A story in circulation yesterday concerned a claim of infringement over the use of nine words in a film. (See Dave Itzkoff of the New York Times here, Holbrook Mohr writing for AP through the Times Colonist here, and Ted Johnson writing for Variety here). The literary estate of William Faulkner objected to the inclusion of Faulkner’s wording from Requiem for a Nun (1950): “The past is never dead. It’s not even past.” Woody Allan, in Midnight in Paris (2011), has a character proclaim: “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.”
Fair use called out, loud and clear. It is almost beyond belief that the estate thought this case could be won (more on that below). Judge Michael P. Mills, of the Northern District of Mississippi, states the issue and his decision at the outset:
At issue in this case is whether a single line from a full-length novel singly paraphrased and attributed to the original author in a full-length Hollywood film can be considered a copyright infringement. In this case, it cannot.
Making it clear that the estate had provided little in the way of argument, Mills nevertheless considers if fair use is applicable and then proceeds with a fair use analysis. (I avoid most specific details but — spoiler alert — the opinion tells all.)
After accepting evidence that Faulkner’s work is still under copyright, Mills explains that a charge of infringement rests on “substantial similarity,” which “is measured by considering the qualitative and quantitative significance of the copied portion in relation to the plaintiff’s work as a whole.” Beginning with the statutory language of fair use and its four-factor analysis as given in 17 U.S.C. § 107, Mills reminds us that fair use has been defined as: “a privilege in others than the owner of the copyright to use the copyrighted material in a reasonable manner without his consent.” Then he unveils his analysis.
(i) Purpose and character of the use. This determines whether the later work moves forward from the original work, “… with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is transformative.” Comparing Faulkner’s book to Allen’s movie, Mills is explicit in the dissimilarity of the two uses of the nine words. The time, setting and characters are not at all the same, and the intent of the wording conveys an entirely different argument: “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.” The shift in genre and medium (serious literature to romantic comedy, book to film) coupled with the “miniscule amount borrowed” essentially decides the case. The transformative element is so great as to “[diminish] the significance of considerations such as commercial use that would tip to the detriment of fair use.”
(ii) Nature of the copyrighted work. Faulkner’s estate attempted to resist the applicability of fair use to excerpts from the book, on grounds that a precedent setting case (Campbell v. Acuff-Rose Music, Inc.) had upheld fair use in application to parody but Allen’s movie was not a parody of Faulkner’s book. Mills is not distracted by the misdirection: “The court declines to determine whether or not [the movie’s] use constitutes a parody because it has found the work to be highly transformative under the first factor, whether parody or not.”
(iii) Amount and substantiality of the portion used in relation to the copyrighted work as a whole. Faulkner’s estate had argued that while the work was not quantitatively significant, the use was infringement because of the qualitative nature of the wording: “[it] describes the essence of [the book].” Mills does not agree, saying that the argument addressed the qualitative merit of a theme, not the expression of the theme. Themes, like ideas, are not copyrightable–only their expressions are. In this case, expressions of the theme occur several times throughout the book and thus the copied words represented only “a fragment of the idea’s expression.” Mills then adds this gem: “This analysis is not influenced by the quote’s subsequent fame as a succinct expression of the theme. Qualitative importance to society of a nine-word quote is not the same as qualitative importance to the originating work as a whole.”
(iv) Effect of the use upon the potential market. Mills indicates that in light of analysis of the first factor, this is moot. Mills could have stopped there but goes on to say:
The court is highly doubtful that any relevant markets have been harmed by the use in [the film]. How Hollywood’s flattering and artful use of literary allusion is a point of litigation, not celebration, is beyond this court’s comprehension. The court, in its appreciation for both William Faulkner as well as the homage paid him in Woody Allen’s film, is more likely to suppose that the film indeed helped the plaintiff and the market value of [the book] if it had any effect at all.
And now this gets interesting. Mills writes that the estate had anticipated providing evidence that it usually licenses Faulkner’s content and that Allen’s use of the nine words would “adversely impact [the estate’s] ability to exploit for its financial benefit its property rights [in the book].” Mills response is unsympathetic: “The court is doubtful that any discovery to this effect will prove fruitful since the court does not consider a copyright holder to be entitled to licensing fees for fair use of his or her work.”
The estate had also attempted to argue that since other copyrighted material had been licensed for use in the film, the same treatment should apply. Mills is not impressed here either:
This court’s inquiry is whether the use of Faulkner’s quote is fair use, not whether the rest of the work used in the film would have required a license agreement. Such considerations would require several detailed inquiries into the fair use of several other works. The court notes the obvious distinction between the use of Cole Porter and Pablo Picasso’s work at the outset, however: they are used in their entirety while [Faulkner’s work] is by fragment only. Thus, the court finds this consideration to be irrelevant.
All in all, the estate’s claim rested not upon the law, but on the expectation of achieving a license. And this was not an isolated event.
Last fall, when the estate began legal action against Midnight in Paris, it also began proceedings against Northrop Grumman (a defense contractor) for its use of Faulkner’s work. The company had used fourteen words from Faulkner’s article titled “On Fear” (published in Harper’s in 1956). The wording (“we must be free not because we claim freedom, but because we practice it”) was attributed to Faulkner and appeared in a Fourth of July advertisement on the company’s web page. At the time, Alison Flood writing for The Guardian gave more details of “On Fear”; it is a reflection on the aftermath of a U.S. Supreme Court decision ordering the desegregation of schools.
While the unauthorized association of Faulkner to a defense contractor might be unpalatable to the estate, that is a claim of moral rights infringement, not copyright. (This is problematic for Americans as the United States does not observe moral rights in the manner that many other countries do.) The context and details of Northrop Grumman’s use are different but the behavior of the estate again smacks of rent-seeking. On that occasion, the estate seemed to get what it wanted; the dispute was privately settled with no details released. Randi W. Singer and Olivia J. Greer covered this story for Intellectual Property Magazine in February 2013.
Canadians may be pleased to know that all of Faulkner’s published texts entered our life+fifty public domain on January 1, 2013. In jurisdictions of lengthier term, they remain under lock and key, save for fair use and fair dealing.
A glimpse into the life of William Faulkner (1897-1962); Nobel laureate (1949)
In 1956 The Paris Review published an interview with Faulkner. Conducted by Jean Stein, early in their conversation she asks for Faulkner’s views of himself as a writer:
If I had not existed, someone else would have written me, Hemingway, Dostoyevsky, all of us. Proof of that is that there are about three candidates for the authorship of Shakespeare’s plays. But what is important is Hamlet and A Midsummer Night’s Dream, not who wrote them, but that somebody did. The artist is of no importance. Only what he creates is important, since there is nothing new to be said. Shakespeare, Balzac, Homer have all written about the same things, and if they had lived one thousand or two thousand years longer, the publishers wouldn’t have needed anyone since.
Race relations and civil rights were prominent in Faulkner’s stories and his life. In light of what is happening in the United States today, readers may be interested in this passage from On Fear:
If the facts as stated in the Look magazine account of the Till affair are correct, this remains: two adults, armed, in the dark, kidnap a fourteen-year-old boy and take him away to frighten him. Instead of which, the fourteen-year-old boy not only refuses to be frightened, but, unarmed, alone, in the dark, so frightens the two armed adults that they must destroy him…. What are we Mississippians afraid of?