Attorney, The Creekmore Law Firm PC

Midnight in Paris is a recent film by Woody Allen and Sony Pictures featuring Owen Wilson as a likable screenwriter and would-be-novelist in search of a muse.  On a vacation to Paris, he finds just that muse—actually, many of them—when strolling the streets at midnight.  Wilson’s character is transported back in time, first to the 1920s, then the 1890s, where he socializes with the likes of F. Scott Fitzgerald, Gertrude Stein, Hemingway and others.  Escaping his fiancée and friends, Wilson’s character takes to the streets each night, mythically teleporting back to the bygone eras in which he finds new life.  During one mid-day colloquy with his fiancée’s friend, he invokes his experience with the ghosts of the past and exclaims, “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.”

Midnight in Paris

During the era to which Wilson’s character travels, William Faulkner wrote Requiem for a Nun, a part-novel part-play, set in Mississippi and centered on a nanny charged with murder and sentenced to death.  In an exchange with her attorney,  in which she tries to distance herself from her past in her plea for clemency, her attorney retorts, “The past is never dead. It’s not even past.” For Faulkner’s estate, Woody Allen’s literary allusion to the Requiemquote was provocation enough to take pen to paper again, but in the form of a lawsuit against Sony Pictures alleging copyright infringement for inclusion of the quote in the film.

Copyright law prohibits the misappropriation of another’s work—either an exact copy or a substantially identical rendition –in or as one’s own work.  Copyright law, though, excludes from liability the “fair use” of another’s work for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.  Whether the use made of a work in any particular case is a “fair use” depends upon consideration of a number of factors, including the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of the use upon the potential market for or value of the copyrighted work.

In a reflective piece of work of his own, U.S. District Judge Michael Mills sitting in Mississippi (a not-so-coincidentally-chosen venue for the suit by the Faulkner estate) evaluated each of the factors and shut the book on Faulkner’s claim.  Following his viewing of the film side-by-side with a re-read of Requiem, the Judge opened with humorous appreciation that the parties did not ask him to compare and contrast The Sound and the Fury with Sharknado.  From his screening of the two works at issue, though, the Judge found the overwhelming differences in the quotes, and particularly the media and manner of usages of both, to compel a finding in favor of fair use.  The Judge found that inclusion by reference only, rather than even a direct quote, of a small piece from a serious literary work in a speaking part in a comedic movie, as opposed to reprinting it in a similar written medium, was a de minimis, non-infringing, fair use.  While recognizing the literary significance of Faulkner’s work, the Judge also criticized the argument that the movie devalued the original work; if anything, the Judge found that recognition of it in a contemporary film may boost, rather than impair, the value of the original work.

Finally, Faulkner’s estate advanced an alternative misappropriation claim based on the film’s mere reference to Faulkner’s name and work.  In his opinion, the Judge dispensed easily with that too, finding that neither the reference to the work through the quote, nor the reference to Faulkner himself, could possibly be said to confuse an audience as to an affiliation between Faulkner and the film.  “Allusion is not synonymous with affiliation, nor with appropriation.”  The Judge also noted no precedent “suggesting that the mere use of a celebrity name in an artistic work somehow rises to the level of deception.”  

The lesson to be learned from this tale is that while enforcement of intellectual property rights is necessary to maintaining their value, sometimes it can be carried to a nonsensical extreme. Artists should be free to make normal, everyday use of, and reference to, others’ works for purposes of context and development of their own works.  In any such case, the use should be de minimis, or transform the original work into a new piece entirely, and not capitalize in any materially way on the original work’s success as the platform for the new work’s reception and success, to help stave off liability for infringement. But, as this suit demonstrates, the pen often is mightier than the sword, and if offense is taken, an author or artist may be as likely to draw up a lawsuit today as some were to draw up a sword in a bygone era.

Faulkner Literary Rights, LLC v. Sony Pictures Classics Inc., et al., Case No. 3:12cv100 (N.D. Miss July 18, 2013)

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