[A]ccording to this court, the more uncommon (and provocative) the context of the remixing, the less likely it is legal. Of course, this raises the question of how new contexts can ever become legal. Presumably, at some point in history, no one framed art. Then the first person came along and put a painting in a frame. Under the theories in Mirage and Munoz, that person would have been historically guilty of copyright infringement because the context of their remix was uncommon at the time.
The Mirage and Munoz decisions have also been criticized by many commentators as wrongly decided in light of the First Sale Doctrine, which basically says that once you buy a copy of some media, you can do whatever the heck you want with that particular physical copy as long as you do not make additional “copies” that would otherwise violate the law. This is why Blockbuster can rent films without the MPAA’s permission and why used bookstores exist.
One would think that under First Sale, the thing you buy is the thing you own, even if its digital. Ergo, when Kuleshov acquired his films, he could remix them anyway he wanted because he was only manipulating the one copy he owned, not making any additional ones. But Mirage and Munoz cast some doubt on that, again suggesting that if you do anything creative with something you bought, you’re violating the law. Not a very good message for the artistic community.