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

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520 THOMAS M. COOLEY LAW REVIEW [Vol. 28:3 our legal system, our culture’s development is greatly disadvantaged. 242 Companies with the capability to employ the mashup into their business model likely will not take the risk. However, if these companies were given the ability to integrate the mashup into their business, then the result could be beneficial to all. 243 Arguably, the mashup is the key innovation to our future; companies that ignore this innovation “‘risk becoming irrelevant spectators.’” 244 Allowing fair use to permeate our culture will allow American industry to not only remain the world leader in development, but also to induce a period of rapid growth extending well into our future. 245 Fair use industries have stayed afloat during the recent economic decline. 246 These industries “make up one-sixth of the U.S. economy and employ one of every eight workers.” 247 From 2002 to 2007, “[f]air use industries . . . grew at a faster pace than the overall economy.” 248 And from 2002 to 2006, fair use industries were “directly responsible for more than 18% of U.S. economic growth and nearly 11 million American jobs.” 249 Fair use is a fundamental industry in our economy, and with the current decline in economic trends, it would be prudent to reevaluate our application of the fair use doctrine. “‘The ultimate test of fair use . . . is whether the copyright law’s goal of promoting the Progress of Science and useful Arts would be 242. C.f. Lessig, supra note 12, at 971 (stating that modern-day industry could flourish if the remix were free). 243. Id. 244. See Katz, supra note 17, at 39 (quoting DON TAPSCOTT & ANTHONY D. WILLIAMS, WIKINOMICS: HOW MASS COLLABORATION CHANGES EVERYTHING 163 (2006)). 245. Id. at 21, 61. 246. CCIA to Release 2011 Study Calculating Economic Value of “Fair Use,” COMPUTER & COMM. INDUST. ASS’N (July 8, 2011), http://www.ccianet.org/ index.asp?sid=5&artid=244&evtflg=True. 247. Id. 248. THOMAS ROGERS & ANDREW SZAMOSSZEGI, FAIR USE IN THE U.S. ECONOMY: ECONOMIC CONTRIBUTION OF INDUSTRIES RELYING ON FAIR USE 8 (2010), available at http://www.ccianet.org/CCIA/files/ccLibraryFiles/Filename/ 000000000354/fair-use-study-final.pdf. 249. COMPUTER COMMC’NS INDUST. ASS’N, FAIR USE ECONOMY REPRESENTS ONE-SIXTH OF U.S. GDP (Sept. 12, 2007), available at http://www.ccianet.org/index.asp.
2011] FAIR USE FRAMEWORK 521 better served by allowing the use than by preventing it.’” 250 If appropriation artists like Koons may exercise their talent through fair use, then there is no reason why mashup artists, such as Girl Talk or Danger Mouse, should not be extended the same privilege. 251 The fair use doctrine may prove to be a most powerful tool for our future. The Blanch opinions demonstrate a fair use determination in line with the original goal of copyright law. If courts use the Blanch opinions as a framework when applying the fair use factors in appropriation cases, then Progress may finally be restored to copyright law. IV. THE SOLUTION “To raise new questions, new possibilities, to regard old questions from a new angle, requires creative imagination and marks real advance in science.” 252 We live in an age where society is willing to accept the mashup as a legitimate, creative work. 253 Because America has been deemed a “nation of infringers,” 254 we could not be further from the purpose of copyright law than we are today. The current legal system disciplines those who employ this widespread practice. 255 “The refusal to acknowledge the new reactionary mode of artistic production actually means that it is defying Progress.” 256 If today’s copyright regime had been in power “‘from 1905 to 1975, we would not have modern art as we know it.’” 257 Before the digital age, copyright evolved with technology to provide our culture with the room to grow. 258 The expanded group of protected works enumerated in the Copyright Act today developed “in a somewhat piecemeal way, often in response to technological and cultural 250. Blanch v. Koons, 467 F.3d 244, 251 (2d Cir. 2006) (quoting Castle Rock Entm’t Inc. v. Carol Publ’g Grp., 150 F.3d 132, 141 (1998)). 251. C.f. Szymanski, supra note 4, at 289. 252. R. KEITH SAWYER, EXPLAINING CREATIVITY: THE SCIENCE OF HUMAN INNOVATION 90 (2012) (quoting Albert Einstein). 253. Tang, supra note 56, at 84. 254. Katz, supra note 17, at 40. 255. Harper, supra note 11, at 441 (citing Lessig, supra note 12, at 969). 256. Tang, supra note 56, at 79. 257. Meyers, supra note 52, at 238 (quoting Geraldine Norman, The Power of Borrowed Images, ART & ANTIQUITIES, 123, 128 (Mar. 1996)). 258. See Quentel, supra note 81, at 64.
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