Faulkner Estate Sues Sony Pictures Because Owen Wilson Quoted Nine Words (Incorrectly)

from the permission-culture dept

Wow. We've heard about all sorts of crazy copyright lawsuits, but every so often you get one that just makes you sit back and wonder at the amazing chutzpah it must have taken for a lawyer to actually go forward and file a case. This is one of those times. The estate of William Faulkner, Faulkner Literary Rights LLC, has sued Sony Pictures Classics and a bunch of movie distributors over the Woody Allen movie Midnight in Paris.

At one point in the movie the lead character, played by Owen Wilson, misquotes a nine-word William Faulkner quote. Quoting directly from 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").
The lawsuit points out that the book first was registered with the copyright office in 1951 and it was renewed in 1979. I don't think anyone doubts that the copyright on the book is legit -- but, seriously? He quoted nine words (really eight if you drop one for the error in the quote). This has to qualify as either de minimis use or fair use, at the very least. And, seriously, what kind of harm does the Faulkner estate really think happened here? The filing misstates the nature of copyright law, arguing that it has the exclusive right to reproduce or distribute the quote -- completely ignoring fair use or de minimis use as possibilities that push back on that "exclusive right."

Beyond that, they try an even more ridiculous argument, dropping into the Lanham Act (trademark law) claiming (ridiculously):
The use of the Infringing Quote and of William Faulkner's name in the Infringing Film is likely to cause confusion, to cause mistake, and/or to deceive the Infringing Film's viewers as to perceived affiliation, connection or association between William Faulkner and his works, on the one hand, and Sony, on the other hand.

The use of the Infringing Quote and of William Faulkner's name in the Infringing Film is likely to cause confusion, to cause mistake, and/or to deceive the Infringing Film's viewers as to the origin, sponsorship or approval of Sony's goods, services, or commercial activity by William Faulkner and/or his written works.
To which we can only think to ask... who, exactly, could possibly be confused by this? Seriously. Faulkner died in 1962. I don't think anyone thinks he's officially affiliated with the movie. Hell, even if he was alive, we're talking about eight words misquoted.

Oh, and did we mention that the Faulkner estate claims that Sony's actions here were malicious, fraudulent, deliberate and/or willful. Or, you know, perhaps it just knows that quoting 8 words from William Faulkner doesn't infringe a damn thing. Later, they argue that the use of Faulkner's name was "grossly negligent." Because, you know, mentioning actual human beings without their permission is against the law... other than the fact that it's not.

Even the awesome folks over at Courthouse News, who tend to be a "just the facts" kind of organization couldn't resist adding some commentary on this particular case:
Although Courthouse News customarily refrains from commenting upon litigation in the story in which the lawsuit is reported, and at risk of offending the shade, or estate, of Charles Dickens: This is a far, far weirder thing than Sony has ever done.
As we've described in the past, the insurance companies that back movie productions are notoriously risk averse on IP things, and they have lawyers trained in this kind of thing go through movies bit by bit to make sure every possible bit of copyright or trademark issue has clearance or they won't approve errors and omissions insurance (E&O). They take this process pretty seriously (quite often too seriously). If this bit got through that process unscathed, it seems likely that Sony (and its insurers) are quite confident that this sort of thing is completely legit.

Hopefully Sony Pictures doesn't wimp out and pay the Faulkner Literary Rights folks to go away. This is a case worth fighting, and you'd have to hope that Sony recognizes that it's quite likely to succeed in court.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Atkray (profile), Oct 26th, 2012 @ 9:07am

    Faulkner is not dead. He's not even past.

     

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  2.  
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    That Anonymous Coward (profile), Oct 26th, 2012 @ 9:45am

    Intellectual property destroys more intellect with visions of billions dancing in their heads.

     

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  3.  
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    Anonymous Coward, Oct 26th, 2012 @ 9:49am

    Cue OotB calling Mike a hypocrite for taking Sony's side. In 3...2... ...

     

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  4.  
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    Anonymous Coward, Oct 26th, 2012 @ 9:51am

    oh noes!

    But Mike - now you've quoted both the misquote and the quote that was originally quoting both a copyrighted movie and a copyrighted book! Now think of the lawsuit that will involve!

