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
