Kagan's dissent is particularly thought provoking. While the majority ruled that the use was not sufficiently transformative because it was licensed to publicat

Kagan's dissent is particularly thought provoking. While the majority ruled that the use was not sufficiently transformative because it was licensed to publications in the same manner as the original photograph, Kagan believes that Conde Nast could have chosen either photo to license, and that they chose the Warhol not as a substitute, but a work of its own. "The majority holds that because Warhol licensed his work to a magazine—as Goldsmith sometimes also did—the first factor goes against him. It does not matter how different the Warhol is from the original photo—how much “new expression, meaning, or message” he added. It does not matter that the silkscreen and the photo do not have the same aesthetic characteristics and do not convey the same meaning. It does not matter that because of those dissimilarities, the magazine publisher did not view the one as a substitute for the other. All that matters is that Warhol and the publisher entered into a licensing transaction, similar to one Goldsmith might have done. Because the artist had such a commercial purpose, all the creativity in the world could not save him. ."