COMMENT BLANCH IT, MIX IT, MASH IT: A FAIR USE FRAMEWORK FOR THE MASHUP TABLE OF CONTENTS INTRODUCTION .................................................................................495 I. BACKGROUND ........................................................................498 A. Copyright Law .................................................................498 B. The Music Industry ..........................................................500 II. THE PROBLEM ........................................................................504 A. Inconsistency ...................................................................504 B. Originality .......................................................................505 III. THE DOCTRINE OF FAIR USE ..................................................507 A. Purpose and Character ...................................................508 1. Transformative Value ................................................508 2. Commercial Nature ...................................................513 B. Nature and Amount .........................................................515 C. Market .............................................................................517 IV. THE SOLUTION .......................................................................521 CONCLUSION ...................................................................................524 INTRODUCTION “We cannot solve our problems with the same thinking we used when we created them.” 1 Copyright law is at odds with modern forms of artistic impression. 2 With a striking increase in the number of infringement suits filed in the past few years, 3 it is clear that the courts need a new perspective. 4 In the words of the former United States Supreme Court 1. JULIA B. CORBETT, COMMUNICATING NATURE: HOW WE CREATE AND UNDERSTAND ENVIRONMENTAL MESSAGES 309 (2006) (quoting Albert Einstein). 2. See Matt Williams, Silence and Postmodern Copyright, 29 CARDOZO ARTS & ENT. L.J. 47, 54 (2011). 3. Mike Masnick, Just Under 100,000 Sued in Mass Copyright Infringement Suits Since Start of 2010, TECHDIRT (Jan. 31, 2011, 8:40 AM), http://www.techdirt.com/articles/20110129/23354512882/just-under-100000-suedmass-copyright-infringement-suits-since-start-2010.shtml. 4. See Robert M. Szymanski, Audio Pastiche: Digital Sampling, Intermediate Copying, Fair Use, 3 UCLA ENT. L. REV. 271, 273 (1996).

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Justice George Sutherland, “while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise.” 5 To ensure that the purpose of copyright—”[t]o promote the Progress of Science and useful Arts” 6—is never varied, we must adhere to Justice Sutherland’s principle when addressing the issue before us. 7 The advent of the digital age has brought many developments in the music industry. Digital sampling 8 is exceedingly prevalent on the scene; 9 in fact, sampling technology that was only available in the studio is now affordable for the everyday consumer. 10 Additionally, the Internet provides unauthorized and unfettered access to nearly the entire history of recorded music to those who seek it. 11 As a result, not only is it now possible to manipulate an infinite collection of copyrighted music, but we must also consider what an ordinary use for copyrighted music is. 12 As this sampling practice becomes more commonplace in the music industry, our notions of “popular music” will also be tested. 13

5. Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365, 387 (1926). 6. U.S. CONST. art. I, § 8, cl. 8. 7. Euclid, 272 U.S. at 387. 8. See discussion infra Part II B. 9. See A. Dean Johnson, Comment, Music Copyrights: The Need for an Appropriate Fair Use Analysis in Digital Sampling Infringement Suits, 21 FLA. ST. U. L. REV. 135, 135 (1993) (citing Richard Harrington, The Groove Robbers’ Judgment: Order on ‘Sampling’ Songs May Be Rap Landmark, WASH. POST, Dec. 25, 1991, at D1, D7). 10. See Reuven Ashtar, Theft, Transformation, and the Need of the Immaterial: A Proposal for a Fair Use Digital Sampling Regime, 19 ALB. L.J. SCI. & TECH. 261, 284 (2009). 11. See Emily Harper, Note, Music Mashups: Testing the Limits of Copyright Law as Remix Culture Takes Society by Storm, 39 HOFSTRA L. REV. 405, 405 (2010) (citing Edward Lee, Developing Copyright Practices for User-Generated Content, J. INTERNET L., July 2009, at 1, 13). 12. See Lawrence Lessig, Free(ing) Culture for Remix, 2004 UTAH L. REV. 961, 968 (2004). 13. Ashtar, supra note 10, at 301 (citing JOANNA DEMERS, STEAL THIS MUSIC: HOW INTELLECTUAL PROPERTY LAW AFFECTS MUSICAL CREATIVITY 8–9 (2006)).

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“A perfection of means, and confusion of aims, seems to be our main problem.” 14 At the current juncture, “the law is widely dissociated from the social norm.” 15As this sampling practice becomes more widespread, the disparity between law and practice becomes more apparent. 16 There is such a great discrepancy between what copyright deems legal and what the public demands that our society is considered by some to be “‘a nation of infringers.’” 17 As it is currently applied, copyright law is not suitable for the reality of our time. 18 The digital age in which we live must eventually face the letter of the law. When that time comes, copyright law must stand down and “‘adapt to this new technology, as it has in the past, to foster, rather than inhibit, its benefit to society.’” 19 Our technology has again brought us to that time. “When technological change has rendered its literal terms ambiguous, the Copyright Act must be construed in light of this basic purpose.” 20 “Yet copyright law has not been amended or adjusted to keep pace with these technological changes.” 21

14. PAUL F. PLOUTZ, GLOBAL WARMING: HANDBOOK OF ECOLOGICAL ISSUES 320 (2011) (quoting Albert Einstein). 15. Megan M. Carpenter, Space Age Love Song: The Mix Tape in a Digital Universe, 11 NEV. L.J. 44, 79 (2010). 16. See Ashtar, supra note 10, at 268. 17. Michael Katz, Recycling Copyright: Survival & Growth in the Remix Age, 13 INTELL. PROP. L. BULL. 21, 40 (2008) (quoting Nate Anderson, Overly-broad Copyright Law has Made USA a “Nation of Infringers,” ARS TECHNICA (Nov. 19, 2007, 1:01 PM), http://arstechnica.com/news.ars/post/20071119-overly-broadcopyright-law-has-made-us-a-nation-of-infringers.html). 18. See Carpenter, supra note 15, at 79. 19. Katz, supra note 17, at 40 (quoting Thomas David Kehoe, How Experts Fail: The Patterns and Situations in Which Experts Are Less Intelligent than NonExperts, Paradigm Shifts and Profound Stupidity (Aug. 10, 2007), http://www.howexpertsfail.com). 20. Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975) (The “basic purpose” stated is “to stimulate artistic creativity for the general public good.” Id.) (citing Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 395–96 (1968)). “[T]his is a statute that was drafted long before the development of the electronic phenomena . . . . We must read the statutory language of 60 years ago in the light of drastic technological change.” Id. (citing Fortnightly Corp., 392 U.S. at 395–96). 21. Katz, supra note 17, at 38.

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Thus, we approach a legal crossroads—one that may transform more than just the music industry. 22 This Article expounds on the legality of the mashup 23 under copyright law. Primarily, it proposes a fair use framework to be applied in the event that a mashup artist is sued for copyright infringement. The mashup may very well be the turning point of our time, and if not handled with great care, then the outcome could agitate the growth of our culture in more ways than one. Part II of this Article provides a brief glimpse into copyright law and the fair use doctrine, and it presents some information about the music industry and the popular art forms that thrive in it today. Part II also details two major concerns regarding the application of the fair use analysis. Part III addresses some major concerns revolving around recent applications of fair use. Part IV then takes a step-bystep approach to the fair use doctrine. In doing so, this section attempts to provide support for the mashup as a creature of appropriation that is above that of sampling. Part V demonstrates that amending the Copyright Act to solve our problems is not the most effective solution. A change in focus not only provides instantaneous results but also contains the forward thinking required to make a lasting change. Finally, Part VI combines these illustrations and reinforces the goal of copyright as the infrastructure upon which this Article’s framework stands. I. BACKGROUND A. Copyright Law Copyright law stems from the same document that rooted our nation. The Copyright Clause contained within the Constitution of the United States gives Congress the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” 24 Copyright law grants the copyright owner the exclusive right to create “derivative works based upon the 22. See Harper, supra note 11, at 408 (citing Mongillo, infra note 50, at 3) (“[T]here is great uncertainty surrounding the legality of mashups because courts have not yet addressed the matter.”Id.). 23. See infra text accompanying note 40. 24. U.S. CONST. art. I, § 8, cl. 8.

