Faulkner Estate Can't Sue Sony Because Owen Wilson Misquotes Nine Word Faulkner Quote In Movie

from the fair-use-lives dept

Last year, we wrote about one of the more ridiculous copyright claims we'd seen to date (which is saying quite a lot), in which the estate of author William Faulkner sued Sony Pictures over the Woody Allen movie Midnight in Paris. The issue? Owen Wilson's character, at one point, misquotes (with credit) a Faulkner quote. Here's how the estate itself described it in the lawsuit:

In describing his experiences, Pender speaks the following lines (the "Infringing Quote"): "The past is not dead! Actually, it's not even past. You know who said that? Faulkner. And he was right. And I met him, too. I ran into him at a dinner party."

The Infringing Quote is taken from a passage in the William Faulkner book "Requiem for a Nun" ("the Book"), where it reads: "The past is never dead. It's not even past." ("the Original Quote").

Yes, they sued, and claimed that having that quote in the movie infringed on Faulkner's copyright. Thankfully, the court wasted little time disabusing the estate of its rather laughable view of copyright law, doing a fair use analysis, and making it clear that this use qualifies as fair use. At points, the judge is clearly flabbergasted that the Faulkner estate even brought such a ridiculous lawsuit:

The court is highly doubtful that any relevant markets have been harmed by the use in Midnight. How Hollywood's flattering and artful use of literary allusion is a point of litigation, not celebration, is beyond this court's comprehension. The court, in its appreciation for both William Faulkner as well as the homage paid him in Woody Allen's film, is more likely to suppose that the film indeed helped the plaintiff and the market value of Requiem if it had any effect at all.

Similarly, the court found it to be obviously transformative:

These factors coupled with the miniscule amount borrowed tip the scales in such heavy favor of transformative use that it diminishes the significance of considerations such as commercial use that would tip to the detriment of fair use. It is difficult to fathom that Sony somehow sought some substantial commercial benefit by infringing on copyrighted material for no more than eight seconds in a ninety minute film. Likewise, it is evident that this eight second clip serves as a thematic catharsis or apex in plot to neither Requiem nor Midnight.

Unfortunately, there is one problematic aspect to the ruling. Sony asked for the case to be dismissed both because of fair use and because of de minimis use -- which is a separate legal doctrine, which suggests tiny snippets can be used without permission, having nothing to do with fair use. This has some importance, because of the (incorrect, in my opinion) argument made by some courts, that fair use is merely "a defense" to infringement, rather than a right. This makes little sense if you read the actual statute but it is how some courts have interpreted fair use.

Unfortunately, the court refuses to do an analysis on de minimis use separate from fair use -- suggesting that de minimis use only counts as a part of fair use. This is not how it's supposed to be. De minimis and fair use are two separate issues, but the court treats de minimis as a part of the fair use analysis:

Both parties have posited non-circuit authority for the doctrine of de minimis non curat lex and its applicability to copyright infringement. The Supreme Court states that “the venerable maxim de minimis non curat lex (“the law cares not for trifles”) is part of the established background of legal principles against which all enactments are adopted, and which all enactments (absent contrary indication) are deemed to accept.” ....

The parties agree that the doctrine is part of the initial inquiry of whether or not the use is infringement in the first instance, as opposed to the fair use inquiry, which is an affirmative defense. The Fifth Circuit recognizes the de minimis doctrine in the context of infringement cases, but it has not specifically enunciated its proper place in the infringement analysis....

To conclude this preliminary discussion, the court considers both the substantial similarity and de minimis analyses in this case to be fundamentally related, and wholly encompassed within the fair use affirmative defense. Therefore, the court will utilize the fair use factors in making a determination on the de minimis and substantial similarity issues. Moreover, this circuit's precedent addressing the use of a de minimis analysis in copyright cases is largely undeveloped, and the court is reluctant to address it, except within the context of Sony's affirmative defense, fair use.

I can understand why the court chose to do this. Since it has no reason to make it clear that a de minimis analysis can or should be separate from a fair use analysis, it doesn't bother. It's just unfortunate, since it would be nice to have another ruling that makes it clear that de minimis use is more than just a defense, and goes well beyond the limitations of fair use.