     

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  5.  
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    The Nuesman, Oct 26th, 2012 @ 9:54am

    Reeks of the Associated Press

    Wow.... did the intellectual property idiots at the Associated Press get fired and go to work at Faulkner

     

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  6.  
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    Anonymous Coward, Oct 26th, 2012 @ 9:55am

    It is in the nature of quotations that there be some error. To directly quote someone without error, omission, or misattribution is almost insulting.

    Also, their suit should be thrown out for using "quote" when they meant "quotation".

     

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  7.  
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    Anonymous Coward, Oct 26th, 2012 @ 9:57am

    i dont know nor do i care whether this case goes to court or not nor do i care which side wins. what i find very frustrating is that this law suit, maybe quite rightly, i dont know, is condemned as being ridiculous. tell me how many ridiculous law suits have been filed by Sony and companies just as big, simply because they have the financial muscle to do so that scares the shit out of some poor, innocent individual for doing something unintentional that isn't liked by those companies? this whole 'you did this, i dont like it so because i have more money than you, i am suing you' has gotten out of hand. what has got to happen to make companies respect each other and customers more than at the moment? a complete boycott of everything except essentials?

     

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  8.  
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    Nastybutler, Oct 26th, 2012 @ 10:01am

    I'm sure William Faulkner would be proud knowing that his decendents are doing everything in their power to make sure no one knows who he was or what he did. What a bunch of litigious, entitled brats.

     

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  9.  
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    Anonymous Coward, Oct 26th, 2012 @ 10:03am

    Reap what you sow

    This is what the movie industry wanted, right?

     

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  10.  
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    Anonymous Coward, Oct 26th, 2012 @ 10:04am

    If this is not chucked out as fair use, the lawyers will be busy looking for any phrase in any published work that can be claimed as copyright infringement.
    On second thoughts success in this case would result in the courts collapsing under the copyright load, which would either result in strict limits on copyright, or its death.

     

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  11.  
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    Anonymous Coward, Oct 26th, 2012 @ 10:08am

    Counter-claim!

    Sony needs to very, very aggressively defend this, AND counter-claim for all their costs in having to do so, as well as punitive damages.

    Please, Sony?

     

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  12.  
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    Anonymous Coward, Oct 26th, 2012 @ 10:11am

    If this suit succeeds (in court or out of it), the Star Trek franchise is in big, big trouble. Proceeds from 'Wrath of Khan' and/or 'Undiscovered Country' alone could make the descendents of Shakespeare as wealthy as Apple.

     

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  13.  
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    Anonymous Coward, Oct 26th, 2012 @ 10:12am

    Re:

    what has got to happen to make companies respect each other and customers more than at the moment?

    Raid the house of every CEO in America and take away all their copies of "Atlas Shrugged".

     

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  14. This comment has been flagged by the community. Click here to show it
     
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    out_of_the_blue, Oct 26th, 2012 @ 10:18am

    Actually, the copyright is NOT "legit", should be expired.

    "I don't think anyone doubts that the copyright on the book is legit" -- The unilateral extensions make it effectively forever, nor am I happy with it being inherited, that's just silly: you can't inherit someone's actual work, nor inherit a right to make others pay indefinitely.

    It's a nuanced, thought-ed position that ACs and pirates may not grasp.

     

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  15.  
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    Anonymous Coward, Oct 26th, 2012 @ 10:23am

    The only reason I am for the Faulkner Estate against Sony is because of all the things Sony has pulled over the last 30 years.

     

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  16.  
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    Difster (profile), Oct 26th, 2012 @ 10:24am

    Wait...

    Isn't it just as bad then for the Faulkner estate to quote the non-Faulkner parts of the movie in the lawsuit? Are they allowed to even talk about the movie dialog that is not the supposed infringing quote lest they run afoul of their own standards?

     

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  17.  
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    Anonymous Coward, Oct 26th, 2012 @ 10:25am

    Re: Actually, the copyright is NOT "legit", should be expired.

    Nobody ever grasps what you say, not because it is exceptionally profound or complex, but because you say it in a way that makes any speaker of the English language wonder if your sentences should be qualified as simple murder or as a crime against humanity.

     

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  18.  
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    Chosen Reject (profile), Oct 26th, 2012 @ 10:31am

    Re:

    Honestly, I'm surprised Shakespeare was affiliated, connected and associated with those movies. I'm really surprised he was involved with the origin or them, that he sponsored them and even approved of them. I had a higher opinion of the man. For shame.