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copyrighted work.” 25 Thus, an artist who wishes to utilize the work of another must obtain a license from the original artist. 26 With excessive licensing fees, average artists may be faced with either deserting their art or breaking the law. 27 However, in 1976, Congress incorporated the fair use doctrine into the Copyright Act for the first time. 28 The Act recognized that a successful fair use defense is a complete defense to a claim of infringement: 29 Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. 30 The fair use doctrine insists upon a lax view “‘of the copyright statute when, on occasion, it would stifle the very creativity which

25. 17 U.S.C. § 106(2) (2006). 26. See id. 27. See Harper, supra note 11, at 437–38 (citations omitted). 28. H.R. REP. No. 94-1476, at 65 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5678. 29. Abilene Music, Inc. v. Sony Music Entm’t, Inc., 320 F. Supp. 2d 84, 88 (S.D.N.Y. 2003). 30. 17 U.S.C. § 107 (emphasis added).

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that law is designed to foster.’” 31 In that way, the statute was drafted to be malleable and “to accommodate periods ‘of rapid technological change.’” 32 Therefore, bright-line rules will not suffice for a fair use analysis; the statute “calls for [a] case-by-case analysis.” 33 Fair use should not be seen as an exception to the exclusive rights of the copyright owner, but rather as a fundamental aspect of copyright law. 34 If fair use is to be “bent to the service of copyright,” 35 then the very purpose of copyright is lost; a purpose that should be at the heart of every fair use decision. Therefore, copyright “must step aside in favor of fair use,” 36 because fair use is indispensible “to fulfill copyright’s very purpose.” 37 B. The Music Industry Sampling occurs when an artist detaches certain portions of a recording and utilizes them in a new work. 38 The circuits are split on how best to handle a minimal use of sampling in audio recordings. 39 However, this Article goes far beyond a minimal use of sampling and into the realm of the mashup. An audio mashup “is a type of sampling that ‘[t]ypically consist[s] of a vocal track from one song 31. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994) (quoting Stewart v. Abend, 495 U.S. 207, 236 (1990) (citation omitted)). 32. Johnson, supra note 9, at 145 (quoting H.R. REP. NO. 94-1476, at 5680). 33. Campbell, 510 U.S. at 577 (citing Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985)). 34. Pierre N. Leval, Toward a Fair Use Standard, 103 HARV. L. REV. 1105, 1107 (1990). 35. David Lange & Jennifer Lange Anderson, Copyright, Fair Use and Transformative Critical Appropriation 149 (2001) (unpublished essay) (on file with the Conference on the Public Domain at the Duke Law School), available at http://www.law.duke.edu/pd/papers/langeand.pdf. 36. Lange & Anderson, supra note 35, at 149 (emphasis added). 37. See Campbell, 510 U.S. at 575. 38. See Szymanski supra note 4, at 275–76 (citing E. Scott Johnson, Protecting Distinctive Sounds: The Challenge of Digital Sampling, 2 J.L. & TECH. 273 (1987); R. Sugarman & J. Salvo, Sampling Gives Law a New Mix; Whose Rights?, NAT’L L.J., Nov. 11, 1991, at 1). 39. Compare Newton v. Diamond, 388 F.3d 1189 (9th Cir. 2003) (holding that the sampling of a segment of three notes from a composition was de minimis), with Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 801, 803, 805 (6th Cir. 2005) (taking a “literal reading” approach to the “interpretation of the copyright statute” and holding that any sampling is infringement.) (“Get a license or do not sample.” Id.).

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digitally superimposed on the instrumental track of another.’” 40 Unlike the sampling artists who attempt to slyly dissolve the sample into a new work, the mashup artist is not attempting to “hide the authorship of the prior recordings, nor claim them as his own work.” 41 Although the practice of mashing could be seen as lacking creativity, 42 it is the product of this process that conceals the true creative engineering. 43 Whether in a mashup or remix, sampling is so prevalent in the music industry that many see it as vital to our music culture. 44 Notwithstanding the various infringement suits filed against sampling artists, the genre gains popularity at an ever-increasing pace. 45 For example, in 2005, a mashup album containing the work of the artists Jay-Z and Linkin Park made the Billboard Top Ten. 46 Billboard.com also hosts Mashup Mondays, in which a mashup and mashup artist are featured each week. 47 An even more impressive example is Danger Mouse’s The Grey Album, a mashup album created from JayZ’s The Black Album and The Beatles’s White album. 48 More than 100 million tracks were downloaded in one day, making it the largest single-day download in history. 49 Although this style of music seems to exceed the boundaries of what is typical, 50 repurposing decades of 40. Aaron Power, 15 Megabytes of Fame: A Fair Use Defense for Mash-ups as DJ Culture Reaches Its Postmodern Limit, 35 SW. U. L. REV. 577, 579 (2007) (alterations in original) (quoting Pete Rojas, Bootleg Culture, SALON (Aug. 1, 2002, 3:30 PM), http://archive.salon.com/tech/feature/2002/08/01/bootlegs). 41. Id. at 585. 42. See Harper, supra note 11, at 410–11. 43. See Power, supra note 40, at 589 (stating that the aim of the mashup is to “retain as much as possible from the original works so that the combination seems natural”). 44. Szymanski, supra note 4, at 278 (citing Howard Reich, Send in the Clones, The Brave New Art of Stealing Musical Sounds, CHI. TRIB., Feb. 15, 1987, at 8). 45. See Harper, supra note 11, at 410 (citing Power, supra note 40, at 583, 586). 46. See Katz, supra note 17, at 32. 47. BILLBOARD, www.billboard.com/column/mashupmondays (last visited Nov. 20, 2012). 48. See Power, supra note 40, at 580 (citing Rob Walker, The Grey Album, N.Y. TIMES MAGAZINE, Mar. 21, 2004, at 32). 49. Id. at 580–81. 50. See David Mongillo, The Girl Talk Dilemma: Can Copyright Law Accommodate New Forms of Sample-Based Music?, 9 U. PITT. J. TECH. L. & POL’Y, Spring 2009, at 3.

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music that span a multitude of genres has “created a new and enduring form of music.” 51 Living in what some call a remix culture, 52 society relishes “appropriation as a means of critical expression.” 53 Even with the myriad of infringement suits filling the dockets, this art form gains appreciation at a bristling pace. 54 Therefore, the courts would be wise to heed the words of former United States Supreme Court Justice Oliver Wendell Holmes: It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme, some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. 55 Ergo, the “law cannot, and should not, dictate the norms of art.” 56 Because the mashup has not yet been ruled on, there is concern that the law will dictate the norm of this art form. There is a high likelihood that the mashup will be shuffled in with cases interpreting digital sampling. Although the mashup is technically a form of digital sampling, it should instead be affiliated with appropriation art. Appropriation has been described as many things: a language; 57 an allegorical mechanism; 58 and, most importantly, a movement. 59 51. Johnson, supra note 9, at 138. 52. Emily Meyers, Art on Ice: The Chilling Effect of Copyright on Artistic Expression, 30 COLUM. J.L. & ARTS 219, 236 (2007) (quoting Marjorie Heins and Tricia Beckles, Will Fair Use Survive? Free Expression in the Age of Copyright— A Public Policy Report, at 3 (2005), available at http://www.fepproject.org/ policyreports/WillFairUseSurvive.pdf). 53. Mary W.S. Wong, “Transformative” User-Generated Content in Copyright Law: Infringing Derivative Works or Fair Use?, 11 VAND. J. ENT. & TECH. L. 1075, 1111 (2009). 54. Id. 55. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903). 56. Xiyin Tang, That Old Thing, Copyright . . . : Reconciling the Postmodern Paradox in the New Digital Age, 39 AIPLA Q.J. 71, 72 (2011). 57. Roxana Badin, An Appropriate(d) Place in Transformative Value: Appropriation Art’s Exclusion from Campbell v. Acuff-Rose Music, Inc., 60 BROOK. L. REV. 1653, 1656 (1995). 58. Id. at 1660.

