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

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522 THOMAS M. COOLEY LAW REVIEW [Vol. 28:3 developments.” 259 We are at a pivotal moment in this digital age where, if permitted, our culture could grow at an exponential rate. If we wish for this wave of development to continue, then the law must acquiesce to “a greater degree of appropriation” than it has in the past. 260 Many seek to amend the fair use doctrine. <strong>It</strong> would be more judicious to scrutinize the principles embedded in the four factors. The moment Progress is found within every opinion, only then will the doctrine finally sing in tune with the goal of copyright. “We are at that moment in which we as readers can, and do, participate in writing our culture.” 261 Great technological growth of the digital age has brought greater interaction, creating what we now call a participatory culture. 262 Today’s technology enables consumers to “author their own lives.” 263 Under our current copyright practices, the user takes second place to the copyright owner. 264 But today’s user is tomorrow’s artist. 265 If the courts saw the user in the same light as they see the artist, then a dramatic cultural shift would surely follow. 266 “The value of a man should be seen in what he gives and not in what he is able to receive.” 267 The fair use analysis currently revolves around the defendant’s use of the plaintiff’s work. 268 However, if the courts were to centralize its analysis on the result of the defendant’s use rather than the steps used to reach those results, then not only would the doctrine better serve the purpose of copyright, 269 but it also would complete the long-awaited distinction between creative and consumptive 259. Carpenter, supra note 15, at 51. 260. Lange & Anderson, supra note 35, at 132. 261. Tang, supra note 56, at 84. 262. See Harper, supra note 11, at 444. 263. Williams, supra note 2, at 63 (quoting YOCHAI BENKLER, THE WEALTH OF NETWORKS: HOW SOCIAL PRODUCTION TRANSFORMS MARKETS AND FREEDOM 175 (2006)). 264. Wong, supra note 53, at 1097. 265. Id. 266. See id. at 1080. 267. JOEY O’BRIEN, THE GODS ARE ANGRY 37 (2011) (quoting Albert Einstein). 268. Wong, supra note 53, at 1109. 269. See id.
2011] FAIR USE FRAMEWORK 523 infringement. 270 Our fair use standards do not treat “the enterpriselevel bootlegger and the creative mashup artist” any differently. 271 As a result, the war against piracy is smothering a movement, a genre, an industry, and a critical mode of expression in our current culture. 272 The creative-versus-consumptive illustration evidences that an urgent change in focus is needed. 273 Not only will a change in focus center on the achieved results of the appropriation artist, but also the “intentions of the plaintiff copyright holder in bringing the suit.” 274 If we have the copyright holder “show substantial actual or likely harm” in an infringement suit, 275 then we promote judicial economy and bring clarity to the inconsistent application of the fair use analysis we have seen in recent years. 276 If the courts were to constantly decide cases in which harm was demonstrated by the plaintiff, the opinions would begin to generate a wealth of constructive “information about the harms and benefits of different uses of copyrighted works.” 277 With a better understanding of the interplay between certain uses and harms, the law can focus on regulating the harms rather than the incentives to create. 278 . “The copyright law embodies a recognition that creative intellectual activity is vital to the well-being of society.” 279 Creative works are the threads from which we weave the fabric of our culture. 280 For our culture to thrive, these creative works must be accessible to the public at large. 281 “‘After all, we live in an age of information. <strong>It</strong> doesn’t make sense to limit what you take in.’” 282 Our 270. See Terry Hart, Creative vs. Consumptive Infringement, COPYHYPE (Sept. 22, 2010), http://www.copyhype.com/2010/09/creative-vs-consumptiveinfringement. 271. Katz, supra note 17, at 38. 272. See Lessig, supra note 12, at 966. 273. See Hart, supra note 270. 274. Leval, supra note 34, at 1127–28. 275. See Sprigman, supra note 220, at 323–24. 276. See id. 277. Id. at 324. 278. See id. at 320. 279. Leval, supra note 34, at 1109. 280. See Sprigman, supra note 220, at 319. 281. See id. 282. Meyers, supra note 52, at 236 (quoting Raphael Rubinstein, Abstraction in a Changing Environment, ART IN AM. 102, 104 (Oct. 1994)).
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