     

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  19.  
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    Rikuo (profile), Oct 26th, 2012 @ 10:32am

    Re:

    I'd never heard of him. Instead, it was decided that in school, I study other US authors, such as Sylvia Plath, John Steinbeck and Harper Lee.

     

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  20.  
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    Rikuo (profile), Oct 26th, 2012 @ 10:34am

    Re: Wait...

    Plus One Insightful from me, for this! Normally I too would have thought of this, but for some reason, it never crossed my mind.

     

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  21.  
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    Chosen Reject (profile), Oct 26th, 2012 @ 10:35am

    Re: Actually, the copyright is NOT "legit", should be expired.

    Depends on what point of view you are arguing for, which I'll note you didn't state, but the article talking about a lawsuit implies they are referring to the law's point of view. From a legal point of view, nobody doubts that the copyright on the books is legit. Perhaps it's not, but that's going to require some one showing that Faulkner's estate didn't dot all their i's and cross all their t's.

    From what point of view are you talking about?

     

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  22.  
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    kenichi tanaka, Oct 26th, 2012 @ 10:35am

    While I can see how absurd this is, William Faulkner is a well known author and I can understand how his estate wants to ensure that his works are not being re-interpreted or re-written differently.

    I hope the Faulkner estate wins because if Hollywood is intent on making use of previously published material then they need to make sure that what they are using is being used in an appropriate manner.

    Hollywood is always throwing copyright lawsuits out there and now they are on the receiving end of such a copyright lawsuit for using works of fiction in a manner that disrespects the original work.

     

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  23.  
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    Chronno S. Trigger (profile), Oct 26th, 2012 @ 10:42am

    Re: Re: Actually, the copyright is NOT "legit", should be expired.

    I think I'm starting to understand OOTB, not because what he says is any kind of sane, but because it's not. I'm starting to think that OOTB ether has multiple personality syndrome or there are just multiple OOTBs.

     

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  24.  
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    MrWilson, Oct 26th, 2012 @ 10:44am

    Re: Re: Actually, the copyright is NOT "legit", should be expired.

    I think it's the "I can't say anything nice about a Techdirt article" point of view.

     

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  25.  
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    Anonymous Coward, Oct 26th, 2012 @ 10:49am

    Re:

    Do you really want a world where the risk in creating new works is too high for most people to contemplate doing so? All works borrow phrase from existing works, usually without the creator being aware of it.

     

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  26.  
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    sehlat (profile), Oct 26th, 2012 @ 10:49am

    Legalized Extortion

    This is nothing more than an attempt by one greedy organization (the Faulkner estate) to extort money from another (Sony) by force and fraudulent abuse of copyright which is in principle, intended (cf. J.R.R. Tolkien) to protect *living* authors.

    Since nothing has been heard lately from Mr. Faulkner, I wish a plague on both entities.

     

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  27.  
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    Gregg, Oct 26th, 2012 @ 10:53am

    F U Faulkner

     

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  28.  
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    Chris-Mouse (profile), Oct 26th, 2012 @ 10:57am

    I'm not certain Sony even wants to win this lawsuit. After all, if sony wins, they'd have to admit that it's perfectly legal for someone to quote eight or nine words from a Sony movie too.

     

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  29.  
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    John Fenderson (profile), Oct 26th, 2012 @ 11:00am

    Re:

    I hope the Faulkner estate wins because if Hollywood is intent on making use of previously published material then they need to make sure that what they are using is being used in an appropriate manner.


    No, they specifically and emphatically do not need to make sure they're using his work in "an appropriate manner". Such a requirement does not exist in law, and if it did would have widespread and alarming impacts on the ability to exercise free speech.

     

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  30.  
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    That One Guy (profile), Oct 26th, 2012 @ 11:07am

    Re: Wait...

    Good point, and it seems that would be the quickest way for Sony to get them to back off on their lawsuit, by simply pointing out that if they win, they'll have set the precedent for their own impending lawsuit for quoting the movie without permission.

     

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  31.  
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    Scott, Oct 26th, 2012 @ 11:09am

    Re:

    The funniest thing is, if they win this, and continue winning cases like this, they'll probably go after schools and libraries next, and eventually their IP will be worthless, because nobody will know who he was or what he did.

