“Fair Use Myths” Law and Literature 25.1 (spring 2013).

Page 1 1 of 1 DOCUMENT Copyright (c) 2013 The Cardozo School of Law of Yeshiva University Law & Literature Spring, 2013 Law and Literature 25 Law & Literature 50 LENGTH: 5381 words SPECIAL ISSUE ON FUTURES OF FAIR USE: Communicating Fair Use: Norms, Myth, and the Avant-Garde NAME: Peter Decherney BIO: Law & Literature, Vol. 25, Issue 1, pp. 50-64. ISSN 1535-685x, electronic ISSN 1541-2601. (c) 2013 by The Cardozo School of Law of Yeshiva University. All rights reserved. Please direct all requests for permission to photocopy or reproduce article content through the University of California Press's Rights and Permissions website, at http://www.ucpressjournals.com/reprintinfo.asp. DOI: 10.1525/lal.2013.25.1.50. LEXISNEXIS SUMMARY: ... Keywords: copyright /fair use / avant-garde / film / cinema / legal norms Only a tiny percentage of fair use disputes find their way to court, or make it onto the legal radar at all. ... These are just a few representative works of American avant-garde film; many more films used copyrighted material without permission. :201;15125:93381006505a;1 FIGURE 1 Throughout the 1960s and 1970s, American avant-garde films drew larger audiences and gained the attention of the mainstream press. ... The faulty story of Anger's bravado circulated widely, and it encouraged avant-garde filmmakers to use music more freely and creatively. ... The fast-cut shower sequence, for example, morphs into a meditative and disjointed experience in the video work. :201;15125:93381006505c;1 FIGURE 3 Amidst all of the creative uses of copyrighted material reused in video art, there is one pivotal example of a piece of experimental video that was suppressed by copyright holders: Todd Haynes's 1987 Superstar: The Karen Carpenter Story . ... I think Kenneth Anger was still working out the rights issues on many of his films-- Scorpio Rising --for years after he made it." ... Although it is difficult to say exactly why these two films became myths when they did, we can at least begin by observing that the stories of Scorpio Rising's and Superstar's encounters with fair use crystallized ideological messages at important junctures in the history of the avant-garde. HIGHLIGHT: Abstract: Increasingly, copyright scholars are looking beyond statutes and case law to fair use norms and the behavior of gatekeepers. Much of this scholarship adopts methodologies from the field of economics. This essay suggests a different approach. It chronicles the community of American avant-garde and experimental filmmakers from the 1960s to the 1990s, examining the development, circulation, and influence of fair use myths. It takes seriously the place of storytelling in shaping behaviors based on fair use. Filmmakers seized on fair use stories at pivotal moments in the development of their community. They then altered the stories to reflect social and artistic needs. In some cases, those stories even trumped advice from lawyers when filmmakers made creative decisions. This essay traces the emergence and function of several fair use myths in this field and concludes by suggesting questions and methodologies for future research on fair use myths more generally. Keywords: copyright /fair use / avant-garde / film / cinema / legal norms Page 2 25 Law & Literature 50, *50 TEXT: [*50] Only a tiny percentage of fair use disputes find their way to court, or make it onto the legal radar at all. The vast majority of fair use conflicts and questions are resolved not by judges, but by gatekeepers. Gatekeepers include publishers, film producers, librarians, website managers, and teachers. They determine whether one copyrighted object can be incorporated into another. Gatekeepers may also be venture capitalists, corporate executives, and others who decide to support or halt the development of new technologies that rely on fair use. Finally, there are the gatekeepers in our heads; uncertainty about fair use has caused many inventors, authors, and artists to avoid projects and discard new ideas for fear of a copyright lawsuit. n1 [*51] Increasingly, copyright scholars are looking beyond statutes and case law to fair use norms and the behavior of gatekeepers. Recent studies have examined fans of jambands, like the Grateful Dead, and stand-up comedians. n2 These studies are a major step toward understanding how fair use operates "in the wild." For the most part, however, they follow the economic methodology pioneered by Robert Ellikson in his seminal book Order Without Law, reproducing Ellikson's assumption that extra-legal norms create more