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Appropriation focuses on the selection and removal of another artist’s material and subsequent inclusion into a new creation. 60 “[T]o appropriate is to challenge, to expose, and thus to transcend the conceits and boundaries of the past, thereby gaining insight into what was unacknowledged or opaque.” 61 This art form “assume[s] a deliberate role in the transmission of [our] culture.” 62 Appropriation is the instrument with which the artist can combat this mass-media driven world in which we live. 63 It confronts the ideals of our past and forces the audience to see them in a new light. 64 Accordingly, appropriation “liberates us from [the] constructs” 65 of what is known by recontextualizing what would otherwise be familiar. 66 Thus, to fully appreciate the final work one must imagine the appropriated portion in its original context as well as the context in which it has been placed by the mashup artist. 67 A common form of appropriation is collage, which creates a “new combination, use, or assemblage of existing works.” 68 Collage is not seen only in the visual-art world; many view digital sampling as a form of collage. 69 Like the visual artist, the sampling artist removes segments from recordings and “piece[s] them together into song collages.” 70 “Arguably, the whole point of such sampling is to dislocate the sound fragment from its initial context, and thereby to empty the sample of its former meaning by infusing it with a new 59. Rachel Isabelle Butt, Appropriation Art and Fair Use, 25 OHIO ST. J. ON DISP. RESOL. 1055, 1059–60 (2010). 60. Id. (citing Patricia Krieg, Copyright, Free Speech, and the Visual Arts, 93 YALE L.J. 1565, 1571 (1984); William M. Landes, Copyright, Borrowed Images, and Appropriation Art: An Economic Approach, 9 GEO. MASON L. REV. 1, 1 (2000)). 61. Lange & Anderson, supra note 35, at 132. 62. Id. at 137. 63. Tang, supra note 56, at 97–98. 64. See Badin, supra note 57, at 1660. 65. Tang, supra note 56, at 101. 66. Badin, supra note 57, at 1668. 67. Tang, supra note 56, at 101. 68. Wong, supra note 53, at 1086. 69. Szymanski, supra note 4, at 282 (citing Alan Korn, Comment, Renaming that Tune: Aural Collage, Parody and Fair Use, 22 GOLDEN GATE U. L. REV. 321, 326 (1992)). 70. Mongillo, supra note 50, at 2 (citing Robert Levine, Steal this Hook? DJ Skirts Copyright Law, N.Y. TIMES, (Aug. 7, 2008), http://www.nytimes.com/2008/ 08/07/arts/music/07girl.html).

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one.” 71 This recontextualization is the essence of the mashup genre. One may view mashup artists as plagiarists, 72 but it is far more realistic to see them as conductors interpreting the compositions of the past. 73 For example, these artists often mash samples from genres that are poles apart, proving that “dissimilar genres can coexist in harmony.” 74 They also test the boundaries of “song structure, the limits of what can be accepted as musicianship, and the nature of authorship.” 75 The significance of the mashup, like all other types of appropriation art, is its “ability to speak critically of the society in which both the public and the artist live.” 76 Consequently, the mashup is the “art of now.” 77 II. THE PROBLEMS “ONCE WE ACCEPT OUR LIMITS, WE GO BEYOND THEM.” 78 A. Inconsistency The central issue with the application of fair use is its inconsistency. 79 Because fair use is analyzed on a case-by-case basis, “the doctrine has lost its original usefulness to protect certain uses consistently.” 80 However, the selective application of the doctrine is not the only source fueling the inconsistency; societal changes and growth have also contributed to the uncertainty surrounding fair use. 81 Furthermore, as the doctrine’s terminology has not been

71. Szymanski, supra note 4, at 314. 72. See Badin, supra note 57, at 1660. 73. Cf. id. at 1668 (stating that we should see “the artist as the manipulator or modifier of existing material, rather than as the inventor or creator of new forms”). 74. Harper, supra note 11, at 423. 75. Power, supra note 40, at 586. 76. Badin, supra note 57, at 1656. 77. Tang, supra note 56, at 101. 78. ANNA BELCASTRO, 2012: FROM HERE TO ETERNITY 166 (2011) (quoting Albert Einstein). 79. See Mongillo, supra note 50, at 16. 80. Butt, supra note 59, at 1058. 81. See Debra L. Quentel, “Bad Artists Copy. Good Artists Steal.”: The Ugly Conflict Between Copyright Law and Appropriationism, 4 UCLA ENT. L. REV. 39, 64–65 (1996).

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defined, “the fair use doctrine is open to variable interpretation by the courts.” 82 The opinions construing the doctrine present varying views of fair use. 83 As each judge takes a unique approach to a fair use defense, “[e]arlier decisions provide little basis for predicting later ones.” 84 Yet, little effort has been made by the courts to bridge those gaps; as a result, the doctrine’s terrain remains cragged and unpredictable. 85 Therefore, it is a risky business to presume that a reliable fair use defense exists. 86 The unsettled nature of the fair use doctrine will likely create fear in the eyes of the artist. 87 And “[w]hen an artist fears litigation, and therefore does not create art, the goals of copyright to promote creation are not fostered.” 88 The artist’s alternative is to obtain licenses for the source material that he or she wishes to use. However, due to the high cost of licenses and the time required to clear the sample, the creative process is severely suffocated. 89 The solution is simple: consistent rulings on common uses would reduce the grey area and simplify the law for the consumers of content. 90 If changes are not made in our near future, then it could be the end of the mashup genre as we know it. 91 B. Originality Another central issue with the application of fair use is the misconception surrounding originality. As stated by former United States Supreme Court Justice Joseph Story: In truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must

82. Meyers, supra note 52, at 229. The United States Supreme Court has yet to define language in the four-factor test such as purpose and character. Id. 83. Leval, supra note 34, at 1107. 84. Id. at 1106. 85. See id. at 1106–07. 86. Katz, supra note 17, at 26. 87. See Butt, supra note 59, at 1059. 88. Id. 89. See Meyers, supra note 52, at 234. 90. Katz, supra note 17, at 53. 91. Power, supra note 40, at 597.

