Faulkner Estate Can't Sue Sony Because Owen Wilson Misquotes Nine Word Faulkner Quote In Movie

from the fair-use-lives dept

Last year, we wrote about one of the more ridiculous copyright claims we'd seen to date (which is saying quite a lot), in which the estate of author William Faulkner sued Sony Pictures over the Woody Allen movie Midnight in Paris. The issue? Owen Wilson's character, at one point, misquotes (with credit) a Faulkner quote. Here's how the estate itself described it in the lawsuit:
In describing his experiences, Pender speaks the following lines (the "Infringing Quote"): "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 Infringing Quote is taken from a passage in the William Faulkner book "Requiem for a Nun" ("the Book"), where it reads: "The past is never dead. It's not even past." ("the Original Quote").
Yes, they sued, and claimed that having that quote in the movie infringed on Faulkner's copyright. Thankfully, the court wasted little time disabusing the estate of its rather laughable view of copyright law, doing a fair use analysis, and making it clear that this use qualifies as fair use. At points, the judge is clearly flabbergasted that the Faulkner estate even brought such a ridiculous lawsuit:
The court is highly doubtful that any relevant markets have been harmed by the use in Midnight. How Hollywood's flattering and artful use of literary allusion is a point of litigation, not celebration, is beyond this court's comprehension. The court, in its appreciation for both William Faulkner as well as the homage paid him in Woody Allen's film, is more likely to suppose that the film indeed helped the plaintiff and the market value of Requiem if it had any effect at all.
Similarly, the court found it to be obviously transformative:
These factors coupled with the miniscule amount borrowed tip the scales in such heavy favor of transformative use that it diminishes the significance of considerations such as commercial use that would tip to the detriment of fair use. It is difficult to fathom that Sony somehow sought some substantial commercial benefit by infringing on copyrighted material for no more than eight seconds in a ninety minute film. Likewise, it is evident that this eight second clip serves as a thematic catharsis or apex in plot to neither Requiem nor Midnight.
Unfortunately, there is one problematic aspect to the ruling. Sony asked for the case to be dismissed both because of fair use and because of de minimis use -- which is a separate legal doctrine, which suggests tiny snippets can be used without permission, having nothing to do with fair use. This has some importance, because of the (incorrect, in my opinion) argument made by some courts, that fair use is merely "a defense" to infringement, rather than a right. This makes little sense if you read the actual statute but it is how some courts have interpreted fair use.

Unfortunately, the court refuses to do an analysis on de minimis use separate from fair use -- suggesting that de minimis use only counts as a part of fair use. This is not how it's supposed to be. De minimis and fair use are two separate issues, but the court treats de minimis as a part of the fair use analysis:
Both parties have posited non-circuit authority for the doctrine of de minimis non curat lex and its applicability to copyright infringement. The Supreme Court states that “the venerable maxim de minimis non curat lex (“the law cares not for trifles”) is part of the established background of legal principles against which all enactments are adopted, and which all enactments (absent contrary indication) are deemed to accept.” ....

The parties agree that the doctrine is part of the initial inquiry of whether or not the use is infringement in the first instance, as opposed to the fair use inquiry, which is an affirmative defense. The Fifth Circuit recognizes the de minimis doctrine in the context of infringement cases, but it has not specifically enunciated its proper place in the infringement analysis....

To conclude this preliminary discussion, the court considers both the substantial similarity and de minimis analyses in this case to be fundamentally related, and wholly encompassed within the fair use affirmative defense. Therefore, the court will utilize the fair use factors in making a determination on the de minimis and substantial similarity issues. Moreover, this circuit's precedent addressing the use of a de minimis analysis in copyright cases is largely undeveloped, and the court is reluctant to address it, except within the context of Sony's affirmative defense, fair use.
I can understand why the court chose to do this. Since it has no reason to make it clear that a de minimis analysis can or should be separate from a fair use analysis, it doesn't bother. It's just unfortunate, since it would be nice to have another ruling that makes it clear that de minimis use is more than just a defense, and goes well beyond the limitations of fair use.


