The Mouse That Roared: Addressing the Post-Modern Quandary of Mash-ups through Traditional Fair Use Analysis
As evidenced by the popularity of the Grey Album, society is willing to accept this new genre as a type of legitimate, creative work, and courts will be forced to deal with the copyright issues raised by mash-ups as long as records labels attempt to silence them. Fair use may provide a defense for mash-ups if courts are willing to acknowledge that the genre shares the core elements of parody and apply that line of cases. Mash-ups are transformative uses that do not supplant the market for the original, nor do they harm the market for traditional sample licenses. Like parodies, they must be allowed to use parts of preexisting works to "conjure up" the originals in the listener in order to be created. To quell this new form of cultural feedback would disserve the constitutional goal of copyright by restricting the public's access to free works that do not economically injure the original authors.