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

More documents

Recommendations

Info

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.
Page 1 and 2: COMMENT BLANCH IT, MIX IT, MASH IT:
Page 3 and 4: 2011] FAIR USE FRAMEWORK 497 “A p
Page 5 and 6: 2011] FAIR USE FRAMEWORK 499 copyri
Page 7 and 8: 2011] FAIR USE FRAMEWORK 501 digita
Page 9 and 10: 2011] FAIR USE FRAMEWORK 503 Approp
Page 11: 2011] FAIR USE FRAMEWORK 505 define
Page 15 and 16: 2011] FAIR USE FRAMEWORK 509 so gra
Page 17 and 18: 2011] FAIR USE FRAMEWORK 511 writte
Page 19 and 20: 2011] FAIR USE FRAMEWORK 513 though
Page 21 and 22: 2011] FAIR USE FRAMEWORK 515 sugges
Page 23 and 24: 2011] FAIR USE FRAMEWORK 517 presum
Page 25 and 26: 2011] FAIR USE FRAMEWORK 519 highly
Page 27 and 28: 2011] FAIR USE FRAMEWORK 521 better
Page 29 and 30: 2011] FAIR USE FRAMEWORK 523 infrin

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

Create successful ePaper yourself

Delete template?

Save as template?