Kagan says Warhol's purpose and character count powerfully in his favor
Elena KaganAssociate justice writing in dissent
Kagan argues that Warhol's use of Goldsmith's photo counts powerfully in his favor under the purpose-and-character inquiry.
“But the “purpose and character of [Warhol’s] use” of the copyrighted work—what he did to the Goldsmith photo, in service of what objects—counts powerfully in his favor. He started with an old photo, but he created a new new thing.”
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Where this statement fits
Warhol's Prince image: Sotomayor and Kagan split over fair use
The Supreme Court held that the first fair-use factor favored Lynn Goldsmith over the Andy Warhol Foundation's 2016 commercial magazine license of Orange Prince. Sonia Sotomayor's majority and Elena Kagan's dissent disagree over the weight of the artwork's transformation in meaning.
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The Court considers the first fair-use factor for the Foundation's 2016 commercial magazine license, rather than every use of the Prince Series.
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Kagan acknowledges that Warhol's use had a commercial aspect.
After the quotation
The dissent next criticizes the majority's view of the images.
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Why this label?
The conduct under scrutiny is the Foundation's 2016 Orange Prince magazine license and its first-factor fair-use defense. Kagan supports that defense by arguing that significant transformation should favor the copier under the first factor.
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Read the full caseSotomayor rejects the Foundation's first-factor defense for the Orange Prince license
“Even though Orange Prince adds new expression to Goldsmith’s photograph, as the District Court found, this Court agrees with the Court of Appeals that, in the context of the challenged use, the first fair use factor still favors Goldsmith.”Read statement
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The Dispute Index. "Kagan says Warhol's purpose and character count powerfully in his favor". First published: 2026-10-25. Last updated: 2026-10-25. https://disputeindex.com/events/6725-kagan-argues-that-warhol-s-use-of-goldsmith