Reader Comments (rss)

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  •  
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    jupiterkansas (profile), Jul 19th, 2013 @ 8:03pm

    Yet another reason why copyright needs to expire when the creator dies, or even long before. The Faulkner estate only exists to make money from Faulkner's work, and will apparently not even common sense will stop them.

     

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      PaulT (profile), Jul 20th, 2013 @ 5:14am

      Re:

      "The Faulkner estate only exists to make money from Faulkner's work, "

      Part of me is happy to see them wasting so much of that money. Part of me just wants them to not have the ability to try...

       

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  •  
    identicon
    Anonymous Coward, Jul 20th, 2013 @ 2:08am

    The past is never dead. It's not even past.
    The past is never dead. It's not even past.

    Bring it on bitches, sue me for everything I'm not worth!

     

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    PopeRatzo (profile), Jul 20th, 2013 @ 5:08am

    Good for the goose

    You think Sony would have hesitated to sue if someone had used a similarly small item from one of their properties?

     

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    Anon, Jul 20th, 2013 @ 6:36am

    Why Not Both?

    Why can't de minimis be used both (a) on its own and (b) as a factor in fair use? Neither precludes the other.

    One argument, perfectly valid on its own, was "I used 8 seconds in a 90-minute movie. The vast majority is obviously original, it's not a collection of other people's works. Minimal.

    The other argument is - the quote is a moderately prominent part of our cultural history, it's relevant to the plot, we are not stealing the essence of the work it's from, it's the sort of thing the character would say so it fits the story, in fact if anything it aids the copyright holders by drawing more attention to their owned body of work.

    "The court is highly doubtful that any relevant markets have been harmed by the use in Midnight. How Hollywood's flattering and artful use of literary allusion is a point of litigation, not celebration, is beyond this court's comprehension. The court, in its appreciation for both William Faulkner as well as the homage paid him in Woody Allen's film, is more likely to suppose that the film indeed helped the plaintiff and the market value of Requiem if it had any effect at all. "

    Adding, "Oh, and it was less than 1/675th of the work" simply emphasizes the "fair use" part of it all.

     

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    Anonymous Coward, Jul 20th, 2013 @ 6:48am

    Sony should be sued for the claimed quote which was incorrectly quoted.


    To be or not to be,
    this is the question.
    - Shakespeare


    E=mc^3
    - Einstein


    Quote the Raven evermore
    - Edgar Allen Poe

     

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    Anonymous Coward, Jul 20th, 2013 @ 8:30am

    "This has some importance, because of the (incorrect, in my opinion) argument made by some courts, that fair use is merely "a defense" to infringement, rather than a right."

    An alleged infringer does have a legal right, that right being to defend allegations of infringement on the basis of fair use. If it was a right as you posit, the initial burden or persuasion would rest with the rights holder to prove by a preponderance of evidence that a use is not fair. This is not, however, how the law is structured. Under current law the initial burden rests with the alleged infringer.

    Merely as an aside, even the EFF concedes that it is an affirmative defense, a position for which Bill Patry advocated in Harper & Row v. Nation, and for which he took credit when it was so held in the case.

     

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      Richard (profile), Jul 20th, 2013 @ 9:17am

      Re:

      You are confused.

      Let me clear up your confusion by quoting wikipedia (which you might have consulted before postinbg your comment).

      "The frequent argument over whether fair use is a "right" or a "defense"[30] is generated by confusion over the use of the term "affirmative defense." "Affirmative defense" is simply a term of art from litigation reflecting the timing in which the defense is raised. It does not distinguish between "rights" and "defenses", and so it does not characterize the substance of the defendant's actions as "not a right but a defense"."

       

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      cpt kangarooski, Jul 21st, 2013 @ 10:51am

      Re:

      An alleged infringer does have a legal right, that right being to defend allegations of infringement on the basis of fair use. If it was a right as you posit, the initial burden or persuasion would rest with the rights holder to prove by a preponderance of evidence that a use is not fair. This is not, however, how the law is structured. Under current law the initial burden rests with the alleged infringer.

