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

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498 THOMAS M. COOLEY LAW REVIEW [Vol. 28:3 Thus, we approach a legal crossroads—one that may transform more than just the music industry. 22 This Article expounds on the legality of the mashup 23 under copyright law. Primarily, it proposes a fair use framework to be applied in the event that a mashup artist is sued for copyright infringement. The mashup may very well be the turning point of our time, and if not handled with great care, then the outcome could agitate the growth of our culture in more ways than one. Part II of this Article provides a brief glimpse into copyright law and the fair use doctrine, and it presents some information about the music industry and the popular art forms that thrive in it today. Part II also details two major concerns regarding the application of the fair use analysis. Part III addresses some major concerns revolving around recent applications of fair use. Part IV then takes a step-bystep approach to the fair use doctrine. In doing so, this section attempts to provide support for the mashup as a creature of appropriation that is above that of sampling. Part V demonstrates that amending the Copyright Act to solve our problems is not the most effective solution. A change in focus not only provides instantaneous results but also contains the forward thinking required to make a lasting change. Finally, Part VI combines these illustrations and reinforces the goal of copyright as the infrastructure upon which this Article’s framework stands. I. BACKGROUND A. Copyright <strong>Law</strong> Copyright law stems from the same document that rooted our nation. The Copyright Clause contained within the Constitution of the United States gives Congress the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” 24 Copyright law grants the copyright owner the exclusive right to create “derivative works based upon the 22. See Harper, supra note 11, at 408 (citing Mongillo, infra note 50, at 3) (“[T]here is great uncertainty surrounding the legality of mashups because courts have not yet addressed the matter.”Id.). 23. See infra text accompanying note 40. 24. U.S. CONST. art. I, § 8, cl. 8.
2011] FAIR USE FRAMEWORK 499 copyrighted work.” 25 Thus, an artist who wishes to utilize the work of another must obtain a license from the original artist. 26 With excessive licensing fees, average artists may be faced with either deserting their art or breaking the law. 27 However, in 1976, Congress incorporated the fair use doctrine into the Copyright Act for the first time. 28 The Act recognized that a successful fair use defense is a complete defense to a claim of infringement: 29 Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. 30 The fair use doctrine insists upon a lax view “‘of the copyright statute when, on occasion, it would stifle the very creativity which 25. 17 U.S.C. § 106(2) (2006). 26. See id. 27. See Harper, supra note 11, at 437–38 (citations omitted). 28. H.R. REP. No. 94-1476, at 65 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5678. 29. Abilene Music, Inc. v. Sony Music Entm’t, Inc., 320 F. Supp. 2d 84, 88 (S.D.N.Y. 2003). 30. 17 U.S.C. § 107 (emphasis added).
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