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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.
Burrow-Giles Lithographic Company v. Sarony. 111 U.S. 53; 4 S. Ct. 279; 28 L. Ed. 349; 1884 U.S. LEXIS 1757
This landmark Supreme Court case rose about when Burrow-Giles lithographic company when Napoleon Sarony, a photographer of “Oscar Wilde No. 18,” sued the company for copyright infringement when it distributed lithographs of the photography without author’s consent and permission. The Company’s main argument was that photographs are products of a mechanical process, and is therefore not an art, and are not protected under article I, section 8, clause 8 of the United States Constitution—photographs are not produced under authorship as other means of art, such as writing and painting, are. Supreme Court concludes that Congress has the constitutional power to extend copyright protection to new emerging medium of expression, such as photography that represent “original intellectual conceptions” and “ his own genius and intellect.” The Court first argued that since Sarony included “Copyright, 1882, by N. Sarony,” at the corner of his photograph, it gave sufficient notice to the public of his exclusive right to the work. Secondly, although the Constitution does not include photographs under works of authorship in which are protected under copyright, it is only because the technology, when the statute was written in 1790, was not in existence. Providing the evidence that charts and maps were included under protection in Copyright Act of 1790, the court concludes that since photographs are a medium in which “idea of mind given a visible expression,” they also qualify under copyright protection under the constitution. Court goes further on, stating no ordinary photography of which “transferring to the plate the visible representation of some existing object” will not be given a copyright. Only photographs that are “useful, new, harmonious, characteristic, and graceful…entirely from his own original mental conception” and in effectively doing so—showcasing enough expression and originality to be granted such a protection. With this case, Supreme Court demonstrated a great activism in promoting and introducing new medium of expression to the culture. However, the last clause to the court’s argument, that a photograph must express sufficient originality according to court’s standard to be considered an art, creates a very subjective and aesthetic basis to which future photographic art/and recreations of the medium are to be judged. Words that were used by Justice Miller to describe an original photography are words conceptualized with different meanings according to every person’s mind and artistic taste. Law should be a concrete rule which should be understood and interpreted, to an extent, on a same level, and the aesthetics required by the court’s decision set minimal base to which people can agree on. This was the first real case in which the court’s decision in granting the copyright based entirely upon a subjective and aesthetic decision. I will argue the loosely set standards in the decision created inconsistency and unpredictability in future cases and did little to mold society a clear conception of photography as art.