efficiency than legal systems do. n3 But fair use norms are only occasionally the result of efficient circumvention of the law. Instead of encouraging stakeholders to optimize their exchange of intellectual property, fair use norms more often enshrine labyrinthine rules, impose unscalable levies on the reuse of work, or preclude fair use entirely. Fair use norms can also permit the unbridled reuse of intellectual property in some communities. I want to suggest that fair use norms are not generally determined through efficiency-maximizing dynamics, but rather through storytelling, which can sometimes function as a form of indirect negotiation. Any attempt to understand how fair use functions beyond the courtroom must take account of the ways that ideas about fair use are communicated to gatekeepers and the public. In other words, we must learn to ask of fair use norms the same sorts of questions that we ask about other normative stories. Where do new stories about fair use come from, and under what conditions do they attain the authority and longevity of myths? How are they perpetuated, elaborated, or eviscerated? How have so many people been persuaded that fair use can be measured in the number of minutes used, or the number of words taken, or the percentage of a work that is copied? Why do so many people think that commercial use is never fair use and, conversely, that noncommercial work is always fair use? How powerful are these myths in influencing behavior? Organized communication campaigns are one clear means that stakeholders use to influence perceptions of fair use. The Recording Industry Association of America (RIAA), the Motion Picture Association of America (MPAA), and more recently, library associations and Internet activist groups have all run large-scale educational campaigns to shape perceptions about copyright and fair use. In 2005, for example, the Business Software Alliance, an organization that represents the interests of large software companies, published a comic book series featuring "Garret the Copyright [*52] Ferret" to discourage software piracy. The following year, the MPAA convinced a Los Angeles Boy Scout troop to award "Respect Copyrights" merit patches (not quite as weighty as badges) to scouts who "learn[ed] about the evils of downloading." In response, the activist organization the Electronic Frontier Foundation launched several of its own educational campaigns, including the 2009 "Teaching Copyright" campaign aimed at educating young people about fair use. Needless to say, all of these campaigns have differing positions on fair use. n4 It is not clear, however, that organized information campaigns change perceptions about copyright. A recent Social Science Research Council report concludes that these campaigns have "very little" impact on consumers. n5 In my experience, most information about fair use comes in a less overt form. Although harder both to control and to measure, gossip and rumor can be effective tools for influencing fair use practices. And in many instances, silence is the most effective weapon copyright holders have in their arsenal. Ignoring a controversial example of fair use may allow one work to survive, but it does not necessarily help the next work that relies on the same principles. In 2007, for example, a filmmaker named Eric Faden made a short movie by editing together hundreds of Disney film clips, each only a word or two in length. Strung together, these words and phrases spoken by iconic Disney characters explained the basics of copyright law and fair use. n6 How did Disney respond? They did absolutely nothing. Was this fair use? Had Faden sufficiently changed the context? Had he taken too much? Had he entered a market that rightfully belonged to Disney? These are the questions that would have been asked in court. But because Disney did nothing, we will never know the Page 3 25 Law & Literature 50, *52 answers, and moreover, there is no clear precedent for the next filmmaker who wants to take on a similar project. Not every bold example of fair use should end in an expensive lawsuit. Nevertheless, the absence of clear legal decisions about fair use can perpetuate uncertainty in the creative marketplace. And many gatekeepers, especially those who represent large institutions, tend to respond to legal uncertainty with timidity. As a result, it is often in the interest of large media companies to remain silent and preserve the ambiguity of the fair use doctrine. If fair use norms are indeed communicated largely through nonhierarchical and ad hoc networks, then the content of those norms will