Blanch It, Mix It, Mash It - Thomas M. Cooley Law School

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).

496 THOMAS M. COOLEY LAW REVIEW [Vol. 28:3
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)).

2011] FAIR USE FRAMEWORK 497
“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.” 15 As 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 Non-
Experts, 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.

498 THOMAS M. COOLEY LAW REVIEW [Vol. 28:3
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.

2011] FAIR USE FRAMEWORK 499
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).

500 THOMAS M. COOLEY LAW REVIEW [Vol. 28:3
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.).

2011] FAIR USE FRAMEWORK 501
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 Jay-
Z’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.

502 THOMAS M. COOLEY LAW REVIEW [Vol. 28:3
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.

2011] FAIR USE FRAMEWORK 503
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).

504 THOMAS M. COOLEY LAW REVIEW [Vol. 28:3
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).

2011] FAIR USE FRAMEWORK 505
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.

506 THOMAS M. COOLEY LAW REVIEW [Vol. 28:3
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.

2011] FAIR USE FRAMEWORK 507
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.

508 THOMAS M. COOLEY LAW REVIEW [Vol. 28:3
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.

2011] FAIR USE FRAMEWORK 509
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.

510 THOMAS M. COOLEY LAW REVIEW [Vol. 28:3
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.

2011] FAIR USE FRAMEWORK 511
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.

512 THOMAS M. COOLEY LAW REVIEW [Vol. 28:3
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.

2011] FAIR USE FRAMEWORK 513
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.

514 THOMAS M. COOLEY LAW REVIEW [Vol. 28:3
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. Harper, supra note 11, at 410.
183. See id.
184. Id. at 427.
185. Power, supra note 40, at 594.
186. U.S. CONST. art. I, § 8, cl. 8.
187. Leval, supra note 34, at 1116.
188. Id.

2011] FAIR USE FRAMEWORK 515
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.

516 THOMAS M. COOLEY LAW REVIEW [Vol. 28:3
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)).

2011] FAIR USE FRAMEWORK 517
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.

518 THOMAS M. COOLEY LAW REVIEW [Vol. 28:3
“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.

2011] FAIR USE FRAMEWORK 519
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.

520 THOMAS M. COOLEY LAW REVIEW [Vol. 28:3
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.

2011] FAIR USE FRAMEWORK 521
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.

522 THOMAS M. COOLEY LAW REVIEW [Vol. 28:3
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.

2011] FAIR USE FRAMEWORK 523
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)).

524 THOMAS M. COOLEY LAW REVIEW [Vol. 28:3
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.