Last month, I wrote about some notable examples of film and television producers being sued or threatened for using other peoples’ creations without permission. Examples included Emerson Electric suing NBC after Claire from Heroes stuck her hand in an “InSinkErator” brand garbage disposal; Coca Cola Company threatening legal action against an Italian film distributor over a film in which Jesus drinks a can of Coke in the desert; Louis Vuitton suing Warner Brothers over the unauthorized use of their luggage being used by a character who pronounced it “Luis” Vuitton in The Hangover Part II; and Mattel suing MCA Records over the song “Barbie Girl.” As if on cue, another such example has just arrived.
This month, a judge ruled on a lawsuit brought by Faulkner Literary Rights, LLC against Sony Pictures, Inc. for the studio’s use of a single line from the book Requiem for a Nun (written by that Nobel Prize winning William Faulkner guy) that was paraphrased and attributed to the author in the movie Midnight in Paris (directed by that controversial Woody Allen guy):
Original quote from Requiem for a Nun
Paraphrased quote in Midnight in Paris
“The past is never dead. It’s not even past.”
“The past is not dead. Actually it’s not even past. You know who said that? Faulkner, and he was right. I met him too. I ran into him at a dinner party.”
Before delving into the factual and legal analysis, the Chief Judge for the Northern District of Mississippi wrote that the court “viewed Woody Allen’s movie, Midnight and 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.” To get this joke, you probably need to understand the premises of these two works: The Sound and the Fury is a classic William Faulkner novel centered on a family of former Southern aristocrats who struggle with the dissolution of their family and its reputation—whereas Sharknado (whose official title actually is Sharknado: Enough Said!) is a movie about a tornado filled with sharks that wreaks havoc on the citizens of Los Angeles. In 1949, The Sound and the Fury helped Faulkner win his Nobel Prize. Earlier this month, Sharknado achieved greatness, albiet of a slightly different caliber, as the top trending topic on Twitter, drawing hilarious tweets from the likes of Wil Wheaton and Matt Damon (collected here). Presumably, the judge found this so amusing that he chose to cite Sharknado as an exaggerated example of a film that is “temporal” as opposed to its “timeless” counterpoint The Sound and the Fury.
Only time will tell, especially with Sharknado 2 currently in development.
After sharing his appreciation of Sharknado, Chief Judge Mills proceeded to examine the alleged copyright infringement. In the old days, a judge simply would have turned to the lawyer for the Faulkner people and said something along the lines of: “Are you freaking kidding me?” These days, however, a 17-page opinion is necessary.
At the outset, Judge Mills considered the parties’ arguments regarding “substantial similarity” and the doctrine of de minimis non curat lex (“the law cares not for trifles”), but concluded that, under Fifth Circuit law, they were subsumed by the general fair use analysis.
In analyzing the fair use doctrine, Judge Mills focused primarily on the first factor—the purpose and character of the use. Judge Mills first observed that “[t]he speaker, time, place, and purpose of the quote in these two works are diametrically dissimilar.” In Requiem for a Nun, the quote was used in a “serious attempt to save someone from the death penalty,” whereas in Midnight in Paris, the line is used by “a fiancé trying to get a leg up in a fleeting domestic dispute.” Judge Mills also found it “relevant that the copyrighted work is a serious piece of literature lifted for use in a speaking part in a movie comedy, as opposed to a printed portion of a novel printed in a newspaper, or a song’s melody sampled in another song.” According to Judge Mills, this “transmogrification in medium” tipped the first factor in favor of a transformative, fair use.
Judge Mills also heavily focused on the fourth factor—the effect of the use upon the potential market for or value of the copyrighted work. Judge Mills found it “doubtful that any relevant markets have been harmed by the use” and even stated: “How Hollywood’s flattering and artful use of literary allusion is a point of litigation, not celebration, is beyond this court’s comprehension.”
Judge Mills concluded the copyright analysis by finding that the use was “de minimis,” that “[t]he use is not actionable, and this claim is dismissed.”
Perhaps because the copyright claim was not outrageous enough, Faulkner Literary Rights, LLC also added a claim for trademark infringement (a/k/a a “Lanham Act” claim), based on the theory that the film would deceive or confuse “viewers as to a perceived affiliation, connection or association between William Faulkner and his works, on the one hand, and Sony, on the other hand.” This time, Judge Mills did respond with the judicial equivalent of “Are you freaking kidding me?” by summarily dismissing the claim after declining to “engage in a thorough analysis of this issue because a Lanham Act claim has not been established in the first place.”
Who Cares About this Case?
All fair use cases are important; even the stupid ones. This case is a perfect example of why: If you are a film-maker, songwriter, artist, etc., and you produce a work with national or international reach, you may find yourself in a lawsuit in a place you never expected—like the Northern District of Mississippi. Did Woody Allen or Sony ever expect to have to defend a lawsuit in Mississippi when they made the film? Probably not. So when people say that the only fair use decisions that really matter are from the Ninth Circuit (which covers California) or Second Circuit (which covers New York), they are wrong. While those circuits may have influential opinions, it is imperative to know how cases like this turn out in places like Mississippi. Judge Mills arrived at all the right answers in this case—but you can imagine different judges in different parts of the country reacting differently to various issues—especially if it’s a close call.