also vary from community to community. Star Wars fans learn the lessons that they [*53] need to know about fair use from other fans' experience with Lucasfilm. Documentary filmmakers learn from the experience of other documentary filmmakers. And James Joyce scholars follow the interaction between fellow scholars and the Joyce estate. What matters to potential fair users are the attitudes and actions of a particular set of rights holders, not abstract propositions about transformative use, the nature of a work, or market replacement. They want to know that they are engaging in a practice that has not drawn attention from copyright holders in the past, and the best assessment of that risk comes from real world examples, not technical legal categories and decisions. Most fair users want to avoid a fair use lawsuit, not win one. To really understand how fair use myths arise and circulate, we need to chronicle the genesis and dissemination of common narratives. Like case law itself, fair use norms are extracted from a series of stories that are given weight based on the frequency of their telling and the authority of those who repeat them. The remainder of this essay chronicles the changing fair use mythology of one particular community--avant-garde film and video makers--as an example of how fair use myths function and evolve. The experimental film community is of particular interest here for at least three reasons: because it has remained relatively free of fair use litigation; because fair use norms have played an important role in the creative development of the field; and because these norms have shifted over time. The essay traces the emergence and function of several fair use myths in this field and concludes by suggesting questions and methodologies for future research on fair use myths more generally. HOW KENNETH ANGER ACCIDENTALLY REMADE AVANT-GARDE FAIR USE Avant-garde media artists could not work without fair use. One strain of avant-garde art, in particular, has always relied on the principles that animate fair use to challenge the established artistic traditions celebrated in museums and taught in art schools. Pablo Picasso, for example, painted parodic studies of the works of the great masters, including Delacroix, Velázquez, and Manet. Marcel Duchamp used the entire work of another artist when he drew a mustache and goatee on a postcard of perhaps the [*54] greatest symbol of museum art, Leonardo da Vinci's "Mona Lisa" (Fig. I). In this same vein, avant-garde film has had a long tradition of using, reworking, and commenting on popular film. Avant-garde filmmakers have frequently incorporated clips, characters, and other copyrighted elements of Hollywood films. In the 1930s, Joseph Cornell pointed the way for the avant-garde with his film Rose Hobart (1936), made almost entirely by cutting and splicing clips from Universal Pictures's East of Borneo (1931). In the 1950s, "destruction artist" Raphael Monta[#xF1]ez Ortiz used a tomahawk to chop up newsreel footage of an Anthony Mann western before randomly splicing the pieces back together. And in the 1960s and [*55] 1970s, Bruce Conner, a San Francisco artist known for his multimedia assemblages, made over a dozen "found footage" films using existing film material, sometimes with pop music soundtracks. These are just a few representative works of American avant-garde film; many more films used copyrighted material without permission. FIGURE 1 Throughout the 1960s and 1970s, American avant-garde films drew larger audiences and gained the attention of the mainstream press. Avant-garde films were screened at theaters, on college campuses, at museums, and at festivals around the world. Hollywood studios and other copyright holders, however, generally left the avant-garde alone. At the same time that the studios aggressively expanded character copyright protection to stop television producers from using studio-owned characters, n7 Andy Warhol re-imagined fictional characters to make Tarzan and Jane Regained . . . Sort of and Batman Dracula (both 1964). And while Time-Life was carefully guarding the Zapruder film, n8 Bruce Conner Page 4 25 Law & Literature 50, *55 traveled the country showing versions of his film Report (1963-1967), which explored the Kennedy assassination by remixing newsreel clips, advertisements, and television commentary (though not the Zapruder footage itself). Without specific case law, an unspoken fair use code structured avant-garde film and the avant-garde community. Filmmakers enjoyed almost complete freedom from claims of copyright infringement as long as their work