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Estate of William Faulkner sues for damages over 9 words

Lighting strikes twice in this case. Not only did a court get a fair use decision correct, but when you read the details, you’ll find yourself siding with a major motion picture company. From the Hollywood Reporter:

A federal judge in Mississippi declared victory on Thursday for Sony Pictures in a lawsuit brought by the owners of the rights to the literary works of the late William Faulkner.

The lawsuit contended that the film distributor violated Faulkner’s copyright and the Lanham Act by allowing a character in Woody Allen’s Midnight in Paris to quote a passage from Faulkner’s Requiem for a Nun.

Sony argued that the use was de minimis and a “fair use.”

[…]

Midnight in Paris features a protagonist played by Owen Wilson who travels to Paris and finds himself spending time with literary greats including F. Scott Fitzgerald, Ernest Hemingway and Gertrude Stein.

In the film, Wilson describes his fantastic experiences. He says, “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.”

In Requiem for a Nun, Faulkner wrote, “The past is never dead. It’s not even past.”

[…]

In terms of the purpose and character of the use, the judge notes “the copyrighted work is a serious piece of literature lifted for use in a speaking part in a movie comedy, as opposed to a printed portion of a novel printed in a newspaper, or a song’s melody sampled in another song. This transmogrification in medium tips this factor in favor of transformative, and thus, fair use.”

As for the substantiality of the portion used in relation to the copyrighted work, the Faulkner literary estate attempted to argue that the “Quote describes the essence of Requiem,” and as such deserved some extra credit for its qualitative importance.

But the judge responds, “Qualitative importance to society of a nine-word quote is not the same as qualitative importance to the originating work as a whole. Moreover, it should go without saying that the quote at issue is of miniscule quantitative importance to the work as a whole. Thus, the court considers both the qualitative and quantitative analyses to tip in favor of fair use.”

As a lay person, what seems particularly egregious about this case is that Woody Allen, the film’s writer and director, actually “cited” Faulkner, crediting him with the words. Further, the quote is actually a paraphrase.

What’s especially baffling is what the Faulkner estate hoped to accomplish in such a suit. Given how frivolous it was, it doesn’t exactly make them look particularly good. As for whether or not the use of the quote in the movie hurt their investment, I think the judge got it right:

Judge Mills is also doubtful that the market for Faulkner’s work is going to be harmed by Midnight in Paris, and in fact theorizes that is more likely “the film indeed helped the plaintiff and the market value of Requiem if it had any effect at all.”

Indeed.

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About Matt Bernius
Matthew is a PhD student in Cultural Anthropology at Cornell University, researching the intersection of technology and culture. Prior to Cornell, he earned a Masters in the Social Sciences from the University of Chicago and was a visiting professor at the Rochester Institute of Technology. Matt started his career at Eastman Kodak, spending eight years in a variety of web development, community and content strategy roles. In his spare time (off OTB) Matt slogs (slow-blogs) on the future of reading/media, studies martial arts and self defense, and volunteers, along with his wife, at the Rochester Animal Shelter. Follow him on twitter @mattbernius.

Comments

  1. John Peabody says:

    I’d write something, but the words would probably paraphrase something in a Tom Clancy novel (still quite under copyright).

    Like or Dislike: Thumb up 1 Thumb down 0

  2. CSK says:

    The late Robert B. Parker used to quote Faulkner–and word-for-word–in some of his own Spenser novels, and never ran into a problem. Maybe those in charge of Faulkner’s estate never knew about it.

    Like or Dislike: Thumb up 0 Thumb down 0

  3. Rafer Janders says:

    Copyright is never dead. It’s not even past.

    Like or Dislike: Thumb up 6 Thumb down 0

  4. PD Shaw says:

    Immature poets imitate; mature poets steal. — T.S. Eliot

    Like or Dislike: Thumb up 4 Thumb down 0

  5. Pinky says:

    It’s actually a clever strategy on the part of the Faulkner estate, banking that a judge wouldn’t be willing to sit down and watch any post-Annie Hall Woody Allen movie in order to make a fair ruling. I’d rather review the evidence for the Tupelo Face-eater murder trial than watch most of them.

    Like or Dislike: Thumb up 4 Thumb down 1

  6. Matt Bernius says:

    @PD Shaw:
    Apparently it was Elliot (or Wilde) who wrote that, but one Philip Massanger:

    Immature poets imitate; mature poets steal; bad poets deface what they take, and good poets make it into something better, or at least something different. The good poet welds his theft into a whole of feeling which is unique, utterly different than that from which it is torn; the bad poet throws it into something which has no cohesion. A good poet will usually borrow from authors remote in time, or alien in language, or diverse in interest.

    Source: http://thelivingnotebook.com/2012/10/16/2379/

    Elliot apparently wrote an essay on Massagner and that’s where the confusion took place. It’s like how one of the famous sayings of Max Weber was actually created by the anthropologist Clifford Geertz:

    Man is an animal suspended in webs of significance he himself has spun.

    Like or Dislike: Thumb up 2 Thumb down 0

  7. Matt Bernius says:

    @Pinky:
    Aw come on… At least draw the line a mid-ninety’s Woody Allen (Manhattan Murder Mystery). And if you haven’t seen “The Sweet and Low Down” (and you like gypsy jazz) you’re missing a wonderful comedy.

    But beyond that, while people can bitch about late Allen (or his personal issues), the fact is it’s hard to find such a prolific filmmaker/writer. Just look at his output:
    http://www.imdb.com/name/nm0000095/

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  8. PD Shaw says:

    @Matt Bernius: Hah, I think my quote on artistic theft is even more poignant now that I know it was borrowed. Very meta.

    Like or Dislike: Thumb up 1 Thumb down 0

  9. Matt Bernius says:

    @PD Shaw:
    I somehow thought you’d appreciate it.

    There’s another quote floating around about how a real artist “steals with brilliance.” Still trying to track down who that came from.

    Thank you, btw, for giving me the nudge to track down the complete Messanger quote which is quite wonderful and well worth thinking about.

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  10. ernieyeball says:

    So when I quote paraphrase polish Woody’s line from Annie Hall and exclaim ejaculate “Masterbation is sex with someone I love.”
    I don’t have to worry about the process server pounding beating on my door.

    (My thesaurus is a user-friendly handy tool!)

    Like or Dislike: Thumb up 0 Thumb down 0

  11. JWH says:

    Indeed.

    I wrote the word “indeed” on the back of a napkin the other night. Matt, I’m afraid you’ve violated copyright law and the Lanham act. You will hear from my attorney.

    Like or Dislike: Thumb up 1 Thumb down 0

  12. Pinky says:

    @Matt Bernius: Horses are prolific, but I don’t want to step in their output.

    Like or Dislike: Thumb up 1 Thumb down 0

  13. Matt Bernius says:

    @Pinky:
    Touche. (And thanks for that particular adage!)

    Though I can think of a lot of other “prolific” folks in the entertainment industry who I’d stage an intervention with well before Allen.

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  14. @JWH: The folks at Stargate SG-1 might have claims against the both of you!

    Like or Dislike: Thumb up 0 Thumb down 0

  15. JWH says:

    @Timothy Watson: And the folks at WWE might have claims against both of us!

    Like or Dislike: Thumb up 0 Thumb down 0

  16. sam says:

    Probably employed the law firm of Snopes, Snopes, Snopes, and McCormick.

    Like or Dislike: Thumb up 0 Thumb down 0