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necessarily borrow, and use much which was well known and used before. 92 His words attempt to convey the understanding that “[t]here is no such thing as a wholly original thought or invention.” 93 For that reason, all creative works are, to an extent, imitative (perhaps even plagiaristic?). 94 An interesting theory describes the creative works of our past as “[r]ecognizable objects,” 95 and by virtue of their recognizability, they “belong to all of us.” 96 A similar principle, which the majority of artists would acknowledge, is that “[a]rt history is a ‘cumulative progression.’” 97 Likewise, “an artist’s work is meaningless absent contextualization of the relationship between that work with others and with society in general.” 98 Every breakthrough is enabled by the thinkers of the past, 99 and to disallow artists to “build[ ] on the works of others” only steers us further from Progress. 100 “Surely, defining ‘Progress’ as development and growth implies that there is something more to artistic output than mere numbers.” 101 Copyright law’s very existence is premised on the fact that creative works “move society forward.” 102 Until we are permitted to borrow from the creations of our past, artists will be further restrained from practicing their art. 103 It is time for our legal system to embrace the fair use doctrine as a vehicle of growth. The arts, including music, have the potential to “shape the changing social, political, and theoretical conditions of [our] time.” 104 If fair use can be tailored to allow reflection on our past through

92. Emerson v. Davies, 8 F. Cas. 615, 619 (C.C.D. Mass. 1845). 93. Leval, supra note 34, at 1109. 94. See id. 95. Tang, supra note 56, at 83 (internal quotations omitted). 96. Id. 97. Butt, supra note 59, at 1065 (internal quotations omitted). 98. Id. 99. See Leval, supra note 34, at 1109 (quoting Zechariah Chafee, Reflections of the Law of Copyright, 45 COLUM. L. REV. 503, 511 (1945)). 100. Ashtar, supra note 10, at 317 (quoting Nash v. CBS, 899 F.2d 1537, 1540 (7th Cir. 1990)). 101. Tang, supra note 56, at 100. 102. Quentel, supra note 81, at 41. 103. See Meyers, supra note 52, at 219. 104. Tang, supra note 56, at 78.

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appropriation, then our culture and society will surely grow as we navigate the road to Progress. 105 III. THE DOCTRINE OF FAIR USE There may be light at the end of the tunnel. One court’s opinion stands above the rest on our quest to frame the mashup as a fair use. In Blanch v. Koons, 106 it seems that “old attitudes have been displaced or supplanted by new ones in the domain of culture.” 107 In Blanch, Jeff Koons, a well-known visual artist, appropriated a copyrighted photograph in a collage painting that was commissioned to be displayed at the Solomon R. Guggenheim Foundation in New York City. 108 The photograph in question, Silk Sandals by Gucci, was taken by professional photographer Andrea Blanch. 109 Portions of the photograph were used in Koons’ painting, Niagara. 110 Koons prevailed on his fair use defense at the district-court and appellate levels. 111 The Blanch opinion demonstrates a decision that is most in tune with the purpose of copyright law. The fair use factors must be “weighed together, in light of the purposes of copyright.” 112 The preamble to 17 U.S.C. § 107 indicates fair uses such as criticism and comment. 113 It is important to note that the uses included are only examples and that the doctrine is not limited to those uses. 114 Some scholars claim that appropriation is a form of criticism and comment. 115 However, not all sampling and mashup artists appropriate work for the purpose of criticism or comment. 116 Furthermore, as previously addressed, mashups are “more aptly characterized as re-contextualization.” 117

105. See id. 106. Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006). 107. Williams, supra note 2, at 49 (quoting Peter Jaszi, Is There Such a Thing as Postmodern Copyright?, 12 TUL, J. TECH. & INTELL. PROP. 105, 105–06 (2009)). 108. Blanch, 467 F.3d at 246. 109. Id. at 248. 110. Id. at 247–48. 111. Id. at 246. 112. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994). 113. 17 U.S.C. § 107 (2006) (emphasis added). 114. See Campbell, 510 U.S. at 577. 115. Badin, supra note 57, at 1654. 116. Harper, supra note 11, at 423 (citing Campbell, 510 U.S. at 578–85). 117. Ashtar, supra note 10, at 295.

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A. Purpose and Character The first factor considers “whether and to what extent the new work is transformative.” 118 Again, to quote the words of Justice Story, the chief concern in assessing the transformative value is “whether the new work merely ‘supercede[s] the objects’ of the original creation, (‘supplanting’ the original), or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” 119 Because the purpose of copyright law is to promote Progress, the “creation of transformative works” embodies that purpose. 120 Therefore, “the more transformative the new work, the less will be the significance of [the] other factors, like commercialism, that may weigh against a finding of fair use.” 121 Furthermore, the commercialism component should not weigh too heavily in the analysis, regardless of the transformative value. Because most artists aspire to profit from their creations, the “courts should be wary of placing too much emphasis on the commercial nature in a fair use determination.” 122 1. Transformative Value In Blanch, Jeff Koons detailed his mental processes during the creation of Niagara. 123 First, Koons explained his reasons for appropriating the photograph. He described how the legs in the photograph represented some worldly maxim to him. 124 The image of the legs was “a fact in the world, something that everyone experiences constantly.” 125 He went on to say that they were not “anyone’s legs in particular.” 126 His purpose for appropriating the photo was more reminiscent of Plato’s theory of Forms. 127 Forms “are independently existing entities whose existence and nature are graspable only by the mind, even though they do not depend on being 118. Campbell, 510 U.S. at 579 (citing Leval, supra note 34, at 1111). 119. Id. (alteration in original) (citation omitted). 120. Id. 121. Id. 122. Robinson v. Random House, Inc., 877 F. Supp. 830, 840 (S.D.N.Y. 1995). 123. Blanch v. Koons, 396 F. Supp. 2d 476, 480–81 (S.D.N.Y. 2005). 124. Id. 125. Id. at 481. 126. Id. 127. S. Marc Cohen, Theory of Forms, UNIV. OF WASH. (last visited Nov. 20, 2012, 2:48 PM), http://faculty.washington.edu/smcohen/320/thforms.htm.

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so grasped in order to exist.” 128 Koons saw the legs in the photograph not as one woman’s legs but as the form of women’s legs. In Koons’s eyes, the legs were a commonplace image that he “transformed into a language” to communicate his message. 129 The district court acknowledged the character of the legs as “raw material in a novel context.” 130 The appellate court confirmed this view. 131 Koons did not merely repackage the photograph but employed the legs as a raw material into Niagara. 132 “The secret to creativity is knowing how to hide your sources.” 133 Appropriation requires the artist to lose sight of the source. 134 New meaning is created in the “original images by creating new contexts and by deliberately erasing all signatures of authorship.” 135 The sources gathered from the artist’s own experiences thus “become paint on a palette.” 136 Functionally, the artist creating a mashup is no different than the visual artist, like Koons, creating a collage. The artist approaches all genres with a nomadic attitude, considering all musical genres as raw materials. 137 Treating the source as a raw material is only one portion of the transformative diagnosis. Once Koons severed the “anonymous legs from the context of the photograph,” he positioned them over images of “ice cream, donuts and pastries.” 138 In doing so, he attempted to “suggest how commercial images like these intersect in our consumer culture and simultaneously promote appetites, like sex, and confine other desires, like playfulness.” 139 Koons’s artwork is “about how we relate to the things that we actually experience.” 140 Andrea Blanch constructed the photograph in a way that would “show some sort of erotic sense”

128. Id. 129. Badin, supra note 57, at 1656. 130. Blanch, 396 F. Supp. 2d at 481. 131. Blanch v. Koons, 467 F.3d 244, 253 (2d Cir. 2006). 132. Id. 133. LLOYD BRADLEY & THOMAS EATON, BOOK OF SECRETS 90 (2005) (quoting Albert Einstein). 134. See Meyers, supra note 52, at 235–36. 135. Badin, supra note 57, at 1668. 136. Tang, supra note 56, at 83 (internal quotations omitted). 137. See Szymanski, supra note 4, at 283. 138. Blanch v. Koons, 396 F. Supp. 2d 476, 481 (S.D.N.Y. 2005). 139. Id. 140. Id.

