Hastings Communications and Entertainment Law Journal


Caroline Kinsey


With the rise of online blogging, social networking platforms, and videosharing sites such as YouTube and Yahoo Video, it is now possible for one individual to rival the span of entire media empires from one's basement computer. Commonly known as the Web 2.0 phenomenon, the combination of these technological advancements with video platforms that encourage users to "engage, create, and share content online" has fundamentally transformed the music industry. No longer are fans passive listeners, but instead, with the click of a mouse and access to the Internet, they become "publisher[s], TV network[s], radio station[s], movie studio[s], record label[s], and newspaper[s], all wrapped into one."

This article evaluates the current liability of Mashup Artists, those whom are, for purposes of this article, "individuals who develop video or audio works comprised of two or more segments of pre-existing copyrighted material for personal use, distribution on the Internet, or profit." As the Mashup Artist's creation is often neither entirely the product of his own creativity, nor distributed online with the original copyright holder's permission, he may automatically be deemed a copyright infringer when publishing his work. Thus, he is only able to seek refuge under the fair use doctrine, a four-factor analysis described by critics as "a risky proposition" and "an impediment to... profitable return on digital, remixed creative labor.