For many Woody Allen fans, “Midnight in Paris” is a delightfully novel fantasy, deserving of the finest cinematic accolades.  The William Faulkner estate, however, sees things very differently.  According to Faulkner Literary Rights, LLC, the Academy Award-winning film infringes the estate’s copyright to one of Faulkner’s most famous quotes–and misleads audiences in the process.

In the book Requiem for a Nun, William Faulkner wrote: “The past is never dead.  It’s not even past.”  Owen Wilson’s character paraphrased this quote in “Midnight in Paris.”  Wilson stated: “The past is not dead.  Actually, it’s not even past.”  He further clarified: “You know who said that?  Faulkner.  And he was right.  And I met him, too.  I ran into him at a dinner party.”

Because of Wilson’s ten little words (which were attributed to the deceased author), Faulkner Literary Rights sued Sony Pictures Classics, the distributor of the film.  Faulkner’s estate claims that the use of the quote is a copyright violation. The estate requests damages, profit disgorgement, attorney fees and costs from Sony.

While Sony did not obtain a license to use Faulkner’s quote, the company claims that the entire lawsuit is frivolous because the quote constitutes fair use in the film.  Under copyright law, the fair use doctrine offers an exception to a copyright owner’s exclusive right to his work, allowing limited use of the copyrighted material without the owner’s permission.  According to the Copyright Act:

“In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.”

Under the fair use doctrine, non-commercial uses of copyrighted works are generally more permissible than commercial uses.  However, commercial use of material does not necessarily negate a fair use defense–particularly when the owner of the copyrighted material is not economically harmed by the subsequent use.

Does Sony’s fair use argument seem warranted in this case?  Was the Faulkner estate really harmed by the use of Faulkner’s quote in “Midnight in Paris”?  If so, how?

Julie Latsko

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5 Responses to Ten Expensive Little Words: Faulkner Estate Sues Over Brief Quote in Woody Allen Film

  1. JL says:

    Good catch, Matt. Relying on several other media sources, I was under the impression that the “likely to cause confusion” language was associated with the copyright claim—the brainchild of a “confused” attorney. However, it turns out that there was also a (less publicized) trademark claim. The “likely to cause confusion” language is associated with the trademark claim, not the copyright claim. Post will be edited shortly!

  2. Matt Ginther says:

    I’m confused. Is this a claim in copyright or in trademark? The emphasis by the attorney seems to be on confusion, as if this was brought under Lanham, but then the article went into copyright fair use. While I definitely can see this as a copyright claim (that will fail either on the improper appropriation test, or as a fair use), I am struggling to see the Lanham claim, so is the lawyer confused, or am I?

  3. Marina Visan says:

    Not only would the claim be defeated by the fair use defense, but I would argue that we don’t even need to get there. Where is the likelihood of confusion? Owen Wilson’s character attributed the quote to Faulkner, so I am somewhat unclear on what exactly the viewers are confused about. I really doubt that any viewer would be confused about the affiliation between Faulkner and Sony. And yes, if somehow the plaintiffs manage to argue that there is in fact likelihood of confusion, then the fair use defense would definitely render the suit frivolous. However, like I said, I don’t see how they can even satisfy the pleading standard.

  4. Erin Reimer says:

    Like Andrew, I am having a hard time understanding the motivation behind the Faulkner estate’s lawsuit. Even if the court somehow determines that the claim has merit and there is no fair use defense, it seems impossible to determine damages. Profit disgorgement, or handing over all of the movie’s profits to the estate, would be truly disproportionate to the infringement, and I don’t know how the court could determine what proportion of the movie’s profits were attributable to the infringement. While uncertainty regarding amount of damages is not a reason to dismiss a suit, I think this problem is an indication of why the suit is so puzzling.

  5. Andrew Solinger says:

    First off, Midnight in Paris is a great movie! But perhaps more importantly, this lawsuit is frivolous. Based on the third factor, the movie uses a total of nine words from Faulkner out of a book that totals nearly 250 pages. The amount of the copyrighted work that the movie uses is infinitesimal. The fourth factor of the fair use test, however, is perhaps the most important for the courts and clearly works in favor of Woody Allen and Sony. Unless Faulkner’s estate can produce some evidence that would show any effect of this nine-word quote on the market for Faulkner’s work, they will certainly lose this suit. The market for William Faulkner books does not overlap with the market for Woody Allen films, and therefore Faulkner’s estate is unlikely to be able to prove any harm.