Kagan, J., dissenting
no such awareness of how copying can help produce valuable new works.
Nor does our precedent support the majority’s strong distinction between follow-on works that “target” the original and those that do not. Ante, at 35. (Even the majority does not claim that anything in the text does so.) True enough that the rap song in Campbell fell into the former category: 2 Live Crew urged that its work was a parody of Orbison’s song. But even in discussing the value of parody, Campbell made clear the limits of targeting’s importance. The Court observed that as the “extent of transformation” increases, the relevance of targeting decreases. 510 U. S., at 581, n. 14. Google proves the point. The new work there did not parody, comment on, or otherwise direct itself to the old: The former just made use of the latter for its own devices. Yet that fact never made an appearance in the Court’s opinion; what mattered instead was the “highly creative” use Google had made of the copied code. That decision is on point here. Would Warhol’s work really have been more worthy of protection if it had (somehow) “she[d] light” on Goldsmith’s photograph, rather than on Prince, his celebrity status, and celebrity culture? Ante, at 27. Would that Goldsmith-focused work (whatever it might be) have more meaningfully advanced creative progress, which is copyright’s raison d’être, than the work he actually made? I can’t see how; more like the opposite. The majority’s preference for the directed work, apparently on grounds of necessity, see ante, at 27, 34–35, again reflects its undervaluing of transformative copying as a core part of artistry.
And there’s the rub. (Yes, that’s mostly Shakespeare.) As Congress knew, and as this Court once saw, new creations come from building on—and, in the process, transforming—those coming before. Today’s decision stymies and suppresses that process, in art and every other kind of creative endeavor. The decision enhances a copyright holder’s power to inhibit artistic development, by enabling her to
