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

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.