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

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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.
2011] FAIR USE FRAMEWORK 519 highly unlikely. 233 The possibility that a mashup will infringe on the original artists’ plans to create their own mashups is just as improbable. 234 On the contrary, it is not unreasonable to believe that the mashup will produce beneficial results for the original artist (or in the worst case scenario, have no effect). A mashup has the power to create new fans of the original work(s). But for the mashup, the listener may not have been introduced to the original artist. 235 This new interest in the original artist may even lead to increased sales of the original work. 236 Especially for older works, which become appropriated, the mashup may give the original work “a new lease on life.” 237 The mashup could be a blessing in disguise for the original artist as the majority of pre-appropriated works have likely seen their sales peak. 238 Sampling practices such as these have not only promoted the sampled artists but have also fostered the “development of new postmodern musical forms.” 239 Breaking loose from this tunnel vision would be beneficial. With this narrow viewing of the potential benefit to the original artist’s market, one can only glimpse at the tip of the mashup’s potential. Although this Article discusses the mashup only in the musical sense, there is evidence of the mashup’s footprint in other aspects of life. 240 Therefore, let us broaden our view and explore the mashup’s effect on a larger scale. Living in the digital age has its benefits; certainly one benefit is how technology has allowed us to “connect and collaborate” with each other. 241 Due to the uncertainty of the mashup’s rightful place in 233. See Mongillo, supra note 50, at 31. 234. Harper, supra note 11, at 435. 235. Id. at 441. 236. Id. 237. Meyers, supra note 52, at 243 (citation omitted). 238. See Szymanski, supra note 4, at 320–21 (citing Jeffrey H. Brown, They Don’t Make Music the Way They Used To: The Legal Implications of Sampling in Contemporary Music, 1992 WIS. L. REV. 1941, 1974–75 (1992)). 239. See id. at 288. 240. E.g., Duane Merrill, Mashups: The New Breed of Web App, IBM, July 24, 2009, available at http://public.dhe.ibm.com/software/dw/xml/x-mashups-pdf.pdf (discussing mashup applications); Brian Lamb, Dr. Mashup; or, Why Educators Should Learn To Stop Worrying and Love the Remix, EDUCAUSE REV., July–Aug. 2007, available at http://net.educause.edu/ir/library/pdf/ERM0740.pdf (discussing mashups in education). 241. See Katz, supra note 17, at 39.
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