    I'd love to see copyright reverted to an earlier state. Say 10 or 20 years and not transferable (except to a widow) and non-renewable. And not attributable to corporate entities beyond limited partnerships.

     

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  32.  
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    DOlz, Oct 26th, 2012 @ 11:20am

    Re:

    I hope it goes to court and Sony (a company I have come to despise) wins big and decisively. That way the next time they pull this nonsense the defendant can use this case as precedent against them.

     

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  33.  
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    Anonymous Coward, Oct 26th, 2012 @ 11:22am

    Re:

    1. evidently, you *can't* see how absurd this is, or you wouldn't have continued with your next clause...

    2. *besides* the absolutely minimal quote (WHICH IS "WRONG", *how* can they sue over a 'wrong' quote ? ? ? the mind boggles...); *besides* the transformative use; *besides* not knowing if in context it is a satire/parody of some sort; *besides* the moral/business dilemma of X number of generations after his death his heirs *still* milking his corpse; *besides* NO ONE ON THE PLANET being 'confused', or faulkner's work being 'diluted' or 'maligned' in some fashion, WHO is 'harmed' by the NATURAL SHARING/QUOTING of OUR COLLECTIVE culture ? ? ?

    3. i will point out this oh-so-minor factoid:
    it is NOT disney who made (fill in the blank with ideas/movies stolen from OUR culture) popular and confers some sort of 'value' on it, it is SOCIETY as a whole who made it popular (for a multitude of reasons)...

    it is NOT nike who made the swooshtika popular and gives it some sort of 'value', it is SOCIETY's choices that made nike and the associated swooshtika 'popular' AND a part of our COLLECTIVE CULTURE...

    it is NOT faulkner -and DEFINITELY not his parasitic heirs- who embraced his own writings and thought so highly of his own writing that it became popular, it is US as a society who chose his writings and made them popular and they became a part of our COLLECTIVE CULTURE...

    write the greatest, most inspired, most meaningful, most beautiful novel in the world...
    now, go put it in a drawer and see how far that gets your precious creation...

    it is ONLY the SHARING and the public's subsequent caring that confers ANY 'value' on those works, PERIOD...
    WE give them value, not time-warner-disney-faulkner-etc...


    oh, and yes, to the pedant in this thread, 'quote' is quite acceptable to use as a form of 'quotation'...
    you can quotation me on that...
    hee hee hee

    art guerrilla
    aka ann archy
    eof

     

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  34.  
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    I_am_so_smrt (profile), Oct 26th, 2012 @ 11:44am

    It just proves that "facts and truth really don't have much to do with each other". D'oh!

     

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  35.  
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    Anonymous Coward, Oct 26th, 2012 @ 11:51am

    This lawsuit is pretty ridiculous to begin with. It's even more ridiculous when you realize that it's not even his real quote. It's a paraphrasing of that line.

    Copyright is about the actual expression of an idea. Not the idea itself. If you garble up the words, it's not the same manifestation.

     

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  36.  
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    thebooksluts, Oct 26th, 2012 @ 12:09pm

    Re:

    You can't just "root" for a team like they're playing baseball--we should all be rooting for the law to be fairly upheld.

     

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  37.  
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    gorehound (profile), Oct 26th, 2012 @ 1:02pm

    Let them both eat each other up for all I care.
    More MAFIAA News coming probably within moments.

     

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  38.  
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    Leroy, Oct 26th, 2012 @ 1:03pm

    Faulkner vs Sony

    In a world where copyrighted software is hacked and the public wants everything for free, we have Woody Allen wanting his movie to be as high-end as possible, maybe hoping to sell some tickets and DVDs. Then we have Congress that decided all art would be public domain after a certain period of time, thereby guaranteeing free access to all. By creating an expiration date,, however, Congresd affirmed that prior to expiration, the art must be protected. If Woody could have written something better he would have. But since he wanted this quote. what's wrong with Licensing it? Ron Howard used a short Faulkner quote to launch his new TV series on modern families.but Ron licensed it. No big deal. Stealing it would have been Avwhole 'nother thing ... Woody and Sony knew better - they just didn't give a damn.

