Requiem for a Fair Use Challenge

In Woody Allen’s film Midnight in Paris, a character played by actor Owen Wilson describes his experiences meeting literary stars like Ernest Hemingway and F. Scott Fitzgerald by proclaiming, “[t]he 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.” This line in the movie’s script references William Faulker’s Requiem for a Nun, in which he wrote, “[t]he past is never dead.  It’s not even past.” 

Unfortunately for Sony Pictures, which distributed Midnight in Paris, Faulkner’s estate took issue with this reference and sued Sony Pictures for copyright infringement.  Fellow Kat Eleonora described the details of the suit in a post on the 1709 Blog here. Upon reading Eleonora's post, this Kat recalls thinking, "there's no way the Faulkner estate will prevail." This Kat believed the Faulkner estate would have an uphill battle in its copyright claim against Sony because of the various exceptions to copyright infringement that Sony was sure to raise as defences. 

In the United States, use of a portion of a copyright protected work does not infringe the copyright in the underlying work if the use constitutes “fair use”.  Section 107 of the Copyright Act defines the factors of a fair use determination:

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.

In particular, factors (3) and (4) would prove fatal to the Faulkner estate’s case.  Midnight in Paris made reference to a very small portion – just nine words – of Faulkner’s novel.  In addition, the use of the Faulkner quote was incorporated into a different medium, a movie, as opposed to another written work.  Thus the use was transformative, as well as less likely to cause any consumer confusion as to the existence of an affiliation between the movie producers and the Faulkner estate.  In addition, there is little likelihood that viewing the movie Midnight in Paris would cause the viewer to forego reading Faulkner’s book.  In fact, according to the US District Court judge, who issued his ruling on the case on Thursday, it was more likely that the movie would create interest in the book among viewers who may not have previously been aware of or interested in Faulkner’s book. 

As reported in The Hollywood Reporter, the judge concluded that, “it should go without saying that the quote at issue is of miniscule quantitative importance to the work as a whole. Thus, the court considers both the qualitative and quantitative analyses to tip in favor of fair use." 
This Kat not surprised by this determination and believes this is the right outcome under the circumstances.
Full ruling available on The Hollywood Reporter here
Requiem for a Fair Use Challenge Requiem for a Fair Use Challenge Reviewed by Miri Frankel on Sunday, July 21, 2013 Rating: 5


  1. Copyright infringement? This sounds a bit more like "product placement" without the fee.

    The plaintiff should also consider suing the Mississipi court, as the judge reproduced in his opinion not only the disputed 10 words, but also a longer passage from the book of about 60-70 words. (He must have enjoyed himself).

    Is it normal that this case is tried at a venue closer to the plaintiff than to the defendent?

  2. Roufousse, the judge does note that he is a fan of both Faulkner and Woody Allen. His use of the works in his judicial opinion surely constitutes fair use. :)

    Regarding the venue, a plaintiff can file in its preffered jurisdiction if there is sufficient "contact" with the defendant (in this case, Sony's movie distribution activities in Mississippi). However, a defendant can challenge the venue and request that the case be transferred to a more convenient or appropriate location (for ease of discovery and other reasons). My guess is that Sony felt confident enough that they would succeed in their motion to dismiss the case in entirety that it didn't bother to first request a venue transfer (which would have extended the life of the litigation).


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