In October of this past year, the Supreme Court heard oral arguments for the case Andy Warhol Foundation for the Visual Arts Inc. v. Goldsmith, a case that many argue may have profound implications for how artists, particularly artists working with photography (which seems to be almost all of them), create art. In trying to understand the case more, I looked at the Journal of Intellectual Property Law and Practice and came across two articles that discussed this case’s merits and consequences. The first article, titled “Does ‘transformative’ fair use eviscerate the author’s exclusive right to ‘transform’ her work?”, read as an eloquent and thoughtful consideration of how the case may eventually be decided. The second article, titled “The US Supreme Court’s Warhol case; what is the fuss about?”, read much more like someone who believes paintings are still the dominant mode of high art today.

The article starts by asserting that those who would claim that this Supreme Court may gravely change the art world are merely doomsayers who do not understand the rigidity of the law and the way in which the law acts with prudence. The author claims that artworks and the effects they produce on an individual will not in any way change. And, while the author strangely argues that “one’s view of Titian’s Bacchus and Ariadne (1522–1523) cannot conceivably be affected by whether five members of the US Supreme Court think Warhol’s use of Goldsmith’s photograph was fair or not,” he seems to miss the point that it is not prior works of art, especially ones produced before a photograph could be manipulated, that are at stake in this decision.

Rather, it is how artists and hobbyists alike in all mediums — digital art, rephotography, graphic design, etc. — will consider creating artworks in the near future, especially if a whole range of media becomes dangerous territory to navigate. In light of this, the author’s declaration that “the intervention of the courts into what some falsely regard as judicial passing on art is an unforced error” rings an unnerving bell within… and the thing I fear most is that too strong of a majority holds his same view on the issue; namely, that Courts do not affect art-making.

The Supreme Court has taken up a variety of cases concerning copyright issues in art, and, frankly, have often sided on the individual or group that metaphorically takes the artwork and runs with it. In Campbell v. Acuff-Rose Music, Inc. (1994), the Supreme Court reversed the Court of Appeals decision by finding that a commercial parody can be considered legal under the Fair Use Doctrine as they operate in different markets. Even if the decision were not to have been reversed, by merely taking up the case, the Supreme Court is demonstrating that the nature of one’s artwork has a substantial effect on if it may be considered art in the sense that it can hold value on the market. In a case where the federal judge sides one way, the appellate judges side the other way and then the Supreme Court reverses the appellate decision, it is evident that the legal world has a say on what constitutes art.

Fundamentally, this raises the more important question: should the Supreme Court act on these complex issues, or should they let artists run loose under the Fair Use doctrine? The article seems to be under the impression that the Supreme Court’s decision, whether it be for or against the Andy Warhol Foundation, will not matter in the long run as the Fair Use doctrine remains unchanged. However, should that be the desirable outcome? In an age where images, and the ability to manipulate them, are so accessible to anyone with internet access, should there be more stringent attitudes towards appropriation?

A recent case that I find mildly disturbing is Cariou v. Prince (2013), between the infamous artist Richard Prince, whose style was largely centered around seizing images from the abyss, sometimes manipulating them and sometimes not, and the French photographer Patrick Cariou, whose images Prince grabbed and altered. The decision on whether Prince’s artwork was sufficiently transformative  justify using Cariou’s images is not of concern here. Rather, the notion that Prince used the artworks for no real reason and that his newly created works register no “real message” is the scary point; the image’s effect, rather than the manipulator’s intention, is what seems to be on trial.

Warhol’s work, in a sense, does the same thing. As the first article highlights brilliantly, Warhol was not in any way tied to the image Goldsmith produced: he merely chose the one he did because it worked for his formula. Are these all images that, as Justice Sonia Sotomayor stated during oral arguments in the Warhol case, produce “a comment on consumerism” compelling enough to be deemed lawful under the Fair Use doctrine? Are we giving artists too much leverage to simply take from other artists, with minor or no changes to the artwork, especially when an intention can be as simple as a commentary on the seemingly infinite nature of images today — or, in the case of Prince, an image with no message?