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

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516 THOMAS M. COOLEY LAW REVIEW [Vol. 28:3 be effective or funny if the listener cannot recognize the original within the parody. 200 The test for parody is that “the parody must be able to ‘conjure up’ at least enough of that original to make the object of its critical wit recognizable.” 201 Hence, the art of the parody “lies in the tension between a known original and its parodic twin.” 202 This means that the parodist will often appropriate the most popular segments of a song, thereby allowing for easy identification of the original. 203 In Blanch, the appellate court gave great deference to Koons’s artistic goals. 204 The appellate court was charged with considering “whether, once he chose to copy Silk Sandals, he did so excessively, beyond his ‘justified’ purpose.” 205 The appellate court reviewed the creative efforts of the photographer to determine this factor. 206 Blanch put most of her creative expression into the background and setting of her photograph. 207 Because the background of the photograph was removed from the collage painting, the appellate court found that the third factor was “distinctly in Koons’s favor.” 208 “All religions, arts and sciences are branches of the same tree.” 209 The “privilege for parodies alone reaches no more than a fraction of the settings (a small fraction at that) in which transformative appropriations may take place.” 210 It is clear from the Blanch and Campbell opinions that parodies share many qualities with Koons’s work. It follows that mashups, parodies, and collage paintings are all branches of appropriation art. All forms of appropriation art signify their message through the reference, “‘which is expressible only if it is the original that gets used.’” 211 The parody in Campbell was in part 200. Id. 201. Id. 202. Id. 203. Id. 204. See Blanch v. Koons, 467 F.3d 244, 257 (2d Cir. 2006). 205. Id. 206. Id. at 258. 207. Id. 208. Id. 209. MARY MANN, SCIENCE AND SPIRITUALITY 174 (2004) (quoting Albert Einstein). 210. Lange & Anderson, supra note 35, at 146. 211. Tang, supra note 56, at 83 (quoting LAWRENCE LESSIG, REMIX 74–75 (2008)).
2011] FAIR USE FRAMEWORK 517 presumptively privileged. 212 In general, mashups “‘almost invariably copy publicly known, expressive works’” 213 and “can only exist with a high level of appropriation; anything less would be insufficient.” 214 Although mashups “do not strictly meet the definition of a parody,” they should be analyzed in the same manner as parodies. 215 Essentially, when addressing these two factors, mashups should receive the same presumptive privilege as parodies earn. 216 C. Market Under the fourth factor of the analysis, courts determine both the market harm caused by the alleged infringer and the aggregate effect that this type of conduct would produce. Therefore, the inquiry considers any possible harm to the derivative market of the original. 217 The only concern when discussing the derivative market for the original is the possibility of market substitution. 218 Some courts maintain the view “‘that the fourth factor will favor the secondary user when the only possible adverse effect occasioned by the secondary use would be to a potential market or value that the copyright holder has not typically sought to, or reasonably been able to, obtain or capture.’” 219 Therefore, “if the copying was not of the type that an author reasonably would have foreseen” prior to the alleged infringement, then the copying cannot be construed as encroaching on the intentions of the original artist. 220 In Blanch, Blanch admitted that Niagara did not cause any harm to her career or plans for the photograph. 221 Furthermore, Blanch conceded that the value of her photography was not lowered by its use in Niagara. 222 212. Lange & Anderson, supra note 35, at 145. 213. Mongillo, supra note 50, at 29 (quoting Campbell v. Acuff-Rose Music, 510 U.S. 569, 586 (1994)). 214. Power, supra note 40, at 598. 215. Id. at 592. 216. See Lange & Anderson, supra note 35, at 145 (discussing how parodies became presumptively privileged). 217. See NXIVM Corp. v. Ross Institute, 364 F.3d 471, 482 (2d Cir. 2004). 218. Id. at 593. 219. Blanch v. Koons, 396 F. Supp. 2d 476, 482 (S.D.N.Y. 2005) (quoting Am. Geophysical Union v. Texaco, Inc., 60 F.3d 913, 930 (1994)). 220. Christopher Sprigman, Copyright and the Rule of Reason, 7 J. TELECOMM. & HIGH TECH. L. 317, 321 (2009). 221. Blanch v. Koons, 467 F.3d 244, 258 (2d Cir. 2006). 222. Id.
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