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

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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 <strong>Law</strong> 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.
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