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.