Kagan, J., dissenting
use. That answer comports with the copyright statute, its underlying policy, and our precedent concerning the two. Under established copyright law (until today), Warhol’s addition of important “new expression, meaning, [and] message” counts in his favor in the fair-use inquiry. Campbell, 510 U. S., at 579.
Start by asking a broader question: Why do we have “fair use” anyway? The majority responds that while copyrights encourage the making of creative works, fair use promotes their “public availability.” Ante, at 13 (internal quotation marks omitted). But that description sells fair use far short. Beyond promoting “availability,” fair use itself advances creativity and artistic progress. See Campbell, 510 U. S., at 575, 579 (fair use is “necessary to fulfill copyright’s very purpose”—to “promote science and the arts”). That is because creative work does not happen in a vacuum. “Nothing comes from nothing, nothing ever could,” said songwriter Richard Rodgers, maybe thinking not only about love and marriage but also about how the Great American Songbook arose from vaudeville, ragtime, the blues, and jazz.[1] This Court has long understood the point—has gotten how new art, new invention, and new knowledge arise from existing works. Our seminal opinion on fair use quoted the illustrious Justice Story:
“In truth, in literature, in science and in art, there are, and can be, few, if any, things, which … are strictly
- ↑ In the spirit of this opinion, I might have quoted that line without further ascription. But lawyers believe in citations, so I will tell you that the Rodgers lyric (which is, of course, from the Sound of Music) is used—to make the same point I do—in Rob Kapilow’s Listening for America: Inside the Great American Songbook From Gershwin to Sondheim (2019). One of that book’s themes is that even the most “radically new” music builds on existing works—or as Irving Berlin put the point, “songs make history, and history makes songs.” Id., at xv, 2. And so too for every other form of art. See infra, at 26–34 (making this point at greater length—and with pictures!).
