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

518 THOMAS M. COOLEY LAW REVIEW [Vol. 28:3
“All that is valuable in human society depends upon the
opportunity for development accorded the individual.” 223
Mashup artists use their mashups instrumentally to disrupt the
confines of our music culture. 224 They attempt to create works that
bridge the gap between genres rather than supersede them. 225 The
listeners who seek out these mashups do not do so to hear the
originals individually; rather, they wish to invigorate their ears and
challenge any musical profiles to which they may adhere. 226
Therefore, “it is highly improbable that listeners will use a mashup as
an alternative or substitute for the original songs in the mashup.” 227
The fourth factor of the fair use doctrine should be more
concerned with ensuring “‘that credit is given where credit is
due.’” 228 Although most musicians would likely be content with
simple accreditation by the appropriation artist, 229 requiring some
form of accreditation in transformative-appropriation cases could
solve most of the mashup artists’ problems. 230 Few artists should
complain about appropriation artists remixing or mashing their work.
One may infer that for an artist to remix or sample the work of
another artist there is some inherent respect or appreciation for that
artist. 231 Most importantly, as you will see below, the act of
appropriating another’s work can have a promotional result for the
original artist.
Although the fourth factor, and fair use in general, seeks to
determine whether the new work supplants the market of the original,
there are theories that the new work actually creates a “new market
for the original work[], actually expanding the audience and
availability of the original work[].” 232 Although there is a chance that
the new work could negatively impact the market of the original, it is
223. NICK LYONS ET. AL., THE APPRAISER’S HANDBOOK: A GUIDE FOR DOCTORS
120 (2006) (quoting Albert Einstein).
224. Mongillo, supra note 50, at 27–28.
225. See id.
226. Id. at 31.
227. Harper, supra note 11, at 434.
228. Williams, supra note 2, at 57 (quoting Rogers v. Koons, 960 F.2d 301, 310
(2d Cir. 1992)).
229. Lange & Anderson, supra note 35, at 155.
230. See id.
231. See Lessig, supra note 12, at 972.
232. Katz, supra note 17, at 57.