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

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500 THOMAS M. COOLEY LAW REVIEW [Vol. 28:3 that law is designed to foster.’” 31 In that way, the statute was drafted to be malleable and “to accommodate periods ‘of rapid technological change.’” 32 Therefore, bright-line rules will not suffice for a fair use analysis; the statute “calls for [a] case-by-case analysis.” 33 Fair use should not be seen as an exception to the exclusive rights of the copyright owner, but rather as a fundamental aspect of copyright law. 34 If fair use is to be “bent to the service of copyright,” 35 then the very purpose of copyright is lost; a purpose that should be at the heart of every fair use decision. Therefore, copyright “must step aside in favor of fair use,” 36 because fair use is indispensible “to fulfill copyright’s very purpose.” 37 B. The Music Industry Sampling occurs when an artist detaches certain portions of a recording and utilizes them in a new work. 38 The circuits are split on how best to handle a minimal use of sampling in audio recordings. 39 However, this Article goes far beyond a minimal use of sampling and into the realm of the mashup. An audio mashup “is a type of sampling that ‘[t]ypically consist[s] of a vocal track from one song 31. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994) (quoting Stewart v. Abend, 495 U.S. 207, 236 (1990) (citation omitted)). 32. Johnson, supra note 9, at 145 (quoting H.R. REP. NO. 94-1476, at 5680). 33. Campbell, 510 U.S. at 577 (citing Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985)). 34. Pierre N. Leval, Toward a Fair Use Standard, 103 HARV. L. REV. 1105, 1107 (1990). 35. David Lange & Jennifer Lange Anderson, Copyright, Fair Use and Transformative Critical Appropriation 149 (2001) (unpublished essay) (on file with the Conference on the Public Domain at the Duke Law School), available at http://www.law.duke.edu/pd/papers/langeand.pdf. 36. Lange & Anderson, supra note 35, at 149 (emphasis added). 37. See Campbell, 510 U.S. at 575. 38. See Szymanski supra note 4, at 275–76 (citing E. Scott Johnson, Protecting Distinctive Sounds: The Challenge of Digital Sampling, 2 J.L. & TECH. 273 (1987); R. Sugarman & J. Salvo, Sampling Gives Law a New Mix; Whose Rights?, NAT’L L.J., Nov. 11, 1991, at 1). 39. Compare Newton v. Diamond, 388 F.3d 1189 (9th Cir. 2003) (holding that the sampling of a segment of three notes from a composition was de minimis), with Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 801, 803, 805 (6th Cir. 2005) (taking a “literal reading” approach to the “interpretation of the copyright statute” and holding that any sampling is infringement.) (“Get a license or do not sample.” Id.).
2011] FAIR USE FRAMEWORK 501 digitally superimposed on the instrumental track of another.’” 40 Unlike the sampling artists who attempt to slyly dissolve the sample into a new work, the mashup artist is not attempting to “hide the authorship of the prior recordings, nor claim them as his own work.” 41 Although the practice of mashing could be seen as lacking creativity, 42 it is the product of this process that conceals the true creative engineering. 43 Whether in a mashup or remix, sampling is so prevalent in the music industry that many see it as vital to our music culture. 44 Notwithstanding the various infringement suits filed against sampling artists, the genre gains popularity at an ever-increasing pace. 45 For example, in 2005, a mashup album containing the work of the artists Jay-Z and Linkin Park made the Billboard Top Ten. 46 Billboard.com also hosts Mashup Mondays, in which a mashup and mashup artist are featured each week. 47 An even more impressive example is Danger Mouse’s The Grey Album, a mashup album created from Jay- Z’s The Black Album and The Beatles’s White album. 48 More than 100 million tracks were downloaded in one day, making it the largest single-day download in history. 49 Although this style of music seems to exceed the boundaries of what is typical, 50 repurposing decades of 40. Aaron Power, 15 Megabytes of Fame: A Fair Use Defense for Mash-ups as DJ Culture Reaches Its Postmodern Limit, 35 SW. U. L. REV. 577, 579 (2007) (alterations in original) (quoting Pete Rojas, Bootleg Culture, SALON (Aug. 1, 2002, 3:30 PM), http://archive.salon.com/tech/feature/2002/08/01/bootlegs). 41. Id. at 585. 42. See Harper, supra note 11, at 410–11. 43. See Power, supra note 40, at 589 (stating that the aim of the mashup is to “retain as much as possible from the original works so that the combination seems natural”). 44. Szymanski, supra note 4, at 278 (citing Howard Reich, Send in the Clones, The Brave New Art of Stealing Musical Sounds, CHI. TRIB., Feb. 15, 1987, at 8). 45. See Harper, supra note 11, at 410 (citing Power, supra note 40, at 583, 586). 46. See Katz, supra note 17, at 32. 47. BILLBOARD, www.billboard.com/column/mashupmondays (last visited Nov. 20, 2012). 48. See Power, supra note 40, at 580 (citing Rob Walker, The Grey Album, N.Y. TIMES MAGAZINE, Mar. 21, 2004, at 32). 49. Id. at 580–81. 50. See David Mongillo, The Girl Talk Dilemma: Can Copyright Law Accommodate New Forms of Sample-Based Music?, 9 U. PITT. J. TECH. L. & POL’Y, Spring 2009, at 3.
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Blanch It, Mix It, Mash It - Thomas M. Cooley Law School

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