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

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.