By Anandashankar Mazumdar
A quotation from a William Faulkner novel as used in a 2011 Woody Allen movie constituted fair use and thus did not give rise a claim of copyright infringement, the U.S. District Court for the Northern District of Mississippi ruled July 18 (Faulkner Literary Rights, LLC v. Sony Pictures Classics Inc., N.D. Miss., No. 3:12-cv-00100-MPM-JMV, 7/18/13).
Granting a motion to dismiss, the court noted particularly the very different natures of the original novel and the movie and concluded that the use was highly transformative.
From his base in northern Mississippi, William Cuthbert Faulkner (1892-1962) authored some of the most highly regarded works of American literature, including short stories, screenplays, essays, letters, plays, and--most significantly--19 novels, many of them set in the fictional Yoknapatawpha County, Miss., including The Sound and the Fury (1929) and As I Lay Dying (1930).
In 1950, Faulkner published the novel Requiem for a Nun, which centers on the protagonist's efforts to save her nanny from being executed for the death of her child. The novel features one of Faulkner's most famous lines, spoken by the protagonist's attorney:
The past is never dead. It's not even past.
This line has been widely quoted, including in March 2008 by then-U.S. Sen. Barack H. Obama Jr., in a famous speech on race relations, given in reaction to a media firestorm surrounding his relationship with the Rev. Jeremiah A. Wright Jr.
Woody Allen (born Allan Stewart Konigsberg in 1935) is one of America's best-known screenwriters and directors of dramatic and comedic films. In his 2011 comedic film Midnight in Paris, Gil Pender, a character played by actor Owen Wilson, travels back in time to the Paris of the 1920s and the 1890s, where he meets many of the great literary and artistic figures of those times, including William Faulkner. At one point in the movie, Pender says the line:
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 Literary Rights L.L.C., which administers Faulkner's intellectual property rights, sued Sony Pictures Classics Inc., the studio that released Midnight in Paris, alleging that this line from the movie constituted infringement of Faulkner's copyright.
Sony Pictures moved for dismissal under Fed. R. Civ. P. 12(b)(6) for failure to state a claim for which relief is available under the law.
Granting dismissal, Judge Michael P. Mills began by quipping about a creative work with less literary prestige than those of Faulkner or Woody Allen, specifically, a made-for-basic-cable disaster movie featuring Tara Reid and Ian Ziering by noted “knockbuster” producer the Asylum, and premiered by the SyFy Channel in 2013:
The court has viewed Woody allen's movie, Midnight in Paris, read the book, Requiem for a Nun, and is thankful that the parties did not ask the court to compare The Sound and the Fury with Sharknado.
Turning to the substance of the claims, the court determined that the use of the line in the Woody Allen movie constituted fair use. In reaching this decision, the court applied the four-factor balancing test as set forth in the Copyright Act, 17 U.S.C. §107.
Here, a weighty and somber admonition in a serious piece of literature set in the Deep South has been lifted to present day Paris, where a disgruntled fiancé, Gil, uses the phrase to bolster his cited precedent … in a comedic domestic argument with [his fiancée]. Moreover, the assertion that the past is not dead also bears literal meaning in Gil’s life, in which he transports to the 1920′s during the year 2011. It should go without saying that this use is highly distinguishable from an attorney imploring someone to accept responsibility for her past, a past which, to some extent, inculpates her for the death of her child.
Characters in both works use the quote for antithetical purposes of persuasion. On one hand is a serious attempt to save someone from the death penalty, and on the other is a fiancé trying to get a leg up in a fleeting domestic dispute.
This extreme difference between the two works made the Woody Allen use transformative, the court said, especially considering the “miniscule amount borrowed” from Faulkner.
Turning to the factor addressing the nature of Faulkner’s work, the court determined, while declining to determine whether the Woody Allen use constituted a parody, that this factor favored neither side.
Regarding the substantiality of the portion of Faulkner’s work used by Woody Allen, the court said that not only was the quotation very small compared to the side of the work, but it also constituted “only a small portion of the expression of this idea throughout the novel,” the idea in question being that the past cannot be forgotten.
Finally, the court found no compelling evidence that the use of the quotation in the movie would have any negative effect on the market for Faulkner’s novel.
Considering this factor, the court said that even if it could be shown that Woody Allen had used the line in a bad faith attempt to injure the value of Faulkner’s work, such a showing would not be relevant.
The court dismissed as meritless claims under the Lanham Act and Mississippi state commercial misappropriation law.
Faulkner Literary Rights was represented by J. Cal Mayo Jr. of Mayo Mallette, Oxford, Miss. Sony Pictures was represented by Christian Dominic Carbone of Loeb & Loeb, New York.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).