Insert Pun Here: “Dead,” “Requiem,” “Past,” “Woody”

A lot of people breathed a huge sigh of relief when a Mississippi federal judge dismissed (at the pleadings stage) claims for copyright infringement stemming from a paraphrase of a well-known William Faulkner quote in a Woody Allen movie. Then a lot of people scratched their heads at the basis: fair use, not something like de minimis (i.e., too short to be actionable)?

The allegedly infringing quote from the movie, Midnight in Paris, is: “The past is not dead. Actually, it’s not even past. You know you said that? Faulkner, and he was right. And I met him too. I ran into him at a dinner party.”

The quote from the Faulkner novel, Requiem for a Nun, one of the Yoknapatawpha novels*: “The past is never dead. It’s not even past.”

* The judge is clearly a much bigger fan of Faulkner than I am. I tried reading The Sound and the Fury in high school and haven’t been back since.

Faulkner’s dead, of course, but his copyrights live on, owned now by Faulkner Literary Rights, LLC (though how it came to own Faulkner’s intellectual property is not terribly well understood). Heirs are often much more aggressive in exploiting and enforcing copyrights than the artists themselves.* It’s not as though artists don’t exploit and defend their own creations, but they choose different fights. They naturally have a different point of view because their relationship with their own creations is different, and, honestly, unknowable to anyone else, often even their children.

* You might have noticed, for example, an explosion of licensed Dr. Seuss goods, including some pretty wretched movies, after the good doctor’s death. This doesn’t bode very well for Bill Watterson.

This lawsuit is easily one of the most universally derided lawsuits of recent memory. Heck, even the folks at Copyright Alliance (about as pro-rights-holders as you’ll find) thought the lawsuit lacked common sense. Underneath this universal derision was the anxiety about the act of quoting. If you can’t quote two sentences, what can you quote?

Don’t Trifle with Trifles

The natural tendency among the critics was to focus on a doctrine called “de minimis,” which derives from a Latin maxim meaning “the law does not concern itself with trifles.” In copyright law, this means that too little of the copyrighted work was taken to be actionable.

But the doctrine is more fraught than you might guess. It is possible to infringe copyright by taking a very small, but very important, part of a copyrighted work. In Bridgeport Music, Inc. v. UMG Recordings, Inc., the Sixth Circuit Court of Appeals affirmed a jury verdict of copyright infringement, when pretty much all that was taken was “Bow wow wow, yippee yo, yippie yea” (and a couple minor elements). If you know the underlying song (warning: serious 80’s flashback, of the colorful variety, complete with a video arcade) at all, you’d know that refrain, even though it’s not really the song’s hook.

There are, in fact, three different ways de minimis might apply to copyright law: (1) the infringement itself is too small to bother with (as with photographing your children next to a public sculpture), (2) the amount taken is too small to be considered original, and (3) too little was taken for there to be substantial similarity. The de minimis argument being made here was the third type.

Who is to say, then, whether “The past is never dead. It’s not even past,” is too small an amount to constitute copyright infringement? The answer is: a jury, because determining substantial similarity is a jury’s job, and the court was apparently (but not explicitly) reluctant to interfere with that.*

* Oh, please, who am I kidding? I think the court could have found a lack of substantial similarity as a matter of law. The test is whether the small portion is qualitatively important to the copyrighted work, which was at least arguably the case for “Atomic Dog.” It not arguably the case for Requiem for a Nun. The quote in question is witty, but it’s only become important to the novel after the fact, precisely because it gets quoted so much. Why didn’t the court follow this sort of analysis? Because the defendants didn’t invite it to. They argued de minimis as a general defense, not as a species of substantial similarity, and the court wasn’t willing to go so far as to hold that nine words cannot be infringed.

(Bite) Size Matters

The court clearly felt that fair use was a better avenue for dismissal. You might go and review the four fair-use factors. That’s because size matters in fair-use, too.

The analysis is pretty straightforward from there, even for fair use. The quote was integrated into a different creative work. No one can quite say what a “transformative use” is, but surely this is an example of it. The Faulkner novel is undoubtedly creative, but the transformational nature of the use neutralizes this. Only a tiny portion of the work is taken.* Finally, there’s no conceivable way using the quote in the movie affects the market for the novel (at least not in a bad way).**

* The Faulkner estate tried to argue that the quote might be small, but it was mighty because of how it captures the novel’s main theme about how the past never goes away. The court wasn’t having it, though. The theme is exceedingly important to the novel, but the quote, as a collection of words, isn’t.

** The Faulkner estate asked to be allowed to submit evidence that it routinely licenses Faulkner quotes. This argument is the last refuge of the scoundrel. The court immediately perceived the circularity of the argument: what good would such evidence do when there’s clearly no need to license such small portions of novels.

It’s in the Way that You Use It

If there’s a lesson here, it’s that when you’re quoting a small portion of a larger work, you need to think either in terms of substantial similarity or fair use. There are a lot of myths out there about how much you can borrow from another work before it’s infringing—e.g., three bars of music—but that’s not how courts analyze it at all. It’s not only how little you borrow, but how you use it. Wood Allen rightly felt secure with his use of the Faulkner quote not merely because it was short, but because of the way he used it.

A more interesting case would be whether just using this quote, say in a compilation of interesting and famous quotations, is a fair use, simply because it’s so short. What do you think?

One final thing, because it’s awesome, is this quote from the court’s opinion:

The court has viewed Woody Allen’s movie, Midnight in 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.

Maybe the court would agree with me about The Sound and the Fury at least! Too bad the Sharknado reference won’t age well, but at least we know the judge must have an active Twitter account!

On a less happy note: is it really safe to start quoting Faulkner now, even if you quote him in the most obviously fair use way possible? Sony managed to get out of the case fairly quickly, but it still must have paid more in legal fees than most of us can spare. What might be more important in the long run is whether Sony can get its legal fees. Otherwise, the rest of us will have to take a license, not to avoid liability but to avoid the legal fees.

Thanks for reading!

Rick Sanders

Rick is an intellectual-property litigator. He handles lawsuits, arbitrations, emergency injunctions and temporary restraining orders, opposition and cancellation proceedings, uniform dispute resolution proceedings (UDRPs), pre-litigation counseling, litigation avoidance, and other disputes, relating to copyrights, trademarks, trade secrets, domain names, technology and intellectual-property licenses, and various privacy rights. He has taught Copyright Law at Vanderbilt University Law School. He co-founded Aaron | Sanders with Tara Aaron-Stelluto in 2011.