(Brain) Dead Intellectual Property Rights

By Jonathan Eggers

Strong box office.  A critical darling. Nominated in 2012 for the Academy Awards for Best Picture; winner of the Best Original Screenplay. By any measure, Woody Allen’s 2011 film Midnight in Paris would be considered a cinematic success.

That is, until the film found itself in the center of some legal sound and fury.

The movie transports its hero, a struggling author played with panache by Owen Wilson, to the artistic mecca that was Paris in the early 20th century.

Pablo Picasso, F. Scott Fitzgerald and Ernest Hemingway all have memorable moments in the film. And in one scene, Mr. Wilson’s character says, in true Woody Allen-neurotic style: “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 literati in the audience surely recognized the quote, and laughed. It’s a riff on a line from William. Faulkner’s “Requiem for a Nun”: “The past is never dead. It’s not even past.”

Other people who recognized the quote? Mr. Faulkner’s estate.

Faulkner Literary Rights, LLC (Faulkner LLC) has filed a copyright infringement lawsuit in federal district court against production studio Sony Pictures Classics.

Does the law protect use of quotes only ten words long? Or does it dismiss these types of actions as frivolous and use of such material as protected by fair use? Does it matter that the movie clearly attributes the quote to the original author? Or was it more damaging to have associated Faulkner with the film than not? The media didn’t say. LASIS investigates.

Faulkner LLC’s first claim, copyright infringement, argues that the Copyright Act grants Faulkner LLC the exclusive right to reproduce and distribute the original quote. While the Act certainly does this, what it does not typically do is protect words or short phrases due to their lack of creative expression. The fear is that, if the law protects such brief phrases or quotations the burden on future authors would limit the realm and foundation for subsequent expression.

Use of material that doesn’t violate a copyright is known as “fair use,” which permits limited and reasonable uses of copyright-protected work by someone other than the copyright owner.

To determine fair use, the courts analyze a four factor test.

First, a court will look at the purpose and character of the use, including whether such use is of a commercial nature. Though the film was a commercial one, the quote was a de minimis part of a freshly developed creative and expressive script. It didn’t up the commercial quotient of the movie, not event close.

Next, a court will look at the nature of the copyrighted work, in this case a work of fiction. Typically, the courts grant more leeway to copy from factual works than fictional ones. But in this case, the work of fiction was a 1950 book. The film was a 2011 film. The quote was a paraphrase of a few words. This is not the kind of pilfering that a court would find violates fair use test.

Third, a court will weigh the amount and substantiality of the copyrighted material used compared to the entire copyright work. Again, not so good for the Faulkner estate. The line was just one of many, many thousands in a 636 page novel.

And finally, a court will look at the effect of the use of the copyrighted material on the potential market, or to the value of, the entire copyrighted work. Safe to say that nobody will be less likely to purchase “Absalom, Absalom!” after seeing Mr. Allen’s film. If anything, it might have sparked some interest with modern audiences in Mr. Faulkner’s works.

Plaintiffs contend that use of the quoted material violated the Lanham Act, as it is likely to cause confusion among viewers of the film as to the origin, sponsorship, or approval of Sony’s goods, services, or commercial activity by William Faulkner and/or his written works.

While the name or likeness of a celebrity figure such as William Faulkner may legally be protected against false endorsements, Faulkner LLC’s major hurdle in this case will surely be establishing that Sony’s use of the quote created a likelihood of confusion in audiences. I saw the movie, and can attest that nobody seeing it would believe that Mr. Faulkner’s estate was endorsing the film.

New York Law School’s Professor Richard Chused, an expert on property law, copyright law and cyberlaw thinks the case is quite weak. But he generously sought to make sense of Faulkner LLC’s rationale for the suit after reading the complaint. “I don’t know exactly what plaintiff’s counsel has in mind as a theory, but I wouldn’t be surprised if he calls on some of the recent music sampling litigation. Some courts have been pretty stingy in applying fair use to sampling. Perhaps the thinking is that this literary ‘sample’ runs afoul of the music cases.”

I also spoke with New York Law School’s Professor David Johnson, a faculty member of New York Law School’s Institute for Information Law and Policy where he directs the Certificate of Mastery in Digital Law Practice Technology program.

This is a “silly suit,” he said. If the claim were taken seriously, then “a short quote, even when uttered with attribution and without any possible commercial impact on the original work, would never be protected (against a copyright infringement case) as fair use. And the mention of an author’s name, even in the context of accurate attribution and a completely different and transformed work, would never be free from a Lanham Act complaint regarding confusion as to origin or sponsorship.”

Professor Johnson was just getting started.

“The laugh line in the complaint is the assertion that Woody Allen’s character’s line suggests ‘approval of Sony’s goods …by William Faulkner and/or his written works.’ The ‘intellectual property’ rights asserted in the case are in fact (brain) dead. Actually they never even existed.

And you can quote me on that.”

I just did. And I think I’ll steal some of your wit for our headline too. Don’t sue me.

UPDATE: July 20, 2013Case dismissed.  Sharknado!


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