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

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.