Requiem for a Ridiculous Lawsuit

by Greenberg Glusker Fields Claman & Machtinger LLP

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.”

Judicial Humor

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.

Copyright Analysis

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.”

Trademark Analysis

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.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Greenberg Glusker Fields Claman & Machtinger LLP | Attorney Advertising

Written by:

Greenberg Glusker Fields Claman & Machtinger LLP

Greenberg Glusker Fields Claman & Machtinger LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.