By Mark Litwak
In 2011 Sony Pictures Classics released the hugely popular
movie “Midnight in Paris,” written and directed by Woody Allen. The story
centers on the character Gil Pender, a disillusioned Hollywood screenwriter who
longs to be a serious novelist. Pender, played by Owen Wilson, is on vacation in
Paris with his fiancée, played by Rachel McAdams.
Pender feels he is living in the wrong time, and soon is magically
transported to the Bohemian Paris of the 1920s, where he meets such luminous
figures as Ernest Hemingway, Gertrude Stein, F. Scott Fitzgerald, Pablo Picasso
and Salvador Dali. This gives him the occasion to talk to his artistic heroes
about his own work.
At one point Pender accuses his fiancée of having an
affair. Incredulous, the finance asks where he came up with such a notion. He mentions
Hemingway, Fitzgerald and Gertrude Stein, which even his fiancée realizes are
long dead, and she scorns the notion. Pender replies, “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.”
The inclusion of this short quote in the movie motivated Faulkner
Literary Rights, LLC (“Faulkner”), which manages the Faulkner’s literary estate
to bring suit for copyright infringement and unfair competition against Sony in
federal court in Mississippi. The quote
is from the Faulkner book Requiem for a Nun set in the fictional Yoknapatawpha County,
Mississippi.
It is unusual for a copyright infringement lawsuit to be based
on the use of such short quote in a movie. Granted, Faulkner is a famous, acclaimed
author, but what was borrowed here was an eight-second line of dialogue in a 94-minute
movie. The movie is not based on the plot of any of Faulkner’s stories, but is an
original creation from the imagination of Woody Allen.
Sony did not contest any of the facts as alleged in the
lawsuit and moved for the court to summarily dismiss the complaint. A motion to
dismiss challenges the legal sufficiency of a lawsuit, and the court needs to
decide, assuming all the facts pled are eventually found to be true, whether
there is a plausible legal claim. If the plaintiff is unable to prevail, even
if it can prove all the facts it has alleged, there is no point in trying the
case before a jury, and the court can decide the outcome as a matter of law.
Under the fair use doctrine, copyright law allows the right
of the public to draw upon copyrighted works to produce separate works of
authorship. Such uses include fair comment and criticism, parody, news
reporting, teaching, scholarship, and research. Thus, a movie or literary
critic does not need permission to include a small quote from a work being
reviewed. It is sometimes said of writers, that if you borrow extensively from
another’s work, you are a thief; but if you borrow bits from thousands, you are
a scholar. Of course, the scholar adds value by synthesizing information from
prior works and creating something new. This is what known as a “transformative
use.” Here, however, Woody Allen’s use of the Faulkner material is not part of
a literary review or news reporting. Woody Allen is borrowing the quote for use
in an entertaining movie, which was a huge commercial hit, grossing $151
million at the box office.
In determining whether the use of a copyrighted work is a fair
use, courts weigh four factors: 1) the purpose and character of the work; 2)
the nature of the copyrighted work; 3) the amount and substantiality of the
portion borrowed in relation to copyrighted work as a whole; and 4) the
potential adverse effect on the market for, and value of, the copyrighted work.
In applying these factors to a specific factual situation,
it can often be difficult to predict whether a use will fall within the
doctrine. Generally speaking, a greater amount of material may be borrowed from
non-fiction works than from fictional works. Clearly, a writer can borrow
historical facts from a previous work without infringing upon the first
author’s copyright, because of both the fair use doctrine and because
historical facts are not copyrightable. Moreover, since factual works, unlike
works of fiction, may be capable of being expressed in relatively few ways,
only verbatim reproduction or close paraphrasing will be an infringement.
One encounters a lot of grey areas in applying the fair use
doctrine. It is safe to say that a schoolteacher will be protected if she
photocopies a Newsweek article and distributes it to her class on one occasion.
If the schoolteacher, however, photocopies an entire textbook and distributes
it to her students in order to save them the expense of purchasing their own
texts, this would not be a fair use. But there are many situations that lie
between these two extremes; and in those cases it can be difficult to predict
whether the fair use doctrine will be an adequate defense.
In one case a biographer paraphrased large sections of
unpublished letters written by the famous author J.D. Salinger. Although the
public could easily read these letters at a university library, the author had
never authorized their reproduction. Salinger brought suit and succeeded in
prevented their publication.[1]
In another case, publisher Larry Flynt made disparaging
statements about the Reverend Jerry Falwell on one page of Hustler magazine. Without
permission, the Rev. Falwell reprinted several hundred thousand copies of the
page and distributed them as part of his own fund-raising effort. Flynt then
sued Falwell. Here the court found this was a fair use, perhaps because the
copying did not reduce sales of the magazine, which was already off the market.[2]
After reviewing all the facts, Michael p. Mills, chief judge
of the United States District Court Northern District of Mississippi, found in
favor of Sony and dismissed the complaint. The Faulkner quote at issue was
considered to be “of miniscule quantitative importance to the work as a whole… [and]
no substantial similarity exists between the copyrighted work and the allegedly
infringing work.” Moreover the judge said that it was:
…highly doubtful that any relevant markets have been
harmed by the use in Midnight. 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 Requiem if it
had any effect at all.
The court found that Sony’s use of the quote was a fair use.
However, the fact that Sony had to incur considerable legal fees to defend itself,
might will discourage an independent filmmaker with modest resources to rely on
the fair use doctrine.
