Communicating Fair Use: Norms, Myth, and the Avant-Garde

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.