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

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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.
2011] FAIR USE FRAMEWORK 515 suggests that appropriation art is highly transformative; therefore, a mashup artist will likely prevail on the first factor. B. Nature and Amount The second and third factors will be addressed together. Due to their technical similarities to parodies, this section proposes that courts should treat mashups similar to parodies when considering these two factors. In the leading Supreme Court decision on fair use, Campbell v. Acuff-Rose Music, Inc., the Court found the commercial parody of another artist’s song a fair use. 189 The second factor in the fair use analysis is “the nature of the copyrighted work.” 190 This factor points to the notion that certain types of “works are closer to the core of intended copyright protection than others.” 191 This factor actually asks one to categorize the work as either expressive/creative or factual/informational. 192 In Campbell, the Court acknowledged that this distinction was “not much help in this case.” 193 Because “parodies almost invariably copy publicly known, expressive works,” this factor does not really tip in favor of either party. 194 The appellate court in Blanch realized that parodies and appropriation art are similar in that respect. 195 Therefore, the appellate court in Blanch concluded that the second factor had limited usefulness in the overall fair use inquiry. 196 As in Campbell, the second factor in Blanch was, in essence, dismissed from the overall fair use analysis. The third factor is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” 197 This factor considers the quantity and quality of the materials used. 198 Again, the Campbell Court found this factor to be of little help. 199 Parody cannot 189. 510 U.S. 569, 583–84 (1994). 190. 17 U.S.C. § 107(2) (2006). 191. Campbell, 510 U.S. at 586. 192. Blanch v. Koons, 467 F.3d 244, 256 (2d Cir. 2006) (quoting HOWARD B. ABRAMS, THE LAW OF COPYRIGHT § 15:52 (2006)). 193. Campbell, 510 U.S. at 586. 194. Id. 195. See Blanch, 467 F.3d at 257. 196. Id. 197. 17 U.S.C. § 107(3) (2006). 198. Campbell, 510 U.S. at 587. 199. Id. at 588.
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Blanch It, Mix It, Mash It - Thomas M. Cooley Law School

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