Elena Kagan
Role at the time: Associate justice writing in dissent
Defended or excused
Statement summary
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.”
Read the original text (opens in a new tab)Supreme Court opinions in Andy Warhol Foundation v. Goldsmith · Supreme Court of the United StatesMajority pages 12-38; Kagan dissent; Gorsuch concurrence
Why we used 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.