Jonathan Pink — Entertainment, Internet and New Media Partner at Lewis Brisbois, LLP Rotating Header Image

The Sound and the Fury of William Faulkner

Without disparaging anyone for filing a really silly complaint, you do have to sit up and take notice of this one. And probably scratch your head while you’re at it.

The basic scoop is this: Faulkner Literary Rights, the entity that was established to protect and monetize the works by the late, great William Faulkner, has sued Sony Pictures for copyright infringement, violation of the Lanham Act and commercial appropriation, all arising out of Woody Allen’s inclusion of a line in his film, “Midnight in Paris.”

Specifically, as alleged in paragraph 9 of the complaint, Allen’s lead character, portrayed by Owen Wilson, 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.’” (Complaint, ¶9.) As alleged in paragraph 10, Faulkner’s actually wrote (in the book “Requiem for a Nun”), “the past is never dead. It’s not even past.” (Complaint, ¶10.)

Really? A claim for copyright infringement based on that? Even the complaint has a hard time putting forth this allegation, stating little more than the plaintiff is the owner of the copyright in the book that contains that line, and that as such it has “the exclusive right to reproduce and distribute” that book and the quote itself. ” (Complaint, ¶16.)

But folks, that’s not the end of the story. There’s much to be said about this, but let’s keep it simple and focus on fair use.

As you may recall, fair use “is ‘a privilege in others than the owner of the copyright to use the copyrighted material in a reasonable manner without his consent.’” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 549 (1985) (quoting H.Ball, Law of Copyright and Literary Property 260 (1944)); Eldred v. Ashcroft, 537 U.S. 186, 219 (2003) (“[C]opyright law contains built-in First Amendment accommodations . . . the ‘fair use’ defense allows the public to use not only facts and ideas contained in a copyrighted work, but also the expression itself in certain circumstances.”); Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994) (“The fair use doctrine thus ‘permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.’”); Blanch v. Koons, 467 F.3d 244, 250 (2d Cir. 2006) (“Copyright law thus must address the inevitable tension between the property rights it establishes in creative works, which must be protected up to a point, and the ability of authors, artists, and the rest of us to express them-or ourselves by reference to the works of others, which must be protected up to a point. The fair-use doctrine mediates between the two sets of interests, determining where each set of interests ceases to control.”); Mattel Inc. v. Walking Mountain Productions, 353 F.3d 792, 799 (9th Cir. 2003) (“Recognizing that science and art generally rely on works that came before them and rarely spring forth in a vacuum, the Act limits the rights of a copyright owner regarding works that build upon, reinterpret, and reconceive existing works.”); Abilene Music, Inc. v. Sony Music Ent., Inc., 320 F. Supp. 2d 84, 88 (S.D.N.Y. 2003) (“The affirmative defense of fair use fosters artistic dialogue and influence within the copyright regime by protecting authors’ rights [to] build upon and transform existing works without having to purchase a license to do so.”).
Ok, you get the point.

The fact is I just do not understand how the Faulkner folks get around fair use. Even applying the standard fair use factors set forth in 17 U.S.C. Section 107 gets you right back to: Just what the hell were you thinking, plaintiff?

As you’ll recall, the most important factors have oft been said to be the first and the fourth set forth in Section 107. The first looks at the purpose and character of the defendant’s use. 17 U.S.C. § 107(1). See Wright v. Warner Books, Inc., 953 F.2d 731, 736 (2d Cir. 1991) (“there is a strong presumption that factor one favors the defendant if the allegedly infringing work fits the description of uses described in section 107″).

To this end, a primary issue under the first factor is whether the infringing work is transformative or merely supersedes the need or the market for the original. See Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., 150 F.3d 132, 142-43 (2d Cir. 1998) (book containing trivia questions about copyrighted television program not sufficiently transformative). A transformative work is generally held to be one which “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message. . . .” Campbell, supra, 510 U.S. at 579 (1994); Warner Bros. Entertainment Inc. v. RDR Books, 575 F. Supp. 2d 513, 541 (S.D.N.Y. 2008) (“Courts have found a transformative purpose both where the defendant combines copyrighted expression with original expression to produce a new creative work . . . and where the defendant uses a copyrighted work in a different context to serve a different function than the original.”).

Well isn’t that what Woody Allen did here? It’s not like “Midnight in Paris” superseded or replaced Faulkner’s “Requiem for a Nun.” I’m not even sure how, with a straight face, one could argue that Allen’s work was anything shy of transformative. See A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630, 639 (4th Cir. 2009) (use can be transformative in function or purpose without altering or actually adding to the original work); Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1165 (9th Cir. 2007) (Google’s use of copyrighted images in thumbnail search index deemed highly transformative, though images were not altered, because the use served a different function than the images served); Lennon v. Premise Media Corp., L.P., 556 F. Supp. 2d 310, 324 (S.D.N.Y. 2008) (to be transformative, it was not necessary that defendants alter the music or lyrics of Imagine).

Another important consideration in the fair factors is the fourth, which looks at the risk of market substitution for the original work. See Ty, Inc. v. Publications Int’l Ltd., 292 F.3d 512, 517-18 (7th Cir. 2002) (copying that is complementary to the copyrighted work is fair use, but copying that is a substitute for the copyrighted work is not fair use).

Could it really be said here that Wood Allen copied Faulkner’s material so he could use it for the same purpose as Faulkner intended it to it to be used? I don’t think so. Allen was quoting Faulkner for a concept, an idea, and had the Wilson character both indicate that Faulkner had said it and that he – the contemporary character who had traveled back in time – agreed with it. I don’t see how that could ever serve as substitute for Faulkner’s writing. See Infinity Broadcasting Corp. v. Kirkwood, 150 F.3d 104, 108 (2d Cir. 1998) (use of infringed radio broadcasts for information rather than entertainment tends to support fair use claim).

Well, it will be interesting to see where this goes. I can’t imagine it getting off the ground, but you never know. Maybe the plaintiff can make this seemingly absurd claim fly. Or maybe the process will just incredibly painful.

Of course, as Faulkner said “Given the choice between the experience of pain and nothing, I would choose pain.”

Jonathan Pink is a media and intellectual property lawyer at Bryan Cave, LLP. He can be reached at jonathan.pink@bryancave.com.

Jonathan Pink is a business lawyer with a specialty in copyright, patent and trademark litigation. His clients include many of the biggest names in the automotive and motorcycle aftermarket parts industries, and one of world's largest media companies. He has extensive experience in a wide range of intellectual property and commercial disputes including breach of contract, fraud, and the misappropriation of trade secrets. He can be reached at 949.223.7173, or at jonathan.pink@bryancave.com, and his full profile can be viewed at www.bryancave.com.

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