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

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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.
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