     

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  39.  
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    Get off my cyber-lawn! (profile), Oct 26th, 2012 @ 1:23pm

    Someone's gotta pay!

    Someone quoted someone somewhere & someone else is gonna hire someone to sue someone so someone gets rich!

     

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  40.  
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    Anonymous Coward, Oct 26th, 2012 @ 1:24pm

    Re: Re:

    This is a pretty rambling, disjointed, and annoyingly mis-capitalized post which I would normally only respond to in order to lament the failure of education. However, the phrase "parasitic heirs," is so good that I think it should be applied automatically when speaking of the estate of any deceased artist.


    As I get to the bottom of this terrible post, I realized that I was the pedant in question. So allow me to be pedantic.

    Capitalize your sentences and proper names correctly. Quit randomly emphasizing words through full capitalization. If you start a list by numbering each point, don't quit when you run out of numbers that you have memorized; it wouldn't have taken you much effort to look up 4-8. One punctuation mark is sufficient to end a sentence; three implies a brain disorder. Wrapping a word in quotation marks to emphasis the word is stupid, unless you are trying to annoy Douglas Hofstadter by subverting the use/mean distinction. And lastly, though this is not an exhaustive list, "quote" as a noun is only acceptable if you're talking to a contractor.

     

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  41.  
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    Anonymous Coward, Oct 26th, 2012 @ 1:49pm

    Re: Actually, the copyright is NOT "legit", should be expired.

    What the hell kind of linguistic atrocity is "thought-ed"?? How on Earth is the brain that formulated that gem able to send an instruction to the fingers in order to type it into the keyboard?

     

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  42.  
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    Bergman (profile), Oct 26th, 2012 @ 1:56pm

    Copyright protects the expression of an idea, not the idea itself.

    By definition, a misquotation CANNOT match the expression of the idea that was protected by copyright in the first place. If it did, it would not be a misquotation!

     

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  43.  
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    kleuske (profile), Oct 26th, 2012 @ 2:00pm

    Prophetic?

    Poor man. Poor mankind. (Light in August,1932, Chapter 4)

     

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  44.  
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    John Fenderson (profile), Oct 26th, 2012 @ 2:11pm

    Re: Faulkner vs Sony

    public wants everything for free


    Misleading and untrue as a blanket statement.

    Then we have Congress that decided all art would be public domain after a certain period of time


    Congress did not decide that. It's the other way around -- congress decided to grant limited-term monopolies to art. Public communication of any sort places the communication in the public domain by definition. It took a special law to restrain that.

    If Woody could have written something better he would have.


    Since he didn't really quote Faulkner, he did write something different (better is a subjective determination), but let's pretend it's an accurate quote.

    Typically, people quote famous figures not because the phrase is so well written that they couldn't come up with something better, but because the importance of it is that the famous figure said it.

    what's wrong with Licensing it?


    Nothing, if you want to. But it shouldn't be necessary to pay money to make references to our cultural heritage. If it is, it means we have no real culture, only commerce.

    Stealing it would have been Avwhole 'nother thing


    Nothing was stolen, even ignoring the whole copyright violation is not theft argument. Faulkner was credited, nobody is claiming his words as their own.

     

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  45.  
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    Anonymous Coward, Oct 26th, 2012 @ 2:28pm

    Re: Re: Actually, the copyright is NOT "legit", should be expired.

    maybe not a brain but a computer program, and no fingers or keyboard involved.

     

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  46.  
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    Anonymous Coward, Oct 26th, 2012 @ 3:34pm

    Next thing you know, they'll be complaining that the character in the movie never really met Faulkner.

    Those motherfaulkners...

     

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  47.  
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    Beta (profile), Oct 26th, 2012 @ 4:29pm

    Re:

    They should at least get a dirty look from the judge for naming it "the Infringing Quote", and the film "the Infringing Film", when they haven't yet proved any such thing.

    This kind of language may be common practice in law, for all I know, but it's deliberately confusing at best. If I were council for the defense I'd be seriously tempted to start with "Your Honor, the defendant (hereafter to be known as "the Innocent Defendant") in this suit ("the Frivolous Lawsuit") brought by the council ("the Incompetent Lawyers") for the plaintiff ("the Feckless Parasites")...

    Yeah, I can see why I wouldn't get far as a lawyer.

