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

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512 THOMAS M. COOLEY LAW REVIEW [Vol. 28:3 A lot of people just assumed I took some Beatles and, you know, threw some Jay-Z on top of it or mixed it up or looped it around, but it’s really a deconstruction. It’s not an easy thing to do. I was obsessed with the whole project, that’s all I was trying to do, see if I could do this. Once I got into it, I didn’t think about anything but finishing it. I stuck to those two because I thought it would be more challenging and more fun and more of a statement to what you could do with sampling alone. It is an art form. It is music. You can do different things, it doesn’t have to be just what some people call stealing. It can be a lot more than that. 165 The mashup demands considerable creativity from the artist throughout the entire process. 166 Therefore, “[t]here is no discernible reason to discriminate against mash-ups because the transformation is exclusively done through production work.” 167 Realistically, the process may be more difficult for the mashup artist than for other appropriation artists. Mashup artists must overcome the obstacle of melding not only the clashing samples but also the genres and ideals that are contained in them. When the Supreme Court adopted Judge Pierre Leval’s transformative approach 168 in Campbell v. Acuff-Rose Music, Inc., 169 “it also embraced the aesthetic principle that a secondary user may legitimately use imitation to communicate new meaning about its target without the effect of superseding it—a dynamic central to appropriationism.” 170 It is time to embrace the mashup artist as a secondary user. Mashup artists are constantly challenging their listeners to consider music in new and alternative ways. 171 Even 165. MATTHEW RIMMER, DIGITAL COPYRIGHT AND THE CONSUMER REVOLUTION: HANDS OFF MY IPOD 132–33 (2007) (quoting Corey Moss, Grey Album Producer Danger Mouse Explains How He Did It, MTV NEWS (Mar. 11, 2004, 9:00 PM), http://www.mtv.com/news/articles/1485693/20040311/jay_z.jhtml). 166. Johnson, supra note 9, at 150. 167. Power, supra note 40, at 593. 168. Leval, supra note 34, at 1111. 169. 510 U.S. 569, 579 (1994). 170. Badin, supra note 57, at 1692. 171. See, e.g., Mongillo, supra note 50, at 27.
2011] FAIR USE FRAMEWORK 513 though recontextualization is the means of transformation, as it was in Blanch, there is little doubt that Progress is the end result. 2. Commercial Nature When courts find a transformative use, it tips the first factor in favor of the appropriation artist and often determines the outcome of the fair use analysis as a whole. 172 The commercial aspect of the first factor “‘concerns the unfairness that arises when a secondary user makes unauthorized use of copyrighted material to capture significant revenues as a direct consequence of copying the original work.’” 173 However, courts do take into consideration any public benefit derived from the new work. 174 The public display of art and music clearly has “‘value that benefits the broader public interest.’” 175 The district court in Blanch only commented on the commercial nature of the use; the court said that “[b]oth works were created for commercial purposes.” 176 The appellate court expanded on the commercial nature of the work by acknowledging that “Koons made a substantial profit from the sale of Niagara.” 177 Niagara was part of a seven-painting series commissioned by the bank. 178 Koons was paid $2 million for the entire series. 179 The compensation for Niagara was estimated at $126,877, whereas Blanch was paid $750 for her photograph. 180 Despite the profit derived from Niagra, the appellate court had no trouble finding in favor of Koons under the first factor. 181 172. See Wong, supra note 53, at 1135 (citing Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions 1978–2005, 156 U.PA.L. REV. 549, 604–05 (2008)). 173. Blanch v. Koons, 467 F.3d 244, 253 (2d Cir. 2006) (quoting Am. Geophysical Union v. Texaco, Inc., 60 F.3d 913, 922 (2d Cir. 1994)). 174. Id. 175. Id. at 254; see also 20 U.S.C. § 951(4) (2006) (stating that “access to the arts and the humanities” fosters “wisdom and vision” and makes citizens “masters of their technology and not its unthinking servants”). 176. Blanch v. Koons, 396 F. Supp. 2d 476, 481 (S.D.N.Y. 2005), aff’d, 467 F.3d 244 (2d Cir. 2006). 177. Blanch, 467 F.3d at 253. 178. Id. at 248. 179. Id. 180. Id. at 248, 249. 181. Id. at 251–54.
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