circulated only among the "underground" community. Even when their work reached more formal venues, filmmakers could remain confident that studios would not bother them. But avant-garde filmmakers were neither ignorant of copyright law nor completely free from the copyright permission system. They carefully guarded their own copyrights and, even though Hollywood stayed uninvolved, used music cautiously. Animator Harry Smith and painter-turned-filmmaker Dov Lederberg experimented with Beatles scores on their underground films. But filmmakers understood that as soon as their work reached international festivals or was shown on television, they needed to secure music rights. When Christine Choy of the Third World Newsreel collective sold the television rights to her film about women in New York's Chinatown, From Spike to Spindles (1974), she did not realize that she could sell the exclusive television rights only once. But she knew to contact Bob Marley to secure music rights for the film (he generously granted the rights to "Get Up, Stand Up" for $ 25). n9 [*56] FIGURE 2 When filmmaker Kenneth Anger released his avant-garde classic Scorpio Rising in 1964 (Fig. 2), he freely used old film clips, advertisements, and cartoons. Some viewers were shocked by the sexual situations depicted in the film, and it faced obscenity charges in California. Yet many filmmakers were less surprised by its sexual content than by Anger's flagrant use of popular music to create counterpoint and commentary: the 30-minute film used a wall-to-wall string of hits by Ricky Nelson, Elvis Presley, Ray Charles, and other popular musicians. Even in the absence of case law, filmmakers and audiences understood the code: you could not use popular music--certainly not entire songs--if you intended to show your film at prominent venues. The gatekeepers in this community were film festival programmers, and they helped to enforce the rule. What the avant-garde community did not know was that Anger had actually paid to secure permission for every song on the soundtrack. As Anger later explained to interviewer Scott MacDonald, "Since I intended to submit Scorpio Rising to film festivals and to show it around, I decided I needed to get the rights." The total licensing fee of $ 8,000 was an enormous expense for an avant-garde filmmaker at the time; it doubled Anger's budget and it was more than the total budget of all but a few avant-garde films. It is easy to see, then, why filmmakers assumed that Anger had not licensed the music. n10 The faulty story of Anger's bravado circulated widely, and it encouraged avant-garde filmmakers to use music more freely and creatively. [*57] Some, like Christine Choy, remained cautious, but many more thought Anger had shattered the fair use barrier. One member of the audience was particularly struck by Anger's soundtrack: Martin Scorsese, who was then a film student at New York University. Scorpio Rising, he explained, had been banned, but the shocking thing about it wasn't the Hell's Angels stuff, it was the use of music. This was music I knew, and we had always been told by our professors at NYU that we couldn't use it in student films because of copyright. Now here was Kenneth Anger's film in and out of the courts on obscenity charges, but no one seemed to be complaining that he'd used all those incredible tracks of Elvis Presley, Ricky Nelson and the Rebels. That gave me the idea to use whatever music I really needed. n11 Scorsese's reminiscence points to a number of ways that copyright and fair use functioned in the intertwined worlds of avant-garde, student, and amateur film. Scorsese's professors, the gatekeepers in his community, had set the fair use parameters for student projects. But in this instance, Scorsese learned a lesson from observing another film. It happened to be an erroneous lesson, based on the assumption that Anger had not cleared the rights to his soundtrack. But even this lesson, based on too little information, spurred Scorsese to use unlicensed rock music in his student films. And his student experimentation paved the way for his breakthrough use of licensed music in early feature films like Mean Streets (1973) and Alice Doesn't Live Here Anymore (1974). n12 In this information economy, the actions of gatekeepers, the spread of rumors, and the activity (or inactivity) of copyright holders created an ad hoc system of fair Page 5 25 Law & Literature 50, *57 use. In such a system, misinformation can be as powerful as accurate information. TODD HAYNES'S SUPERSTAR: NEW MYTHS FOR NEW TIMES Inspired by Joseph Cornell, Bruce Conner, Andy