While the astute reader may have noticed that the company that owns William Faulkner’s literary rights sued Sony for copyright infringement based on a misquoted snippet of a sentence that appeared in Midnight In Paris, it was news to me when I stumbled across the article in the ABA Journal this morning. Given that I try and keep abreast of happenings in the world of copyright, and this should really have been BIG NEWS (in all caps, even), I was shocked that the coverage was so ho-hum, with nary a vitriolic diatribe to be found anywhere. I was even more shocked to find that plaintiff’s counsel was claiming that the alleged offending language was the most famous Faulkner quote ever, and that the American public was somehow familiar with it.
The quote itself, from the novel Requiem for a Nun (the sequel to Sanctuary, for you Yoknapatawpha County-heads out there) is fairly straightforward, and short: ”The past is never dead. It’s not even past.” The paraphrase from the movie has Owen Wilson saying: “The past is never dead. Actually, it’s not even past.” Given that Wilson is time-travelling back to 1920s Paris at the time he makes the statement, it’s more a reflection of his actual condition (i.e., the past is not past because he’s currently living in the past) than a comment on Faulkner’s line of dialogue, though it’s also obviously a play on what Faulkner wrote. As one might expect in a movie that is chock-a-block filled with fictional cameos from literary lions from the past, there is a fair amount of word play going on, the kind that Woody Allen is known for but that might equally be heard from high-spirited Harvard doctoral candidates trotting out bon mots at drunken dinner parties (though perhaps I’m romanticizing that last bit in an Andre Dubus kind of way).
Is the quote memorable? Sure, if you have a mind for that kind of thing, or if you are a literature major studying for your GREs.
Does America know Faulkner? No, not really. Teens might have to read The Sound and the Fury in 10th grade, but if that’s no longer on the standard curriculum then I think it’s safe to say your average 16-year-old is not picking up books from the classic age of American literature (e.g., 1920s – 1950s) and doing any pleasure reading between mega-sessions of Assassins Creed III or Call of Duty and the incomprehensible lure of the latest vampire-romance novel. As for adults, they aren’t exactly thronging Barnes & Noble’s classics aisle or crashing Amazon’s servers in their haste to download Faulkner’s oevre to their Kindles.
Sony’s counsel eloquently summed up the case for “fair use” in the introduction to their recent motion to dismiss:
In 2011 Sony Classics distributed the motion picture Midnight in Paris, written and directed by Woody Allen. The film’s protagonist is on vacation in Paris with his fiancée and travels back in time to spend his evenings with great artists of the early 20th Century—F. Scott Fitzgerald, Ernest Hemingway, Gertrude Stein. When he tries to explain what is happening to his incredulous fiancée, the protagonist paraphrases a nine-word quote from William Faulkner, expressly attributed to Mr. Faulkner on-screen, and to great comic effect.
Plaintiff now claims the attributed paraphrase violates its copyright in Requiem for a Nun, a relatively obscure work by William Faulkner of some 220 pages originally published in 1954. Plaintiff also claims violations of the Lanham Act (claiming that consumers will somehow believe the late Mr. Faulkner commercially sponsored the film) and of Mississippi’s common law (claiming that the use of Mr. Faulkner’s name constitutes misappropriation).
As a matter of law, the use of a nine-word quotation from a full-length novel is a de minimis use and not copyright infringement at all. Moreover, the use at issue presents a classic case of “fair use,” a critical doctrine fostering creative and artistic expression, journalism, and scholarship. Plaintiff’s extreme—and absurd—position in this case is that it is unlawful to even minimally quote Mr. Faulkner’s work without its consent. Such a holding would be contrary to the very purpose of the Copyright Act, and other laws.
This is in fact a correct statement of law – a snippet from a novel cannot be protected under the copyright laws, whether used for commercial purposes or not. The purpose of the copyright laws is not to protect short utterances, but works as a whole. If, like me, you had initially supposed that Sony misappropriated one of Faulkner’s 898 word run-on sentences that continue for three pages and leave one gasping for breath at the end, well, you would be wrong. In the case at bar, Faulkner’s image not only won’t be tarnished by his association with Midnight in Paris, but the fact that he is mentioned at all in the movie (even misquoted) can only serve to prop up his flagging reputation and perhaps reinvigorate sales of his work.
If I were a jaded practitioner of the arts, I might be predisposed to suppose that this lawsuit is about notoriety rather than a vindication of Faulkner’s artistic rights. Now that the movie is last year’s news, why not prop up the Faulkner franchise by paying the lawyers to generate some news? Of course, I could be wrong, but as the saying goes, “there ain’t no such thing as bad publicity.”
[Wait, who said that? Is that copyright infringement?]
I am a commercial litigator and intellectual property lawyer in Orange County. Although my practice encompasses a wide variety of business disputes, I have a particular fondness for, and am prone to wax philosophical on, the subjects of copyright and trademark infringement in music, literature, art, and film.