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Sony Pictures Classics has responded in court to a lawsuit brought by the owner of the rights to the literary works of the late William Faulkner over a quote used in Woody Allen‘s Midnight in Paris.
Sony is asking for a dismissal to the lawsuit and gives the judge reasons why it was fair to repurpose a passage in Faulkner’s 1954 work Requiem for a Nun, which the studio labels a “relatively obscure work.” The studio points to those like Woody Allen who are familiar with what Faulkner had to say — “The past is never dead. It’s not even past” — arguing that these nine words have been paraphrased by others, including the band Ben Folds Five, ABC News, The New York Times and President Barack Obama.
“Plaintiff’s extreme — and absurd — position in this case is that it is unlawful to even minimally quote Mr. Faulkner’s work without consent,” say Sony’s lawyers. “Such a holding would be contrary to the very purpose of the Copyright Act, and other laws.”
Midnight in Paris features a protagonist played by Owen Wilson who travels to Paris and finds himself spending time with literary greats including F. Scott Fitzgerald, Ernest Hemingway and Gertrude Stein.
In theory, the movie could have invited the various estates of the 20th century literary canon to object over their likenesses; instead, the lawsuit that actually followed came from a place that Sony probably didn’t anticipate — not from any author who was featured as a character (at least not on screen), but rather an author who was quoted — or rather, misquoted.
In the film, the Wilson character describes his experience of magical realism by saying, “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. ”
In a memorandum asking a judge to dismiss the lawsuit, Sony’s attorney Christian Carbone at Loeb & Loeb articulates why the claims by Faulkner Literary Rights LLC should be regulated to the past.
The big reason given is that use of Faulkner’s quote was de minimis and “fair use.”
Sony says that using “an attributed paraphrase of just nine words of a novel, repurposed for comedic effect” is slight and fleeting — and that it can’t be held to rise to the level of an infringement. Midnight in Paris wasn’t the first to use the quote, Sony points out. Other examples cited include the Ben Folds Five song “Smoke”, an ABC News broadcast on the Kennedy assassination, a NYT article on the Chicago Cubs (“Cubs’ Past Isn’t Dead; It Isn’t Even Past”) and a celebrated Obama speech (“The past isn’t dead and buried. In fact, it isn’t even past.”)
Sony says the case “presents a classic case of ‘fair use,’ a critical doctrine fostering creative and artistic expression, journalism and scholarship … Without fair use, critics and scholars could not quote the very works they write about. Andy Warhol‘s art would be almost entirely infringing, and satirists such as The Daily Show and Saturday Night Live could never parody a movie or a TV show — indeed, parody itself would be essentially impossible.”
Sony says its use was “transformative” — a factor in the fair use analysis — taking Faulkner’s “serious-minded, somber work of literature set in historical Mississippi” and delivering it to a “fantasy and romantic comedy, set in Paris.” Faulkner’s themes of sin and redemption are different than Allen’s of the “seductiveness — and the limitations — of nostalgia for earlier times,” says Sony.
The plaintiff isn’t merely suing for copyright infringement. There’s also a Lanham Act claim, suggesting that use of the quote makes consumers believe Faulkner sponsored or endorsed the film. Sony says this claim “improperly seeks to subvert copyright law.” Quoting an important Supreme Court decision on trademark from 2003, the studio warns that allowing such a claim would create a “species of perpetual patent and copyright.”
“This is nothing but a (failed) copyright claim in disguise, and Plaintiff cannot use the Lanham Act to circumvent that reality,” says the memorandum.
Sony is also hoping to knock out Faulkner’s commercial appropriation claim (which is akin to asserting publicity rights), arguing for dismissal because it is also a “reformulated copyright claim,” and thus preempted. And even if it’s not, the studio adds, “Mr. Faulkner is deceased, and thus has no ‘privacy’ right that can be invaded,” and “Mississippi has not recognized any post-mortem publicity right either.”
One of the ironies of this lawsuit is that it has come within Hollywood’s ranks. The person who gave it the green light was Lee Caplin, who manages Faulkner’s literary estate and also happens to be a producer, responsible for a dozen films including Ali. We spoke to him, and he insists that the fair use defense will fail because the movie was “commercial” in nature. It’s a major source of disagreement with Sony, which believes the film was an “expressive work” and thus afforded more First Amendment protection. As an example of what’s an expressive use of Faulkner’s words that falls in-bounds, Caplin mentions the same Obama speech. The next question is whether it’s permissible for Obama to leave office, print his major speeches in a book, and sell it to the public with the Faulkner quote included.
E-mail: firstname.lastname@example.org; Twitter: @eriqgardner
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