Warhol, and of course Kenneth Anger, video artists have created new kinds of remixed work using copyrighted material. Like the avant-garde filmmakers of the 1960s, Hollywood has generally left video artists alone, allowing their work to circulate in galleries and museums free from any fear of copyright [*58] infringement. Since the mid-1960s, pioneering video artist Nam June Paik has made many works using copyrighted images. In 1976, video artist Dara Birnbaum reassembled clips from the television show Wonder Woman (1975) to create a feminist critique called Technology/Transformation (1976). In a particularly daring example of fair use, artist Douglas Gordon's 24 Hour Psycho (1993) slowed down the running time of Alfred Hitchcock's Psycho (1960) to twenty-four hours. Gordon used Hitchcock's entire film, yet the change in running time dramatically transforms the experience of watching the movie. The fast-cut shower sequence, for example, morphs into a meditative and disjointed experience in the video work. FIGURE 3 Amidst all of the creative uses of copyrighted material reused in video art, there is one pivotal example of a piece of experimental video that was suppressed by copyright holders: Todd Haynes's 1987 Superstar: The Karen Carpenter Story. In the video, Haynes used Barbie dolls to tell the life story of popular singer Karen Carpenter, who had died a few years earlier from complications of an eating disorder and abuse of medication (Fig. 3). Superstar also used several complete Carpenters songs as well as substantial segments of songs by Elton John, Gilbert O'Sullivan, and the Carpenters. Soon after the film's release, toymaker Mattel sent Haynes information about its Barbie patents and trademarks, but there is no evidence that [*59] Mattel ever sent a formal cease-and-desist letter or brought any legal action. Haynes and his producer knew that the music copyrights would be stickier. They worried about the legal liability of using the songs on their soundtrack, and they initially attempted to secure permission for the use of the Carpenters' music. When permission was refused, they discussed fair use with several lawyers. None thought that the use of entire songs qualified as fair use. n13 But myth outweighed legal advice. As Haynes tells the story, he decided ultimately that he was making a film for a community in which permission was not necessary. Significantly, he learned his fair use lessons from Kenneth Anger. "It was still in the era," Haynes told an interviewer, "when there was a kind of underground cinema that famously ignored issues of rights and stuff like that. I think Kenneth Anger was still working out the rights issues on many of his films--Scorpio Rising--for years after he made it." n14 The Scorpio Rising myth was still evolving. In Haynes's version, Anger had used copyrighted material first and asked questions later. But significantly, more than twenty years after Scorpio Rising was first shown, its myth still held sway over perceptions of fair use among avant-garde filmmakers. Superstar, however, marked a turning point. Haynes eventually released the film as an unauthorized biopic. Richard Carpenter allowed the film to be shown at festivals for several years, and he may very well have continued to allow Haynes to screen it for a small underground community. After the video began to achieve cult status, however, Richard Carpenter and the Carpenters' music label, A&M, sent cease-and-desist letters to Haynes, demanding that he curtail distribution of the film. Rather than go through an expensive trial, Haynes agreed. By that point, however, the film had a growing reputation, and attempts to suppress it only made it more desirable and more popular as a bootleg. As censorship so often does, Richard Carpenter drew attention to the thing he wanted to conceal. n15 In the years after its release, Superstar dislodged Scorpio Rising as the cardinal example of avant-garde fair use, replacing a liberating story with a cautionary tale. The story circulated widely and portended the closing down of a previously unfettered fair use environment. Filmmakers became more cautious about their use of music and other copyrighted material. Accounts of avant-garde video and the art world of the time regularly cite Superstar as emblematic of the narrowing of fair use. And like the lessons [*60] learned from Kenneth Anger's experience, the fair use chapter of Haynes's career continues to be exaggerated and misreported. Magazines and newspapers regularly refer to "Haynes's lawsuit" despite his careful avoidance of one, and critics often blame Mattel