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and bring more sensuality to the image. 141 The appellate court easily distinguished between the artists’ disparate purposes in use and creation, which confirmed “the transformative nature of the use.” 142 “True art is characterized by an irresistible urge in the creative artist.” 143 Koons considered the legs in Silk Sandals as “necessary for inclusion” in Niagara. 144 The legs in the photograph were so quintessential to Koons that taking a photograph himself was out of the question. 145 The New York Court of Appeals seemed to respect the words of Justice Holmes when considering “whether Koons had a genuine creative rationale for borrowing Blanch’s image.” 146 Faithful to the wisdom of Justice Holmes, the appellate court gave great deference to Koons’s reasoning for using the photograph and “his ability to articulate those reasons.” 147 As a result, the court’s opinion demonstrates how the focus of the transformative inquiry lies in the appropriator’s purpose rather than the actual transformation of the appropriated material. 148 The goal of the artist is met when the transformed “work enables the audience to perceive a new purpose or meaning for the preexisting work.” 149 There is a chance that some people will not see the transformative nature in the final work. 150 Likewise, some believe that “mashups are not transformative because they do not change the original song’s purpose or connotation.” 151 For example, DJ Earworm 152 mashed four songs together, all four

141. Blanch v. Koons, 467 F.3d 244, 252 (2d Cir. 2006) (quoting Plaintiff’s Deposition at 112–13, Blanch v. Koons, 396 F. Supp. 2d 476 (S.D.N.Y. 2005) (No. 03 Civ. 8026)). 142. Id. 143. BARNEY DAVEY, HOW TO PROFIT FROM THE ART PRINT MARKET 179 (2005) (quoting Albert Einstein). 144. Blanch, 467 F.3d at 255. 145. Id. 146. Id. 147. Id. at n.5. 148. Wong, supra note 53, at 1135. 149. See Williams, supra note 2, at 73. 150. See Meyers, supra note 52, at 231. 151. Harper, supra note 11, at 416 (citing Michael Allyn Pote, Note, Mashed-Up in Between: The Delicate Balance of Artists’ Interests Lost Amidst the War on Copyright, 88 N.C. L. REV. 639, 670–71 (2010)). 152. Jordan “DJ Earworm” Roseman, About DJ Earworm, DJ EARWORM MUSIC MASHUPS, (Mar. 27, 2012, 7:32 PM), http://djearworm.com/about.

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written about togetherness. 153 A listener or, more importantly, a court may find the transformative value lacking in situations like this. However, the intent of the artist is not the only subject of inquiry in the transformative analysis. Analogous to a Koons collage painting, a mashup “creates something new by combining and recontextualizing the old.” 154 Although both courts in Blanch put substantial weight on Koons’s purpose for appropriating and using the photograph, 155 future courts will likely favor the appropriator if the modifications made to the original are substantial. 156 Likewise, the more inventive the utilization of the original, the clearer the transformation will be to the court. 157 Koons did not merely copy the legs from the photograph— he made them his own creation. 158 Koons changed the direction of the legs, adjusted the color, and even “‘added a heel to one of the feet.’” 159 “Imagination is everything. It is the preview of life’s coming attractions.” 160 Although some claim that mashups “merely copy original works and rearrange them in a random way,” 161 others “see recontextualizing existent sounds as a greater creative challenge than starting from scratch with traditional instruments.” 162 In other words, the process of editing, altering, and arranging is transformative in itself. 163 Extracting the sample and preparing it for the new work is a demanding undertaking. 164 Brian Burton, also known as Danger Mouse, explains the process of crafting The Grey Album: 153. See Harger, supra note 11, at 425. 154. Mongillo, supra note 50, at 25. 155. See id. at 26–27. 156. See Johnson, supra note 9, at 158–59. 157. See id. at 156. 158. Blanch v. Koons, 396 F. Supp. 2d 476, 481 (S.D.N.Y. 2005). 159. Id. (quoting Koons Aff. 5–6, June 10, 2005). 160. PAUL HUTCHINS, THE SECRET DOORWAY: BEYOND IMAGINATION 87 (2008) (quoting Albert Einstein). 161. Harper, supra note 11, at 423 (citing UMG v. MP3.com, Inc., 92 F. Supp. 2d 349, 351 (S.D.N.Y. 2000)). 162. Ashtar, supra note 10, at 284 (citing Amanda Webber, Note, Digital Sampling and the Legal Implications of Its Use After Bridgeport, 22 ST. JOHN’S J. LEGAL COMMENT. 373, 379–80 (2007)). 163. Harper, supra note 11, at 424 (citing Mongillo, supra note 50). 164. Ashtar, supra note 10, at 307.

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A lot of people just assumed I took some Beatles and, you know, threw some Jay-Z on top of it or mixed it up or looped it around, but it’s really a deconstruction. It’s not an easy thing to do. I was obsessed with the whole project, that’s all I was trying to do, see if I could do this. Once I got into it, I didn’t think about anything but finishing it. I stuck to those two because I thought it would be more challenging and more fun and more of a statement to what you could do with sampling alone. It is an art form. It is music. You can do different things, it doesn’t have to be just what some people call stealing. It can be a lot more than that.165 The mashup demands considerable creativity from the artist throughout the entire process. 166 Therefore, “[t]here is no discernible reason to discriminate against mash-ups because the transformation is exclusively done through production work.” 167 Realistically, the process may be more difficult for the mashup artist than for other appropriation artists. Mashup artists must overcome the obstacle of melding not only the clashing samples but also the genres and ideals that are contained in them. When the Supreme Court adopted Judge Pierre Leval’s transformative approach 168 in Campbell v. Acuff-Rose Music, Inc., 169 “it also embraced the aesthetic principle that a secondary user may legitimately use imitation to communicate new meaning about its target without the effect of superseding it—a dynamic central to appropriationism.” 170 It is time to embrace the mashup artist as a secondary user. Mashup artists are constantly challenging their listeners to consider music in new and alternative ways. 171 Even

165. MATTHEW RIMMER, DIGITAL COPYRIGHT AND THE CONSUMER REVOLUTION: HANDS OFF MY IPOD 132–33 (2007) (quoting Corey Moss, Grey Album Producer Danger Mouse Explains How He Did It, MTV NEWS (Mar. 11, 2004, 9:00 PM), http://www.mtv.com/news/articles/1485693/20040311/jay_z.jhtml). 166. Johnson, supra note 9, at 150. 167. Power, supra note 40, at 593. 168. Leval, supra note 34, at 1111. 169. 510 U.S. 569, 579 (1994). 170. Badin, supra note 57, at 1692. 171. See, e.g., Mongillo, supra note 50, at 27.

