyn and Prince—turned something not his into something all his own. Except that it also became all of ours, because his work today occupies a significant place not only in our museums but in our wider artistic culture. And if the majority somehow cannot see it—well, that’s what evidentiary records are for. The one in this case contained undisputed testimony, and lots of it, that Warhol’s Prince series conveyed a fundamentally different idea, in a fundamentally different artistic style, than the photo he started from. That is not the end of the fair-use inquiry. The test, recall, has four parts, with one focusing squarely on Goldsmith’s interests. But factor 1 is supposed to measure what Warhol has done. Did his “new work” “add[] something new, with a further purpose or different character”? Campbell, 510 U. S., at 579. Did it “alter[] the first with new expression, meaning, or message”? Ibid. It did,