Posted by: Paul A. Forsyth | July 19, 2013

Faulkner and Fair Use

Sometimes, a court can reach the right result, but do so for the wrong reasons. Clients tend not to care about this so much, in their cases, since they are focused on the objective outcome — the bottom line, if you will. But lawyers look at a decision, even where the judge or judges have reached a favorable result, and see shoddy or troubling legal reasoning, and we think, “This reasoning, as precedent, could come back to bite us in the future.”

That is what I thought about when I read this story in The Guardian about a recent decision in a copyright case involving Woody Allen’s use of one line from a William Faulkner novel in the movie Midnight in Paris. (This blog noted the case back in April.) A federal judge in the Northern District of Mississippi has ruled for the defendants, finding that the use of the quote does qualify as fair use. So far, so good. (Full disclosure: I have not as yet read the full decision, only the Guardian article.) But look at the judge’s reasons for his finding of fair use:

In his ruling, US District Judge Michael Mills noted: “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. This transmogrification in medium tips this factor in favour [sic] of transformative, and thus, fair use.”

He added that the quote’s use in the film didn’t harm the market for Faulkner’s work and most likely would be of benefit to the estate: “The film indeed helped the plaintiff and the market value of Requiem if it had any effect at all.”

So, if the line, by itself, were reprinted in a newspaper — or in a blog post — would the fair use defense be more questionable? How important is it that the quote was used in comedy, rather than a drama?

It’s one line, from a novel that includes over 280 pages and thousands of words. Two sentences. Look:

“The past is never dead. It’s not even past.”
William Faulkner
Requiem for a Nun (1950)

In this case, the dominant factor — the decisive factor, IMHO — should be the fraction of the original copyrighted work that is used. The Supreme Court tells us to look at “the substantiality of the portion used in relation to the copyrighted work as a whole.” Harper & Row, Publishers, Inc., et al. v. Nation Enterprises et al., 471 U.S. 539, 560-61 (1985) (O’Connor, J.). Here, the “substantiality of the portion used” is miniscule compared to the novel as a whole. That fact should be the anchor of a finding of fair use.

I have to agree with Ann Althouse here:

Oh, good lord. I’m sure we’re allowed to quote that quote whenever we want, in newspapers and songs, even pretending we just thought it up, without getting permission from the Faulkner people and without crediting Faulkner. Anyone can Google who said the past is never dead it’s not even past (or the Woody Allen paraphrase) will get to the details about Faulkner. And now, they’ll also get to the news of the heirs’ disgusting effort to cash in on a cliché that had long ago run free into the common speech.

Hey, I said that first, moaned the undead William Faulkner in his grave.

If zombie Faulkner is that petty, I don’t want to read him. And if the descendants of Faulkner want us to think that he is, they should sue themselves for defaming him.

The Guardian piece includes this predictable gem from the unsuccessful plaintiffs:

Lee Caplin from the Faulkner estate commented: “We are obviously quite disappointed. We think it is going to be very bad for artists everywhere. Right now, our decision is to reconvene and analyze our next moves.”

Yeah, you do that, prick. Oh yes, I’m sure this precedent will be positively catastrophic for “artists everywhere.”

Balderdash.

There are some good things about this decision (I particularly like that Chief Judge Mills notes that this movie is not likely to hurt the market value of Faulkner’s novel), but there’s still that troubling language in the decision, like a fly in my ice cream. Maybe this will look better after I read the full decision, but I am not hopeful.

Update (July 19, 2013, 12:00 PM): via Anderson, Rebecca Tushnet has this extensive post on the District Court’s decision. She says, near the beginning, “in an ideal world this would’ve been a two-page order with Rule 11 sanctions attached. Instead, we get a muddle saying that using a paraphrased Faulkner quote in a movie is a de minimis fair use, or maybe it’s just de minimis.” Muddle is a good term for the court’s opinion. Please do read the whole thing.

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Responses

  1. You are dead right Paul, that is a troubling way to come to that conclusion. I can’t even understand why this doesn’t get thrown out of court in the first place.


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