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

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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.
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