fter reading the book and watching the film at issue, the U.S. District Court for the Northern District of Mississippi granted Sony Picture Classics Inc.’s (“Sony”) motion to dismiss Faulkner Literary Rights, LLC’s (“Faulkner”) copyright infringement action based on a paraphrase of a nine word quote from a William Faulkner’s work in the Woody Allen film Midnight in Paris (“Midnight”). The court easily found the use of a single line literary quote as part of the film’s dialogue transformative and a fair use.
The original quote at issue, said by a character in Faulkner’s Requiem for a Nun (“Requiem”) is “The past is never dead. It’s not even past.” In Midnight, Owen Wilson’s character Gil Pender, having returned back to the present day after time traveling to 1890s and 1920s Paris, states “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.”
Faulkner alleged claims under the Copyright Act as well as the Lanham Act. Defendant Sony moved to dismiss the copyright claim based on the fair use defense and, alternatively, argued that the use of a quote was non-infringing under the de minimis doctrine (essentially a taking too small to rise to the level of infringement), a matter of first impression for this court. The court analyzed the use of the quote under the four fair use statutory factors, finding these factors adequately addressed the de minimis analysis.
Factor 1: Purpose and Character
Addressing the first factor, the court found the “speaker, time, place, and purpose of the quote” in the two works to be “diametrically dissimilar.” In the Faulkner piece, the quote is a “weighty and somber” component of a work of serious literature, while in Midnight, the quote is part of a “comedic domestic argument.” Moreover, the court observed that the reference to the “past is not dead” bears literal meaning in Midnight because of its time traveling plotline.
The court also found the change of medium from “serious piece of literature” to “use in a speaking part in a movie comedy” to be relevant. It distinguished this from the printing of part of a novel in a newspaper or the sampling of a melody in a different song and stated that the “transmogrification in medium” tips the first factor in favor of fair use. Moreover, the court called the portion of the Faulkner work borrowed so “miniscule,” that it diminishes the significance of considerations such as commercial use that would disfavor fair use.
Factor 2: Nature of the Copyrighted Work
Sony did not dispute that Requiem is entitled to copyright protection as a creative work but argued the factor was not relevant “since parodies almost invariably copy publicly known, expressive works” citing the Supreme Court Campbell decision. Faulkner argued against the Campbell reliance as limited to parody and inapplicable. The court declined to determine whether Midnight’s use of the Faulkner line a parody because it found the use in the film to be “highly transformative under the first factor, whether parody or not.”
Factor 3: Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole
Conceding that Sony had not used a large portion of Requiem from a quantitative perspective, Faulkner argued that Sony’s alleged infringement was “qualitative” as it took the essence of the work. The court refused to focus on the theme of the work and instead stated that the quote constitutes only a small portion of the expression of the idea of the “inescapability of the past” in Faulkner’s novel and was only “a fragment of the idea’s expression.” Neither was the court influenced by the quote’s subsequent fame in connection with the theme. Under both the qualitative and quantitative analysis, this factor favored fair use.
Factor 4: Effect of the Use Upon the Potential Market for or Value of the Copyrighted Work
The court’s analysis under the fourth factor weighed heavily in favor of Sony. It interpreted the inclusion of the paraphrased quote in Midnight as actually helping Faulkner and “the market value of Requiem if it had any effect at all.” The court also stated “how Hollywood’s flattering and artful use of literary allusion is a point of litigation, not celebration, is beyond this court’s comprehension.”
Noting that Faulkner had not pointed to any “compelling evidence” that the markets for Requiem had suffered substantial harm, the Court also rejected as irrelevant Faulkner’s statement that it routinely enters into licensing materials for its copyright materials (and its suggestion that other material in the film, such as music, had been licensed).
Lanham Act Claim
The court held that Faulkner had not established a claim under the Lanham Act. Faulkner argued that the film could confuse “viewers as to a perceived affiliation, connection or association between William Faulkner and his works, on the one hand, and Sony, on the other hand.” Holding that “allusion is not synonymous with affiliation, nor with appropriation,” the court stated that Faulkner had presented no precedent suggesting that the “mere use of a celebrity name in an artistic work somehow rises to the level of deception.”
The court’s decision here is a victory for Sony and for common sense. Few reasonable people would consider that a single line quote that is both reverential of its source and attributed, should constitute copyright infringement in a motion picture. In addition, the court’s statement under its Lanham claim analysis that the use of a celebrity name in an artistic work does not constitute deception will provide reassurance to a large number of creators across old and new media that make use of literary reference in an expressive work.
There is, of course, a slight note of caution in the court’s opinion. The court’s analysis could have come out differently had Midnight in Paris quoted larger portions of Requiem for a Nun or borrowed liberally from its story, or if Faulkner had been able to produce evidence that the quote had significantly damaged the market for William Faulkner’s work. However, even in the age of spreadable media and online “spoilers,” it seems unlikely that a typical literary reference would take so much of a work that it would substitute for (or significantly damage the commercial market for) the original. Of course, an instance in which a second work substantially borrows characters or plot elements from the original would be a different analysis more akin to the recent Salinger case.
As a final note, the Northern District of Mississippi declined to exercise jurisdiction over Faulkner’s state law claim of commercial misappropriation which Faulkner could still file in state court. Since the use of Faulkner’s name is in an expressive work, a film, and was not used in an advertisement, the First Amendment should rule out such a claim which in general favors expressive works over publicity rights.
Filed in: Copyright, Legal Blog
July 21, 2013