Artists and their estates have been known to sue whenever they believe their work has been unlawfully used without permission. Considering how ambiguous the law is on the matter this should come as no surprise. Woody Allen’s highest grossing film to date, ‘Midnight in Paris’ has become the latest feature to face misappropriation allegations. Faulkner Literary Rights, the company that controls the rights of William Faulkner’s work has filed suit against Sony Pictures Classics on the grounds of copyright infringement, commercial appropriation and violation of the Lanham Act. They claim Allen, by paraphrasing a passage from Faulkner’s book ‘Requiem for a Nun’, has ‘deceived the film’s viewers as to a perceived affiliation, connection or association’ between the author and the movie.
The original passage reads, “The past is never dead. It’s not even past” whereas Owen Wilson’s character in the movie can be heard saying, “The past is not dead! Actually is not even past.” He then goes on to say, “You know who said that? Faulkner, and he was right. And I met him too, I ran into him at a dinner party.” It is to be noted, however, that acknowledging the source does not act as substitute for obtaining permission when one is indeed required.
Let’s begin by analyzing the copyright allegation. The Copyright Act of 1976 seeks to protect any ‘original work of authorship’ that is finalized in a fixed form of expression, the rationale behind it is to encourage artists and scientist to create by ensuring they are decently paid. Although one of the most valuable rights conferred by this protection is the right to reproduce or to authorize others to reproduce their work, an important limitation exists in section 107 called the doctrine of ‘fair use’. In accordance with this doctrine, you may use portions of a work (including quotes) without having to license or pay for it for purposes of commentary, criticism or parody, news reporting and scholarly reports. Given the many contexts on which fair use can be claimed, what it entails is judged on a case-by-case basis. Section 107 further provides four factors that act as guidelines when determining whether a particular use is permissible or not, namely: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect upon the potential market or value of the original work. The latter is often seen as the most important factor.
Despite the short length of the infringing quote, there is no established number of words that can be safely copied. Lee Caplin, who represents the estate, argues that despite being only 10 words long, the snippet summarizes the plot of the film and it is one of the most famous quotes in American literature.
Allen’s use, however, is likely within the boundaries of fair use. Faulkner is only one of countless characters that are referred to in the movie, such as F. Scott Fitzgerald, Ernest Hemingway, Pablo Picasso and Salvador Dali. Also, although a commercial enterprise, no reasonable person would buy the DVD of Midnight in Paris as a substitute for the book where the original quote can be found. Thus, despite claims to the contrary, it appears there is no actual harm to the value of the work from which to base a copyright infringement allegation.
The trademark count based on the Lanham Act, fails for similar reasons. A trademark is any work, name, slogan or symbol used in commerce that identifies a particular product. Signature phrases and saying have become increasingly important in brand-building and marketing. Movie lines such as ‘show me the money’ and ‘hasta la vista, baby’ are quickly associated in the public’s mind with Jerry Maguire and The Terminator, respectively. Much like copyrights, legal rights to trademarks arise automatically without the need of formalities, though registration carries with it many benefits and it is thus highly recommended. Hence, it is arguable that if the quote in question is so famous so as to be instantly associated with William Faulkner, it should be treated as a trademark even if it has not been registered yet. The main test used when evaluating trademark violations is a likelihood of confusion test. Yet, the values behind such protection are threefold: to protect the public from confusion, to protect the owners from others unfairly reaping into the goodwill of their brand, and to foster competition. It is thus evident that the problem is still the same for those representing the estate of Faulkner, no movie viewer can be said to have been confused by Allen’s use of the phrase; no competitor has been harmed, especially considering that the movie and the book are not competing against each other; and lastly, the goodwill of the quote has not been abused or affected by the movie.
Most artists readily admit to have been ‘inspired’ by the work of previous authors, singers and poets. Francis Coppola is reported to have based his film ‘Apocalypse Now’ on Joseph Conrad’s novella ‘Heart of Darkness’. William Faulkner himself named his book ‘The Sound and the Fury’ after a passage in Macbeth, and another of his books, ‘Absalom’, takes his name from the biblical book of Samuel. Furthermore, the passage used in Midnight in Paris has been used many times before. Ben Folds used it in his song ‘Smoke’ and the President of the United States in one his 2008 campaign speeches, to name a few. Let us hope that the courts dealing with this matter will take this occasion to remind the right holders that the reason behind intellectual property protection is to foster creativity, and not to create monopolies on the use of 10 famous words.