Expressive Manipulation of Copyrighted Media: End-Product Analysis vs. Component Analysis

Before I plunge into extensive editing or commenting (that may not be for another few days), I just wanted to share my first impressions in case you wanted to do more revising. I did my moot court brief on fair use, so that jumped to my mind as I read through this, and I was wondering why you didn't mention it. I'm far from being an expert on the subject, but it seems to me that where "component analysis" comes in is in the initial stage of showing a prima facie copyright infringement by the copyright holders (they need only show that one of their exclusive rights from 17 U.S.C s106 has been infringed). The mashup creator should then be able to try and claim fair use (17 U.S.C. s107) - the biggest two things they need to show is that the new work is transformative (different character/different function, provides different sort of social benefit, etc.) and that it poses no harm to the market of the original song or of its derivatives (not a market substitute) - and in my mind, that's where "end-product analysis" comes in.