     

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  48.  
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    JMT (profile), Oct 26th, 2012 @ 4:32pm

    Re:

    "I hope the Faulkner estate wins because if Hollywood is intent on making use of previously published material then they need to make sure that what they are using is being used in an appropriate manner."

    Why would you make such a ridiculous assertion without any form of explanation? How this use is inappropriate in any way whatsoever?

     

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  49.  
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    JMT (profile), Oct 26th, 2012 @ 4:40pm

    Re: Faulkner vs Sony

    "what's wrong with Licensing it?"

    Licensing is so important it needs a capital L now?

    A better question is why does Faulkner's estate, who had zero productive input into his works, deserve any money if someone quotes his work? Don't blah, blah about copyright law, tell us why they deserve an income for doing nothing. And for a bonus point, explain how that's different to your incorrect claim that "the public wants everything for free".

     

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  50.  
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    art guerrilla (profile), Oct 26th, 2012 @ 6:34pm

    Re: Re: Re:

    1. urine idjit
    B. upright writing written right is boring... i like to play with words and minds...
    IV. please tell it to john dos passos and archy...
    X. you have shown you value style over substance; thank you for outing yourself as an authoritarian...
    Z. you gotta take the 'parasitic heirs' with the whacked out ellipsis...

    totherwise, FOAD...

    art guerrilla
    aka ann archy
    art guerrilla at windstream dot net
    eof

     

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  51.  
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    btrussell (profile), Oct 27th, 2012 @ 12:48am

    Re: Someone's gotta pay!

    Being sued for not quoting. Saying he said something he did not say.

    This is very harmful to his reputation and may cause some people to avoid his new works because everyone believes movies are real.

     

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    stfueveryone, Oct 27th, 2012 @ 5:52am

    Once again they bring out the lawyers to complain about free advertising. When I see somebody drinking a Coke, I don't think "Gee, Cocacola must like that guy, because he likes Coke." that's ridiculous.

     

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    Spaceman Spiff (profile), Oct 27th, 2012 @ 8:19pm

    Right...

    Given Sony's current (mis)management, I doubt they will do the right thing, but will likely pay the Faulkner estate to make the suit go away... :-(

     

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    orbitalinsertion (profile), Oct 28th, 2012 @ 4:32am

    I'm surprised they didn't claim it was "hot news".

     

    reply to this | link to this | view in thread ]

  55.  
    identicon
    Anonymous Coward, Oct 28th, 2012 @ 10:40am

    Re: Re:

    Hee! All jokes aside, I actually get the feeling Shakespeare would have approved of Star Trek: TOS. He loved bombast and over-the-top, larger than life characters. And you can't say Shatner didn't pronounce his lines trippingly on the tongue.

    When the DS9 people inserted their guys into the fight scene in their tribbles crossover, they remarked on how theatrical the original actors' moves were and had to adjust their staging by opening up the new fighters' arm-swings, having them reel back more exaggeratedly. Shakespeare would have understood that type of acting.

     

    reply to this | link to this | view in thread ]

  56.  
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    Anonymous Coward, Oct 28th, 2012 @ 10:43am

    When does Faulkner's work go into Public Domain? Sounds like his estate is making hay while the sun shines. (Uh, oh; can I use that metaphor? That sounds like something somebody wrote in an old novel!) /s

     

    reply to this | link to this | view in thread ]

  57.  
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    Anonymous Coward, Oct 28th, 2012 @ 6:20pm

    Re: Re: Re:

    And yet, when Kirk wanted to know who started the fight, he never said, "Hey, you two guys on the end. I've never seen you before. Who the heck are you?".

     

    reply to this | link to this | view in thread ]

  58.  
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    Niall (profile), Oct 29th, 2012 @ 7:11am

    Re: Re:

    Just remember the backup copies hidden inside Bible covers and panic rooms...

     

    reply to this | link to this | view in thread ]

  59.  
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    relghuar, Oct 30th, 2012 @ 3:49am

    ...Sony recognizes that it's quite likely to succeed in court...

    Well, I'd say if they really recognize that, they'll be all the more motivated to settle things very quietly. I really can't see Sony (or any other major copyright maximalist) going to court arguing in favor of any kind of fair use....

     

    reply to this | link to this | view in thread ]


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