for the suppression of the film Page 6 25 Law & Literature 50, *60 rather than Richard Carpenter and A&M. In No Logo, her widely read critique of corporate branding in the 1990s journalist Naomi Klein cites Mattel's legal action against Superstar as a classic example of growing corporate censorship. And in interviews, Haynes has confirmed that people often think that Mattel and not A&M placed legal pressure on him. Like Klein, media scholar Kembrew McLeod highlights Superstar's legal troubles with both Mattel and A&M as typical of works whose suppression has chilled cultural production and exemplified the growing privatization of culture. Perhaps most tellingly, Superstar served as the centerpiece of Brooklyn-based Stay Free! magazine's gallery exhibit, "Illegal Art," which celebrated works that had been silenced by intellectual property law. The curator of "Illegal Art" prefaced the show by saying, "If the current copyright laws had been in effect back in the day, whole genres such as collage, hip hop, and Pop Art might never have existed." She might also have added avant-garde film and video. But it was not new statutes or case law that had altered avant-garde fair use; it was the myths. n16 Klein, McLeod, and the "Illegal Art" show all chronicle the very real rise of a permission culture in the 1990s. n17 Aside from Superstar, however, it was not a permission culture that directly impinged on avant-garde film and video makers. (Copyright holders only seem to have discovered avant-garde film after the introduction of online video-sharing sites like YouTube in 2004 and 2005.) If Superstar was an anomaly, we have to ask why avant-garde filmmakers looked to that film's legal troubles as justification for engaging in self-censorship. After all, we can just as easily imagine Superstar serving the opposite function: it could have been seen as the exception that proves the rule. As much as the attention focused on Superstar revealed the potential for conflict over intellectual property, it also highlighted the unusualness of Haynes's situation. In the 1980s, large media companies were not particularly interested in blocking their work from being used in experimental or underground video productions. Hence, it is curious that Haynes's experience became emblematic when it was in fact an outlier. n18 [*61] MYTH MAKING How might we characterize the authoritative examples set by Scorpio Rising and Superstar? One answer is that such examples function as myths--as narratives that "transform history into nature," in the words of French critic Roland Barthes. It is the work of modern myths, Barthes said, to mask contentious ideological struggles with stories and images that seem inescapable, naturalizing ends that would have seemed tendentious or arbitrary without myth's intervention. n19 When we confront myths, we accept their finality, even when we would question their complex assumptions in any other form. Although it is difficult to say exactly why these two films became myths when they did, we can at least begin by observing that the stories of Scorpio Rising's and Superstar's encounters with fair use crystallized ideological messages at important junctures in the history of the avant-garde. In its own way, each story staged the conflict between artist and society as it was being renegotiated at a particular historical moment. With several decades between them, the two films bookended the most prolific and popular period of avant-garde filmmaking in America. And at these pivotal moments, each myth helped usher in new ideologies and artistic strategies. In the story of Kenneth Anger's appropriation of popular music, filmmakers like Martin Scorsese were quick to notice his break with tradition. The very presence of popular music on an experimental film soundtrack opened up new possibilities for Scorcese and other filmmakers. It was a period, the mid-1960s, when the critique of popular culture was itself becoming mainstream, and filmmakers needed to quote from the culture that they were commenting on. They did not ask permission from copyright holders. Instead, they found the permission they sought in the faulty story of Kenneth Anger's musical appropriation. The circulation of that uncontested story seemed to prove something the filmmaking community was already primed to believe: that copyright holders were not as likely to complain about the use of music as filmmakers had previously thought. The story rose to the level of myth, authorized both from above (by media companies who did not challenge filmmakers' quotation of their content) and from below (by the