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

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unpublished shall not itself bar a finding of fair use if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).