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

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.