filmmakers who began to use copyrighted work more liberally). Superstar appeared at another turning point in the history of avant-garde film. By the 1980s, experimental filmmaking was entering its own [*62] institutional period. Critic Fred Camper most clearly bemoaned the situation in Page 7 25 Law & Literature 50, *62 his essay on "The End of the Avant-Garde." Experimental filmmakers, he complained, had lost their critical distance as they took jobs at universities and showed their work in museums. n20 When he made Superstar, Haynes was himself still a graduate student at Bard College, where he studied with the now-tenured radicals who had once been members of the 1960s avant-garde. The overblown story of Haynes's encounter with copyright law appealed to filmmakers, I suggest, because it re-radicalized them, restoring the patina of outsiderness to a community that seemed to have traded its countercultural bona fides for institutional power, recognition, and stability. Copyright law emerged (desirably, in this instance) as the last vestige of censorship, conferring on those it would censor a transgressiveness they were in danger of losing. It helped that the story was corroborated by the broader narrative, chronicled by Klein and McLeod, of copyright holders' diminishing tolerance for quotation of their work. n21 The myths surrounding Scorpio Rising and Superstar marked major shifts in artistic production, as well as attitudes toward fair use. And yet these shifts happened independently of case law and changing statutes. Throughout this period, between the mid-1960s and the mid-1990s, the avant-garde encountered no directly relevant case law and few fair use disputes between filmmakers and copyright holders. The same period also saw fair use codified in the Copyright Act and major fair use cases decided by the Supreme Court. Avant-garde filmmakers, however, told stories. Their stories mirrored the aesthetic and ideological tensions they encountered, and at times they may have reflected widespread attitudes toward fair use as well. But this was regulation from below, as indeed is most fair use regulation. FURTHER RESEARCH American avant-garde film and video makers form a distinct community with its own particular history. But it can help us understand the functions of fair use in other communities as well. For avant-garde media artists, fair use norms did not evolve systematically or linearly. They were not the product of negotiations with rights holders or responses to the shifts in fair use law. Norms were spread orally through stories, and that should cause us to rethink the methodologies we use for researching and understanding [*63] fair use. Perhaps the best methods are not legal or economic. Fair use is largely a narrative system, closer to folklore than to jurisprudence. Narrative theory and ethnography may offer the best methodologies to uncover the workings of fair use. If we want to understand how fair use works in the world, not merely how it looks in theory, we need studies from embedded researchers. We need participant accounts. We need oral histories and surveys. We need linguistic and narrative analyses. Most of all, we need to turn things upside down and see the vernacular account of fair use as the primary subject of study and the legal definition of fair use as only one of its many contributing factors. Legal Topics: For related research and practice materials, see the following legal topics: Communications LawRelated Legal IssuesCopyrightCopyright LawSubject MatterAudiovisual Works & Motion PicturesGeneral OverviewCopyright LawSubject MatterLiterary WorksScope of Protection FOOTNOTES: n1 For some examples of the influence of gatekeepers on fair use, see Patricia Aufderheide & Peter Jaszi, Untold Stories: Creative Consequences of the Rights Clearance Culture for Documentary Filmmakers (Washington DC: Center for Social Media, 2004), at http://www.centerforsocialmedia.org/fair-use/best-practices/documentary/untold-stories-creative-consequences-rights-clearance-culture (accessed December 2012); Fred von Lohmann, "Fair Use as Innovation Policy," 23 Berkeley Technology Law Journal 829 (2008); and Report, International Communication Assn., Clipping Our Own Wings Copyright and Creativity in Communication Research (March 2010), at http://www.centerforsocialmedia.org/sites/default/files/documents/pages/ICA_-_Clipping.pdf (accessed December 2012). Page 8 25 Law & Literature 50, *63 n2 Mark F. Schultz, "Fear and Norms and Rock & Roll: What Jambands Can Teach Us about Persuading People to Obey Copyright Law," 21 Berkeley Technology Law