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

514 THOMAS M. COOLEY LAW REVIEW [Vol. 28:3
The commercial aspect is likely to be in the artist’s favor whether
or not the artist has economic motives. Some artists in the mashup
community “choose not to release commercial albums.” 182 The result
is a chilling effect on this modern form of artistic expression. 183
Other artists create for purposes other than money, suggesting that at
least some “mashup artists have noneconomic motives.” 184 That is
why the majority of mashups are found on the Internet free of
charge. 185 For those artists who seek a profit from their work, the
Blanch decisions demonstrate how the transformative value greatly
outweighs the commercial nature of the subsequent work. For
example, due to the highly transformative nature of Niagara, even
the hefty profit made by Koons was of little consequence to the
outcome of the first factor.
The ultimate goal of copyright law is to promote Progress. 186 It
clearly follows that the first factor “is the soul of fair use.” 187
Therefore, a finding of justification under the first-factor analysis is
“indispensible to a fair use defense.” 188 This section has shown that
many aspects of appropriation art are transformative. There is
transformative value in each step—from conception to unveiling. Not
only are the artist’s purposes and goals direct support of the
transformative value of the new work, but also the artistic process
itself is highly transformative. The appropriated material goes
through a metamorphosis of sorts. The appropriation artist captures
the idea from the original image and employs it as raw material. The
idea is given new context as the raw materials become native in the
new work and all expression that stems from the original is stripped
away. The final transformation gives appropriation art its meaning.
The mélange of ideas at play in the new work transports the audience
into a new dimension; a dimension where the seemingly familiar is
unlike anything advanced in the past. In that way, the appropriation
artist successfully transforms the audience, which in turn fosters
public growth and Progress in the Arts. The above discussion
182. Harper, supra note 11, at 410.
183. See id.
184. Id. at 427.
185. Power, supra note 40, at 594.
186. U.S. CONST. art. I, § 8, cl. 8.
187. Leval, supra note 34, at 1116.
188. Id.