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though recontextualization is the means of transformation, as it was in Blanch, there is little doubt that Progress is the end result. 2. Commercial Nature When courts find a transformative use, it tips the first factor in favor of the appropriation artist and often determines the outcome of the fair use analysis as a whole. 172 The commercial aspect of the first factor “‘concerns the unfairness that arises when a secondary user makes unauthorized use of copyrighted material to capture significant revenues as a direct consequence of copying the original work.’” 173 However, courts do take into consideration any public benefit derived from the new work. 174 The public display of art and music clearly has “‘value that benefits the broader public interest.’” 175 The district court in Blanch only commented on the commercial nature of the use; the court said that “[b]oth works were created for commercial purposes.” 176 The appellate court expanded on the commercial nature of the work by acknowledging that “Koons made a substantial profit from the sale of Niagara.” 177 Niagara was part of a seven-painting series commissioned by the bank. 178 Koons was paid $2 million for the entire series. 179 The compensation for Niagara was estimated at $126,877, whereas Blanch was paid $750 for her photograph. 180 Despite the profit derived from Niagra, the appellate court had no trouble finding in favor of Koons under the first factor. 181

172. See Wong, supra note 53, at 1135 (citing Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions 1978–2005, 156 U.PA.L. REV. 549, 604–05 (2008)). 173. Blanch v. Koons, 467 F.3d 244, 253 (2d Cir. 2006) (quoting Am. Geophysical Union v. Texaco, Inc., 60 F.3d 913, 922 (2d Cir. 1994)). 174. Id. 175. Id. at 254; see also 20 U.S.C. § 951(4) (2006) (stating that “access to the arts and the humanities” fosters “wisdom and vision” and makes citizens “masters of their technology and not its unthinking servants”). 176. Blanch v. Koons, 396 F. Supp. 2d 476, 481 (S.D.N.Y. 2005), aff’d, 467 F.3d 244 (2d Cir. 2006). 177. Blanch, 467 F.3d at 253. 178. Id. at 248. 179. Id. 180. Id. at 248, 249. 181. Id. at 251–54.

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The commercial aspect is likely to be in the artist’s favor whether or not the artist has economic motives. Some artists in the mashup community “choose not to release commercial albums.” 182 The result is a chilling effect on this modern form of artistic expression. 183 Other artists create for purposes other than money, suggesting that at least some “mashup artists have noneconomic motives.” 184 That is why the majority of mashups are found on the Internet free of charge. 185 For those artists who seek a profit from their work, the Blanch decisions demonstrate how the transformative value greatly outweighs the commercial nature of the subsequent work. For example, due to the highly transformative nature of Niagara, even the hefty profit made by Koons was of little consequence to the outcome of the first factor. The ultimate goal of copyright law is to promote Progress. 186 It clearly follows that the first factor “is the soul of fair use.” 187 Therefore, a finding of justification under the first-factor analysis is “indispensible to a fair use defense.” 188 This section has shown that many aspects of appropriation art are transformative. There is transformative value in each step—from conception to unveiling. Not only are the artist’s purposes and goals direct support of the transformative value of the new work, but also the artistic process itself is highly transformative. The appropriated material goes through a metamorphosis of sorts. The appropriation artist captures the idea from the original image and employs it as raw material. The idea is given new context as the raw materials become native in the new work and all expression that stems from the original is stripped away. The final transformation gives appropriation art its meaning. The mélange of ideas at play in the new work transports the audience into a new dimension; a dimension where the seemingly familiar is unlike anything advanced in the past. In that way, the appropriation artist successfully transforms the audience, which in turn fosters public growth and Progress in the Arts. The above discussion

182. 183. 184. 185. 186. 187. 188.

Harper, supra note 11, at 410. See id. Id. at 427. Power, supra note 40, at 594. U.S. CONST. art. I, § 8, cl. 8. Leval, supra note 34, at 1116. Id.

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suggests that appropriation art is highly transformative; therefore, a mashup artist will likely prevail on the first factor. B. Nature and Amount The second and third factors will be addressed together. Due to their technical similarities to parodies, this section proposes that courts should treat mashups similar to parodies when considering these two factors. In the leading Supreme Court decision on fair use, Campbell v. Acuff-Rose Music, Inc., the Court found the commercial parody of another artist’s song a fair use. 189 The second factor in the fair use analysis is “the nature of the copyrighted work.” 190 This factor points to the notion that certain types of “works are closer to the core of intended copyright protection than others.” 191 This factor actually asks one to categorize the work as either expressive/creative or factual/informational. 192 In Campbell, the Court acknowledged that this distinction was “not much help in this case.” 193 Because “parodies almost invariably copy publicly known, expressive works,” this factor does not really tip in favor of either party. 194 The appellate court in Blanch realized that parodies and appropriation art are similar in that respect. 195 Therefore, the appellate court in Blanch concluded that the second factor had limited usefulness in the overall fair use inquiry. 196 As in Campbell, the second factor in Blanch was, in essence, dismissed from the overall fair use analysis. The third factor is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” 197 This factor considers the quantity and quality of the materials used. 198 Again, the Campbell Court found this factor to be of little help. 199 Parody cannot 189. 510 U.S. 569, 583–84 (1994). 190. 17 U.S.C. § 107(2) (2006). 191. Campbell, 510 U.S. at 586. 192. Blanch v. Koons, 467 F.3d 244, 256 (2d Cir. 2006) (quoting HOWARD B. ABRAMS, THE LAW OF COPYRIGHT § 15:52 (2006)). 193. Campbell, 510 U.S. at 586. 194. Id. 195. See Blanch, 467 F.3d at 257. 196. Id. 197. 17 U.S.C. § 107(3) (2006). 198. Campbell, 510 U.S. at 587. 199. Id. at 588.

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be effective or funny if the listener cannot recognize the original within the parody. 200 The test for parody is that “the parody must be able to ‘conjure up’ at least enough of that original to make the object of its critical wit recognizable.” 201 Hence, the art of the parody “lies in the tension between a known original and its parodic twin.” 202 This means that the parodist will often appropriate the most popular segments of a song, thereby allowing for easy identification of the original. 203 In Blanch, the appellate court gave great deference to Koons’s artistic goals. 204 The appellate court was charged with considering “whether, once he chose to copy Silk Sandals, he did so excessively, beyond his ‘justified’ purpose.” 205 The appellate court reviewed the creative efforts of the photographer to determine this factor. 206 Blanch put most of her creative expression into the background and setting of her photograph. 207 Because the background of the photograph was removed from the collage painting, the appellate court found that the third factor was “distinctly in Koons’s favor.” 208 “All religions, arts and sciences are branches of the same tree.” 209 The “privilege for parodies alone reaches no more than a fraction of the settings (a small fraction at that) in which transformative appropriations may take place.” 210 It is clear from the Blanch and Campbell opinions that parodies share many qualities with Koons’s work. It follows that mashups, parodies, and collage paintings are all branches of appropriation art. All forms of appropriation art signify their message through the reference, “‘which is expressible only if it is the original that gets used.’” 211 The parody in Campbell was in part 200. Id. 201. Id. 202. Id. 203. Id. 204. See Blanch v. Koons, 467 F.3d 244, 257 (2d Cir. 2006). 205. Id. 206. Id. at 258. 207. Id. 208. Id. 209. MARY MANN, SCIENCE AND SPIRITUALITY 174 (2004) (quoting Albert Einstein). 210. Lange & Anderson, supra note 35, at 146. 211. Tang, supra note 56, at 83 (quoting LAWRENCE LESSIG, REMIX 74–75 (2008)).