      It's treated like a defense, because the burden is best shouldered by the defendant; a plaintiff will have no interest in making a strong argument that a use is fair, and it would be a bit silly to presume all uses to be fair unless it is proven otherwise. But the language of sections 106-122 is clear: the exceptions are exceptions to the right of the copyright holder, that is, they are places where the only rights that exist are the underlying free speech rights we all have, and which the infringer exercised. They are not defenses to copyright, they are places where copyright doesn't exist.

       

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      Mike Masnick (profile), Jul 21st, 2013 @ 11:12pm

      Re:

      If it was a right as you posit, the initial burden or persuasion would rest with the rights holder to prove by a preponderance of evidence that a use is not fair. This is not, however, how the law is structured.

      The law reads: "the fair use of a copyrighted work... is not an infringement of copyright."

      Given that, it cannot logically be a defense, because the defense only comes in after it's been shown that it is an infringement. Under the way the law is written, the fair use determination SHOULD absolutely be made prior to the determination of whether or not it's infringement, because when you do it the other way, you're just saying it's a defense for WHY you infringed. But the law says it IS NOT AN INFRINGEMENT.

      So, yes, while courts have clearly held that it is a defense and not a right, based on the law, I believe they are wrong.

       

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        Some Guy, Jul 22nd, 2013 @ 4:42am

        Re: Re:

        But couldn't the same be said re murder and self-defence? If the court finds you killed someone in self-defence, then by definition no murder occurred; but self-defence is still a defence to the charge of murder.

         

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          Anonymous Coward, Jul 22nd, 2013 @ 5:25am

          Re: Re: Re:

          Oh - I see, copyright infringement is the same as murder.
          - Got it.

          Civil case is the same as felony - got it.

          Gee I have learned so much already today and it is still morning.

           

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            Anonymous Coward, Jul 22nd, 2013 @ 6:41am

            Re: Re: Re: Re:

            Hey, I was asking a question (not making a statement) using an analogy (not a comparison).

            But if the civil/criminal thing particularly bothers you, how about another analogy, this time with libel.

            Telling the truth can never be libel, as libel is by definition false; nonetheless, justification (asserting that the alleged libel is in fact a true statement) is a defence against a claim for libel.

            By analogy (sorry for the repetition, but I want to make clear that I'm not saying that libel and copyright infringement are in any way "the same"), can't fair use be a defence against a claim for copyright infringement, even though no infringement took place if the copying was fair use?

            For any lawyers out there: are fair use and justification (and self defence) examples of absolute defence ("the alleged tort or crime never actually occurred because of X"), as opposed to a partial defence ("yeah, I did inflict the tort/commit the crime, but go easy on me because of Y")?

             

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        Richard (profile), Jul 22nd, 2013 @ 7:13am

        Re: Re:

        Actually I think the dichotomy is a false one.
        Fair use is a right under the law, and it may be raised by the defence in an infringement case. Typically the plaintiff will feel that he is better off ignoring it initially rather than drawing attention to it by attempting to show that the use was not fair.

        Hence the confusion arises as a result of the tactics employed by plaintiffs. Over time this confusion has even spread to judges. However as the law was written the plaintiff does have to show that the use was not fair and should really consider fair use before initiating procedings.

        I think further that our confused coward is also mixing up the concept of a defence with the concept of a mitigation.

        A defence is a defence - it means you have not broken the law at all. The concept where "you broke the law but we'll let you off because..." is called a mitigation and it is quite different.

         

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          Some Guy, Jul 22nd, 2013 @ 7:24am

          Re: Re: Re:

          A defence is a defence - it means you have not broken the law at all. The concept where "you broke the law but we'll let you off because..." is called a mitigation and it is quite different.
          What about provocation?

           

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    Anonymous Coward, Jul 20th, 2013 @ 12:24pm

    Not only that, but copyright should not be able to transfer from an individual to a company, corporation or business unless the transfer is marked as being "sold" to that entity. This whole matter of contiuing to extend copyright and/or transfer between companies and coporations is an abuse of copyright law and should not be humored at all.

     

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