Filed Under: copyright, de minimis, fair use, movies, owen wilson, quoting, willaim faulkner, woody allen
Companies: faulkner literary rights, sony pictures

Faulkner Estate Sues Sony Pictures Because Owen Wilson Quoted Nine Words (Incorrectly)

from the permission-culture dept

Wow. We've heard about all sorts of crazy copyright lawsuits, but every so often you get one that just makes you sit back and wonder at the amazing chutzpah it must have taken for a lawyer to actually go forward and file a case. This is one of those times. The estate of William Faulkner, Faulkner Literary Rights LLC, has sued Sony Pictures Classics and a bunch of movie distributors over the Woody Allen movie Midnight in Paris.

At one point in the movie the lead character, played by Owen Wilson, misquotes a nine-word William Faulkner quote. Quoting directly from the lawsuit:

In describing his experiences, Pender speaks the following lines (the "Infringing Quote"): "The past is not dead! Actually, it's not even past. You know who said that? Faulkner. And he was right. And I met him, too. I ran into him at a dinner party."

The Infringing Quote is taken from a passage in the William Faulkner book "Requiem for a Nun" ("the Book"), where it reads: "The past is never dead. It's not even past." ("the Original Quote").

The lawsuit points out that the book first was registered with the copyright office in 1951 and it was renewed in 1979. I don't think anyone doubts that the copyright on the book is legit -- but, seriously? He quoted nine words (really eight if you drop one for the error in the quote). This has to qualify as either de minimis use or fair use, at the very least. And, seriously, what kind of harm does the Faulkner estate really think happened here? The filing misstates the nature of copyright law, arguing that it has the exclusive right to reproduce or distribute the quote -- completely ignoring fair use or de minimis use as possibilities that push back on that "exclusive right."

Beyond that, they try an even more ridiculous argument, dropping into the Lanham Act (trademark law) claiming (ridiculously):

The use of the Infringing Quote and of William Faulkner's name in the Infringing Film is likely to cause confusion, to cause mistake, and/or to deceive the Infringing Film's viewers as to perceived affiliation, connection or association between William Faulkner and his works, on the one hand, and Sony, on the other hand.

The use of the Infringing Quote and of William Faulkner's name in the Infringing Film is likely to cause confusion, to cause mistake, and/or to deceive the Infringing Film's viewers as to the origin, sponsorship or approval of Sony's goods, services, or commercial activity by William Faulkner and/or his written works.

To which we can only think to ask... who, exactly, could possibly be confused by this? Seriously. Faulkner died in 1962. I don't think anyone thinks he's officially affiliated with the movie. Hell, even if he was alive, we're talking about eight words misquoted.

Oh, and did we mention that the Faulkner estate claims that Sony's actions here were malicious, fraudulent, deliberate and/or willful. Or, you know, perhaps it just knows that quoting 8 words from William Faulkner doesn't infringe a damn thing. Later, they argue that the use of Faulkner's name was "grossly negligent." Because, you know, mentioning actual human beings without their permission is against the law... other than the fact that it's not.

Even the awesome folks over at Courthouse News, who tend to be a "just the facts" kind of organization couldn't resist adding some commentary on this particular case:

Although Courthouse News customarily refrains from commenting upon litigation in the story in which the lawsuit is reported, and at risk of offending the shade, or estate, of Charles Dickens: This is a far, far weirder thing than Sony has ever done.

As we've described in the past, the insurance companies that back movie productions are notoriously risk averse on IP things, and they have lawyers trained in this kind of thing go through movies bit by bit to make sure every possible bit of copyright or trademark issue has clearance or they won't approve errors and omissions insurance (E&O). They take this process pretty seriously (quite often too seriously). If this bit got through that process unscathed, it seems likely that Sony (and its insurers) are quite confident that this sort of thing is completely legit.

Hopefully Sony Pictures doesn't wimp out and pay the Faulkner Literary Rights folks to go away. This is a case worth fighting, and you'd have to hope that Sony recognizes that it's quite likely to succeed in court.

Filed Under: copyright, owen wilson, quotes, trademark, william faulkner, woody allen
Companies: faulkner literary rights, sony pictures