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presumptively privileged. 212 In general, mashups “‘almost invariably copy publicly known, expressive works’” 213 and “can only exist with a high level of appropriation; anything less would be insufficient.” 214 Although mashups “do not strictly meet the definition of a parody,” they should be analyzed in the same manner as parodies. 215 Essentially, when addressing these two factors, mashups should receive the same presumptive privilege as parodies earn. 216 C. Market Under the fourth factor of the analysis, courts determine both the market harm caused by the alleged infringer and the aggregate effect that this type of conduct would produce. Therefore, the inquiry considers any possible harm to the derivative market of the original. 217 The only concern when discussing the derivative market for the original is the possibility of market substitution. 218 Some courts maintain the view “‘that the fourth factor will favor the secondary user when the only possible adverse effect occasioned by the secondary use would be to a potential market or value that the copyright holder has not typically sought to, or reasonably been able to, obtain or capture.’” 219 Therefore, “if the copying was not of the type that an author reasonably would have foreseen” prior to the alleged infringement, then the copying cannot be construed as encroaching on the intentions of the original artist. 220 In Blanch, Blanch admitted that Niagara did not cause any harm to her career or plans for the photograph. 221 Furthermore, Blanch conceded that the value of her photography was not lowered by its use in Niagara. 222 212. Lange & Anderson, supra note 35, at 145. 213. Mongillo, supra note 50, at 29 (quoting Campbell v. Acuff-Rose Music, 510 U.S. 569, 586 (1994)). 214. Power, supra note 40, at 598. 215. Id. at 592. 216. See Lange & Anderson, supra note 35, at 145 (discussing how parodies became presumptively privileged). 217. See NXIVM Corp. v. Ross Institute, 364 F.3d 471, 482 (2d Cir. 2004). 218. Id. at 593. 219. Blanch v. Koons, 396 F. Supp. 2d 476, 482 (S.D.N.Y. 2005) (quoting Am. Geophysical Union v. Texaco, Inc., 60 F.3d 913, 930 (1994)). 220. Christopher Sprigman, Copyright and the Rule of Reason, 7 J. TELECOMM. & HIGH TECH. L. 317, 321 (2009). 221. Blanch v. Koons, 467 F.3d 244, 258 (2d Cir. 2006). 222. Id.

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“All that is valuable in human society depends upon the opportunity for development accorded the individual.” 223 Mashup artists use their mashups instrumentally to disrupt the confines of our music culture. 224 They attempt to create works that bridge the gap between genres rather than supersede them. 225 The listeners who seek out these mashups do not do so to hear the originals individually; rather, they wish to invigorate their ears and challenge any musical profiles to which they may adhere. 226 Therefore, “it is highly improbable that listeners will use a mashup as an alternative or substitute for the original songs in the mashup.” 227 The fourth factor of the fair use doctrine should be more concerned with ensuring “‘that credit is given where credit is due.’” 228 Although most musicians would likely be content with simple accreditation by the appropriation artist, 229 requiring some form of accreditation in transformative-appropriation cases could solve most of the mashup artists’ problems. 230 Few artists should complain about appropriation artists remixing or mashing their work. One may infer that for an artist to remix or sample the work of another artist there is some inherent respect or appreciation for that artist. 231 Most importantly, as you will see below, the act of appropriating another’s work can have a promotional result for the original artist. Although the fourth factor, and fair use in general, seeks to determine whether the new work supplants the market of the original, there are theories that the new work actually creates a “new market for the original work[], actually expanding the audience and availability of the original work[].” 232 Although there is a chance that the new work could negatively impact the market of the original, it is

223. NICK LYONS ET. AL., THE APPRAISER’S HANDBOOK: A GUIDE FOR DOCTORS 120 (2006) (quoting Albert Einstein). 224. Mongillo, supra note 50, at 27–28. 225. See id. 226. Id. at 31. 227. Harper, supra note 11, at 434. 228. Williams, supra note 2, at 57 (quoting Rogers v. Koons, 960 F.2d 301, 310 (2d Cir. 1992)). 229. Lange & Anderson, supra note 35, at 155. 230. See id. 231. See Lessig, supra note 12, at 972. 232. Katz, supra note 17, at 57.

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highly unlikely. 233 The possibility that a mashup will infringe on the original artists’ plans to create their own mashups is just as improbable. 234 On the contrary, it is not unreasonable to believe that the mashup will produce beneficial results for the original artist (or in the worst case scenario, have no effect). A mashup has the power to create new fans of the original work(s). But for the mashup, the listener may not have been introduced to the original artist. 235 This new interest in the original artist may even lead to increased sales of the original work. 236 Especially for older works, which become appropriated, the mashup may give the original work “a new lease on life.” 237 The mashup could be a blessing in disguise for the original artist as the majority of pre-appropriated works have likely seen their sales peak. 238 Sampling practices such as these have not only promoted the sampled artists but have also fostered the “development of new postmodern musical forms.” 239 Breaking loose from this tunnel vision would be beneficial. With this narrow viewing of the potential benefit to the original artist’s market, one can only glimpse at the tip of the mashup’s potential. Although this Article discusses the mashup only in the musical sense, there is evidence of the mashup’s footprint in other aspects of life. 240 Therefore, let us broaden our view and explore the mashup’s effect on a larger scale. Living in the digital age has its benefits; certainly one benefit is how technology has allowed us to “connect and collaborate” with each other. 241 Due to the uncertainty of the mashup’s rightful place in 233. See Mongillo, supra note 50, at 31. 234. Harper, supra note 11, at 435. 235. Id. at 441. 236. Id. 237. Meyers, supra note 52, at 243 (citation omitted). 238. See Szymanski, supra note 4, at 320–21 (citing Jeffrey H. Brown, They Don’t Make Music the Way They Used To: The Legal Implications of Sampling in Contemporary Music, 1992 WIS. L. REV. 1941, 1974–75 (1992)). 239. See id. at 288. 240. E.g., Duane Merrill, Mashups: The New Breed of Web App, IBM, July 24, 2009, available at http://public.dhe.ibm.com/software/dw/xml/x-mashups-pdf.pdf (discussing mashup applications); Brian Lamb, Dr. Mashup; or, Why Educators Should Learn To Stop Worrying and Love the Remix, EDUCAUSE REV., July–Aug. 2007, available at http://net.educause.edu/ir/library/pdf/ERM0740.pdf (discussing mashups in education). 241. See Katz, supra note 17, at 39.

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our legal system, our culture’s development is greatly disadvantaged. 242 Companies with the capability to employ the mashup into their business model likely will not take the risk. However, if these companies were given the ability to integrate the mashup into their business, then the result could be beneficial to all. 243 Arguably, the mashup is the key innovation to our future; companies that ignore this innovation “‘risk becoming irrelevant spectators.’” 244 Allowing fair use to permeate our culture will allow American industry to not only remain the world leader in development, but also to induce a period of rapid growth extending well into our future. 245 Fair use industries have stayed afloat during the recent economic decline. 246 These industries “make up one-sixth of the U.S. economy and employ one of every eight workers.” 247 From 2002 to 2007, “[f]air use industries . . . grew at a faster pace than the overall economy.” 248 And from 2002 to 2006, fair use industries were “directly responsible for more than 18% of U.S. economic growth and nearly 11 million American jobs.” 249 Fair use is a fundamental industry in our economy, and with the current decline in economic trends, it would be prudent to reevaluate our application of the fair use doctrine. “‘The ultimate test of fair use . . . is whether the copyright law’s goal of promoting the Progress of Science and useful Arts would be

242. C.f. Lessig, supra note 12, at 971 (stating that modern-day industry could flourish if the remix were free). 243. Id. 244. See Katz, supra note 17, at 39 (quoting DON TAPSCOTT & ANTHONY D. WILLIAMS, WIKINOMICS: HOW MASS COLLABORATION CHANGES EVERYTHING 163 (2006)). 245. Id. at 21, 61. 246. CCIA to Release 2011 Study Calculating Economic Value of “Fair Use,” COMPUTER & COMM. INDUST. ASS’N (July 8, 2011), http://www.ccianet.org/ index.asp?sid=5&artid=244&evtflg=True. 247. Id. 248. THOMAS ROGERS & ANDREW SZAMOSSZEGI, FAIR USE IN THE U.S. ECONOMY: ECONOMIC CONTRIBUTION OF INDUSTRIES RELYING ON FAIR USE 8 (2010), available at http://www.ccianet.org/CCIA/files/ccLibraryFiles/Filename/ 000000000354/fair-use-study-final.pdf. 249. COMPUTER COMMC’NS INDUST. ASS’N, FAIR USE ECONOMY REPRESENTS ONE-SIXTH OF U.S. GDP (Sept. 12, 2007), available at http://www.ccianet.org/index.asp.

