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

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502 THOMAS M. COOLEY LAW REVIEW [Vol. 28:3 music that span a multitude of genres has “created a new and enduring form of music.” 51 Living in what some call a remix culture, 52 society relishes “appropriation as a means of critical expression.” 53 Even with the myriad of infringement suits filling the dockets, this art form gains appreciation at a bristling pace. 54 Therefore, the courts would be wise to heed the words of former United States Supreme Court Justice Oliver Wendell Holmes: It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme, some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. 55 Ergo, the “law cannot, and should not, dictate the norms of art.” 56 Because the mashup has not yet been ruled on, there is concern that the law will dictate the norm of this art form. There is a high likelihood that the mashup will be shuffled in with cases interpreting digital sampling. Although the mashup is technically a form of digital sampling, it should instead be affiliated with appropriation art. Appropriation has been described as many things: a language; 57 an allegorical mechanism; 58 and, most importantly, a movement. 59 51. Johnson, supra note 9, at 138. 52. Emily Meyers, Art on Ice: The Chilling Effect of Copyright on Artistic Expression, 30 COLUM. J.L. & ARTS 219, 236 (2007) (quoting Marjorie Heins and Tricia Beckles, Will Fair Use Survive? Free Expression in the Age of Copyright— A Public Policy Report, at 3 (2005), available at http://www.fepproject.org/ policyreports/WillFairUseSurvive.pdf). 53. Mary W.S. Wong, “Transformative” User-Generated Content in Copyright Law: Infringing Derivative Works or Fair Use?, 11 VAND. J. ENT. & TECH. L. 1075, 1111 (2009). 54. Id. 55. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903). 56. Xiyin Tang, That Old Thing, Copyright . . . : Reconciling the Postmodern Paradox in the New Digital Age, 39 AIPLA Q.J. 71, 72 (2011). 57. Roxana Badin, An Appropriate(d) Place in Transformative Value: Appropriation Art’s Exclusion from Campbell v. Acuff-Rose Music, Inc., 60 BROOK. L. REV. 1653, 1656 (1995). 58. Id. at 1660.
2011] FAIR USE FRAMEWORK 503 Appropriation focuses on the selection and removal of another artist’s material and subsequent inclusion into a new creation. 60 “[T]o appropriate is to challenge, to expose, and thus to transcend the conceits and boundaries of the past, thereby gaining insight into what was unacknowledged or opaque.” 61 This art form “assume[s] a deliberate role in the transmission of [our] culture.” 62 Appropriation is the instrument with which the artist can combat this mass-media driven world in which we live. 63 It confronts the ideals of our past and forces the audience to see them in a new light. 64 Accordingly, appropriation “liberates us from [the] constructs” 65 of what is known by recontextualizing what would otherwise be familiar. 66 Thus, to fully appreciate the final work one must imagine the appropriated portion in its original context as well as the context in which it has been placed by the mashup artist. 67 A common form of appropriation is collage, which creates a “new combination, use, or assemblage of existing works.” 68 Collage is not seen only in the visual-art world; many view digital sampling as a form of collage. 69 Like the visual artist, the sampling artist removes segments from recordings and “piece[s] them together into song collages.” 70 “Arguably, the whole point of such sampling is to dislocate the sound fragment from its initial context, and thereby to empty the sample of its former meaning by infusing it with a new 59. Rachel Isabelle Butt, Appropriation Art and Fair Use, 25 OHIO ST. J. ON DISP. RESOL. 1055, 1059–60 (2010). 60. Id. (citing Patricia Krieg, Copyright, Free Speech, and the Visual Arts, 93 YALE L.J. 1565, 1571 (1984); William M. Landes, Copyright, Borrowed Images, and Appropriation Art: An Economic Approach, 9 GEO. MASON L. REV. 1, 1 (2000)). 61. Lange & Anderson, supra note 35, at 132. 62. Id. at 137. 63. Tang, supra note 56, at 97–98. 64. See Badin, supra note 57, at 1660. 65. Tang, supra note 56, at 101. 66. Badin, supra note 57, at 1668. 67. Tang, supra note 56, at 101. 68. Wong, supra note 53, at 1086. 69. Szymanski, supra note 4, at 282 (citing Alan Korn, Comment, Renaming that Tune: Aural Collage, Parody and Fair Use, 22 GOLDEN GATE U. L. REV. 321, 326 (1992)). 70. Mongillo, supra note 50, at 2 (citing Robert Levine, Steal this Hook? DJ Skirts Copyright Law, N.Y. TIMES, (Aug. 7, 2008), http://www.nytimes.com/2008/ 08/07/arts/music/07girl.html).
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Blanch It, Mix It, Mash It - Thomas M. Cooley Law School

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