Journal 651 (2006); Dotan Oliar & Christopher Sprigman, "There's No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy," 94 Virginia Law Review 1787 (2008). On law and norms more generally, see Eric Posner, Law and Social Norms (Cambridge MA: Harvard University Press, 2000). n3 Robert C. Ellickson, Order Without Law: How Neighbors Settle Disputes (Cambridge MA: Harvard University Press, 1991). n4 Garret the Copyright Ferret made his debut in the comic book "Copyright Crusader to the Rescue," a supplement to Weekly Reader 4 (1995); "L.A. Boy Scouts Get Award Patch for 'Respecting Copyrights,'" Fox News (Oct. 23, 2006), at http://www.foxnews.com/story/0,2933,223699,00.html (accessed December 2012); the Electronic Frontier Foundation's education site can be found at www.teachingcopyright.org. See also Tarelton Gillespie, "Characterizing Copyright in the Classroom: The Cultural Work of Anti-Piracy Campaigns," 2.3 Communication, Culture, & Critique 247 (September 2009). n5 Joe Karganis, ed., Media Piracy in Emerging Economies (New York: Social Science Research Council, 2011), 33. n6 Eric Faden, "A Fair(y) Use Tale" (2007), at http://cyberlaw.stanford.edu/blog/2007/03/fairy-use-tale (accessed December 2012). n7 See Warner Bros. Pictures Inc. v. CBS, Inc., 102 F.Supp. 141 (S.D.Cal. 1951); Warner Bros. Pictures Inc. et al. v. Columbia Broadcasting System, 216 F.2d 945 (9th Cir. 1954), cert. denied, 348 U.S. 971 (1955). n8 Time Inc. v. Bernard Geis Assocs., 293 F.Supp. 130 (S.D.N.Y. 1968). n9 Scott MacDonald, A Critical Cinema 3: Interviews with Independent Filmmakers (Berkeley: University of California Press, 1998), 202. Page 9 25 Law & Literature 50, *63 n10 Id. at 41. n11 David Thompson & Ian Christie, eds., Scorsese on Scorsese, rev. ed. (New York: Faber and Faber, 2003), 21. n12 Scorcese's early feature films did not entirely escape copyright controversy. Composer Phil Spector briefly considered seeking an injunction against the film Mean Streets, because the Ronettes' recording of his song "Be My Baby" appeared on the soundtrack, although it isn't clear that Spector's permission was necessary for the licensing of the recording. John Anderson, "In Documentary, Wall of Sound Meets Wall of Law," New York Times (June 25, 2010), AR12. n13 Scott MacDonald, "From Underground to Multiplex: An Interview with Todd Haynes," 62.3 Film Quarterly 57 (2009). n14 Andres Chase, "Mildred Pierce: Todd Haynes on his five-part HBO miniseries," Interview, PRX Radio (Mar. 25, 2011), at http://www.prx.org/pieces/60842-mildred-pierce-todd-haynes-on-his-five-part-hbo (accessed December 2012). n15 See Lucas Hilderbrand, Inherent Vice (Durham NC: Duke University Press, 2009), ch. 4. n16 Naomi Klein, No Logo: No Space, No Choice, No Jobs (New York: Picador, 2009), 181; Chase, supra note 14; Kembrew McLeod, Freedom of Expression (R): Overzealous Copyright Bozos and Other Enemies of Creativity (New York: Doubleday, 2005), 144; Derek Slater, review of Carrie McLaren, curator, "Illegal Art: Freedom of Expression in the Corporate Age," at http://creativecommons.org/weblog/entry/7030 (accessed December 2012). n17 See Patricia Aufderheide & Peter Jaszi, Reclaiming Fair Use: How to Put Balance Back in Copyright (Chicago: University of Chicago Press, 2011). n18 The Superstar incident is also a case in which copyright was used to manage personal reputations rather than to prevent others from unfairly profiting from the use of original expression. We do not know exactly why Richard Carpenter and A&M chose to suppress the film, Page 10 25 Law & Literature 50, *63 but it is surely significant that Superstar dramatized sensitive private debates between Richard and Karen Carpenter. Played by Barbie and Ken dolls, the characters in the film enact confrontations about Richard's sexuality, Karen's illness, and the siblings' artistic differences. The film also intercuts scenes featuring A&M owner Herb Alpert with Holocaust footage (comparisons to Hitler tend to provoke a response). Finally, although A&M records became involved, the dispute was largely between two artists, Richard Carpenter and Todd Haynes. n19 Roland Barthes, Mythologies, trans. Annette Lavers (New York: Hill and Wang, 1972), 129, 116. n20 Fred Camper, "The End of Avant-Garde Film," 16/17/18 Millennium Film Journal 69 (1986-87). n21 At the same time that the North American avant-garde was redefining its outsiderness in relation to copyright law, iconic avant-garde filmmaker Jean-Luc Godard was beginning to use the same strategy in Europe. See Colin MacCabe, Godard: A Portrait of the Artist at 70 (London: Bloomsbury, 2003), 301-302.