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better served by allowing the use than by preventing it.’” 250 If appropriation artists like Koons may exercise their talent through fair use, then there is no reason why mashup artists, such as Girl Talk or Danger Mouse, should not be extended the same privilege. 251 The fair use doctrine may prove to be a most powerful tool for our future. The Blanch opinions demonstrate a fair use determination in line with the original goal of copyright law. If courts use the Blanch opinions as a framework when applying the fair use factors in appropriation cases, then Progress may finally be restored to copyright law. IV. THE SOLUTION “To raise new questions, new possibilities, to regard old questions from a new angle, requires creative imagination and marks real advance in science.” 252 We live in an age where society is willing to accept the mashup as a legitimate, creative work. 253 Because America has been deemed a “nation of infringers,” 254 we could not be further from the purpose of copyright law than we are today. The current legal system disciplines those who employ this widespread practice. 255 “The refusal to acknowledge the new reactionary mode of artistic production actually means that it is defying Progress.” 256 If today’s copyright regime had been in power “‘from 1905 to 1975, we would not have modern art as we know it.’” 257 Before the digital age, copyright evolved with technology to provide our culture with the room to grow. 258 The expanded group of protected works enumerated in the Copyright Act today developed “in a somewhat piecemeal way, often in response to technological and cultural 250. Blanch v. Koons, 467 F.3d 244, 251 (2d Cir. 2006) (quoting Castle Rock Entm’t Inc. v. Carol Publ’g Grp., 150 F.3d 132, 141 (1998)). 251. C.f. Szymanski, supra note 4, at 289. 252. R. KEITH SAWYER, EXPLAINING CREATIVITY: THE SCIENCE OF HUMAN INNOVATION 90 (2012) (quoting Albert Einstein). 253. Tang, supra note 56, at 84. 254. Katz, supra note 17, at 40. 255. Harper, supra note 11, at 441 (citing Lessig, supra note 12, at 969). 256. Tang, supra note 56, at 79. 257. Meyers, supra note 52, at 238 (quoting Geraldine Norman, The Power of Borrowed Images, ART & ANTIQUITIES, 123, 128 (Mar. 1996)). 258. See Quentel, supra note 81, at 64.

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developments.” 259 We are at a pivotal moment in this digital age where, if permitted, our culture could grow at an exponential rate. If we wish for this wave of development to continue, then the law must acquiesce to “a greater degree of appropriation” than it has in the past. 260 Many seek to amend the fair use doctrine. It would be more judicious to scrutinize the principles embedded in the four factors. The moment Progress is found within every opinion, only then will the doctrine finally sing in tune with the goal of copyright. “We are at that moment in which we as readers can, and do, participate in writing our culture.” 261 Great technological growth of the digital age has brought greater interaction, creating what we now call a participatory culture. 262 Today’s technology enables consumers to “author their own lives.” 263 Under our current copyright practices, the user takes second place to the copyright owner. 264 But today’s user is tomorrow’s artist. 265 If the courts saw the user in the same light as they see the artist, then a dramatic cultural shift would surely follow. 266 “The value of a man should be seen in what he gives and not in what he is able to receive.” 267 The fair use analysis currently revolves around the defendant’s use of the plaintiff’s work. 268 However, if the courts were to centralize its analysis on the result of the defendant’s use rather than the steps used to reach those results, then not only would the doctrine better serve the purpose of copyright, 269 but it also would complete the long-awaited distinction between creative and consumptive

259. Carpenter, supra note 15, at 51. 260. Lange & Anderson, supra note 35, at 132. 261. Tang, supra note 56, at 84. 262. See Harper, supra note 11, at 444. 263. Williams, supra note 2, at 63 (quoting YOCHAI BENKLER, THE WEALTH OF NETWORKS: HOW SOCIAL PRODUCTION TRANSFORMS MARKETS AND FREEDOM 175 (2006)). 264. Wong, supra note 53, at 1097. 265. Id. 266. See id. at 1080. 267. JOEY O’BRIEN, THE GODS ARE ANGRY 37 (2011) (quoting Albert Einstein). 268. Wong, supra note 53, at 1109. 269. See id.

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infringement. 270 Our fair use standards do not treat “the enterpriselevel bootlegger and the creative mashup artist” any differently. 271 As a result, the war against piracy is smothering a movement, a genre, an industry, and a critical mode of expression in our current culture. 272 The creative-versus-consumptive illustration evidences that an urgent change in focus is needed. 273 Not only will a change in focus center on the achieved results of the appropriation artist, but also the “intentions of the plaintiff copyright holder in bringing the suit.” 274 If we have the copyright holder “show substantial actual or likely harm” in an infringement suit, 275 then we promote judicial economy and bring clarity to the inconsistent application of the fair use analysis we have seen in recent years. 276 If the courts were to constantly decide cases in which harm was demonstrated by the plaintiff, the opinions would begin to generate a wealth of constructive “information about the harms and benefits of different uses of copyrighted works.” 277 With a better understanding of the interplay between certain uses and harms, the law can focus on regulating the harms rather than the incentives to create. 278. “The copyright law embodies a recognition that creative intellectual activity is vital to the well-being of society.” 279 Creative works are the threads from which we weave the fabric of our culture. 280 For our culture to thrive, these creative works must be accessible to the public at large. 281 “‘After all, we live in an age of information. It doesn’t make sense to limit what you take in.’” 282 Our 270. See Terry Hart, Creative vs. Consumptive Infringement, COPYHYPE (Sept. 22, 2010), http://www.copyhype.com/2010/09/creative-vs-consumptiveinfringement. 271. Katz, supra note 17, at 38. 272. See Lessig, supra note 12, at 966. 273. See Hart, supra note 270. 274. Leval, supra note 34, at 1127–28. 275. See Sprigman, supra note 220, at 323–24. 276. See id. 277. Id. at 324. 278. See id. at 320. 279. Leval, supra note 34, at 1109. 280. See Sprigman, supra note 220, at 319. 281. See id. 282. Meyers, supra note 52, at 236 (quoting Raphael Rubinstein, Abstraction in a Changing Environment, ART IN AM. 102, 104 (Oct. 1994)).

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culture and the law are interlaced to such an extent that a sudden shift in one will be felt in the other. 283 “We can’t predict how technology will change music, so more fair uses may manifest in the future. The flexibility of the fair use doctrine will allow the law to adapt to these changes in technology and society.” 284 CONCLUSION The ultimate goal of copyright is embodied in the fair use doctrine. To progress is to push known limits. By reevaluating our past and recontextualizing the views and attitudes of the former time, our culture is able to build from our accomplishments and better our society as a whole. The mashup, by definition, recontextualizes preexisting ideas into a new expression. The mashup may be the single most effective vehicle of Progress that our world has ever seen. With its application present in the arts, education, and digital infrastructure, we stand in the early stages of a mashup movement. If we are to maximize the benefits of this movement, then the law must be willing to accept the mashup as an integral part of our culture and remove the governor from this vehicle of Progress. DANIEL CHERRY *

283. See Tang, supra note 56, at 102. 284. Mongillo, supra note 50, at 31–32. * Daniel Cherry is in his third term at Thomas M. Cooley Law School and is enrolled in the J.D./LL.M. program for Intellectual Property. A senior member of the Thomas M. Cooley Law Review, Daniel works alongside his fellow Assistant Board of Editors. Before entering Cooley he received his bachelor’s degree from Central Michigan University’s School of Music. There he studied double bass and performed as a member of the CMU Symphony Orchestra.