Gorman presents series of copyright cases and points to the discrepancy in the decisions in evaluating copyrightability. He argues such discrepancy is caused by the Court’s aesthetic determination or “value judgments” which often is “badly done and unsupportable.” He observes the history and pattern of copyright courts’ decisions regarding three areas of copyright law: determination of authorship, Visual Artists’ Rights Act of 1990, and fair use. With judgments on authorship, with original contribution at the heart of the issue, Gorman recognizes courts need to rely on practicing judicial restraint. Ever since Feist v. Rural, inconsistent standards of creative input, applied and interpreted differently by the each court, have created confusion and unpredictability in the courts. Three different standards are “minimal creativity,” “substantial creativity,” and “gross creativity." These applications vary with the nature of the court and also whether the nature of the work is original or a derivative of, such standards create no consistency in the way copyright decisions are written. Gorman argues since the statue, the Constitution and the Copyright Act, does not place a clause of “originality” and the confusion is created by courts’ “abuse” in making aesthetic standards, which creates more difficulty in judicial decisionmaking. With issues regarding VASA and fair use, he recognizes the necessity of aesthetic determination, in part, for the statute requires such determinations. With VASA, the law requires making determination in quality of the artists, for the heart of matter is to outlaw “distortion, mutilation, or modifications” of the work. Gorman argues lastly with in regards to fair use that the focus of the courts has been whether the artist has made a “transformative” use of the copyrighted work, and because the decisions in the past have been heavily reflecting the artistic values and tastes of the judges, such aesthetic determinations have been inconsistent and futile but it becomes necessary inherently due because Copyright Act requires such determinations. Gorman concludes at the end that aesthetic judgments are sometimes an abuse and sometimes a necessity, but so far in that the aesthetic determination is built into the statute given its ambiguities.

In prescription to the problem, he proposes different level of copyright protection depending on the creative input displayed by the work. Also in determining artistic status of works, courts should rely not on their aesthetic decisions, but opinions of professionals. Lastly in determination “transformative” change in the copyrighted work, the new work should be “altered in substance” as to stand on its own to show “independent creativity.”

The article relates directly to my topic and showcases how through time the aesthetic determinations, whether necessary or not, have failed to create a consistent set of copyright standards. This will provide great support my thesis in illustrating how something as rigid as the law, should not be based heavily on thoughts subjective and variable as aesthetic determinations.