The Most Ridiculous Copyright Infringement Lawsuit Ever Filed–Ever!
by Jerry Glover
August 8, 2013
William Faulkner’s novel, “As I Lay Dying,” is based on the theme that the past cannot be discarded or escaped. Unfortunately the organization representing Faulkner’s literary estate believed that theme could be parlayed into a copyright infringement suit against Sony Pictures because a character in the Woody Allen Film, “Midnight in Paris,” quoted one line from the novel. The character even attributed it to Faulkner. Thus were thousands of dollars spent (and wasted) in what has to be the most ridiculous copyright infringement suit ever filed. Faulkner Literary Estate v. Sony Pictures Classics Inc., 2013 WL 3762270 (N.D. Miss. July 18, 2013) (“Faulkner Estate”).
The film is a comedy set in the present day, but one of the film’s characters, portrayed by Owen Wilson, visits with such deceased literary figures as Hemingway, Faulkner and Fitzgerald each midnight for several evenings. At one point in the film, Wilson’s character accuses his fiancé of having an affair, an idea he claims he got from several of those authors. When his fiancé notes that all of these writers are dead, he states, “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 line from Faulkner’s novel is: “The past is never dead. It’s not even past.”
Following the estate’s initiation of the lawsuit, Sony answered by claiming the paraphrase was a de minimis use of Faulkner’s copyrighted material and/or a fair use of that same material. The federal district court basically combined those two defenses and found that the paraphrase was a fair use of the material.
To determine whether the use of copyrighted material is a fair use, the Copyright Act requires court to look to at least four factors. The first factor is the “purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” 17 U.S.C. Sec. 107(1). The courts have interpreted this fact to mean that the defendant’s use of the copyrighted material has transformed it into something new. In this case, the court noted that Faulkner’s quote was a “weighty and somber admonition” in a serious piece of literature during which an attorney attempts to get a character to accept responsibility for the killing of a child. In contract, the movie character’s paraphrase of the quote was used in one scene of a comedy film involving a domestic argument. Thus the court held that the paraphrased quote altered the original quote and added new meaning to it. In addition, the court noted that the differences in the two media—book and film—was a “transmogrification in medium” and therefore a transformative use. Faulkner Estateat 6.
The nature of the copyrighted work is the second fair use factor. Sony argued that the Wilson character’s use of the quote was a parody. The court found it unnecessary to make any determination on this question since it found the paraphrase to be highly transformative, even if the paraphrase is not a parody. Therefore, this factor favored neither side.
The third fair use factor is the substantiality of the portion used in relation to the copyrighted work as a whole. 17 U.S.C. Sec. 107(2). The Faulkner estate did not argue that Sony’s paraphrase of the quote was quantitatively important (how could it: 8 seconds of paraphrase in a 90 minute film). Faulkner did argue, however, that the theme of the quote as found in both the book and the film (there is no such thing as past) was an infringement of qualitative importance. The court noted however that copyright law does not protect themes or ideas so this fair use factor weighed in favor of Sony. This factor favored Sony.
The final fair use factor is the effect of the use upon the potential market for or value of the copyrighted work. Id. at Sec. 107(3). Courts look not only at the immediate harm the defendant’s use of the plaintiff’s material might cause but also whether similar unrestricted conduct by others might have an adverse impact on the potential market for plaintiff’s work. Here, the Faulkner estate alleged no specific immediate harm and no evidence of potential harm. The court expressed bewilderment at Faulkner’s argument (and, probably, over why this lawsuit was even brought): “How Hollywood’s flattering and artful use of literary allusion is a point of litigation, not celebration is beyond this court’s comprehension.” Faulkner Estate at 8. This factor favored Sony.
Since most of the fair use factors clearly favored Sony the court determined that the paraphrase was a fair use.
Lesson for copyright owners: Please go after only those infringers who do harm to the financial and/or artistic interests in your work. Otherwise, you may be criticized for causing a lot of judicial sound and fury.