In the movie, the main character played by Owen Wilson says: “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 nine-word sentence was extracted from William Faulkner’s “Requiem for a Nun”. More precisely, Faulkner wrote: “The past is never dead. It’s not even past.”
His estate, FAULKNER LITERARY RIGHTS, LLC, argued that the paraphrase had been used without proper license and without suitable credit thus constituting copyright infringement and brought a lawsuit against all persons involved in the film, first of all against the producer SONY PICTURES CLASSIC INC.
Fortunately for SONY and rather rationally for most of IP lawyers, Judge Michael P. Mills dismissed the case last July 18, 2013, not without a high sense of humour and irony (1).
In the very first paragraph of his decision, the judge made a clear comment about what he thought of the case: “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”.
Afterwards, quoting the maxim “de minimis non curat lex” and following a thorough comparison of the two works before him, especially by utilizing the fair use factors, Judge Mills concluded that no substantial similarity existed between the copyrighted work and the allegedly infringing work. Here are some of his reasons:
- “The speaker, time, place, and purpose of the quote in these two works are diametrically dissimilar”,
- “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”,
- The allegedly infringing work is highly transformative as compared to the copyrighted work,
- “It is difficult to fathom that Sony somehow sought some substantial commercial benefit by infringing on copyrighted material for no more than eight seconds in a ninety minute film”,
- “The quote in dispute […] is a fragment of the [novel] idea’s expression”,
- “Qualitative importance to society of a nine-word quote is not the same as qualitative importance to the originating work as a whole”
- “The quote at issue is of miniscule quantitative importance to the work as a whole”
There is little doubt that the same decision would have prevailed in France since it seems in accordance with the Berne Convention (2).
That’s why the lawsuit brought by Faulkner’s estate remains difficult to understand or justify since it looks that Woody Allen’s movie really was paying a tribute to Faulkner’s work, and, as Judge Mills put it: “How Hollywood’s flattering and artful use of literary allusion is a point of litigation, not celebration, is beyond this court’s comprehension”…
(1) Northern District of Mississippi – Case No. 3:12cv100, FAULKNER LITERARY RIGHTS, LLC (PLAINTIFF) V. SONY PICTURES CLASSICS INC. and JOHN DOE PERSONS OR ENTITIES (DEFENDANTS). Decision may be found here.
(2) Berne Convention for the Protection of Literary and Artistic Works, Article 10 (1): “It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.”