|Faulkner's quote as part of Northrup Grumman ad. Is it "fair use."|
That is the issue in two copyright infringement lawsuits brought by the estate of one of America's greatest authors, William Faulkner.
On the other side in one dispute are Woody Allen and Sony Pictures for the 2011 film Midnight in Paris. In the other suit, the defendant is Northrup Grumman Corp, (NGC) one of the nation's largest military contractors, and the Washington Post, which ran the NGC advertisement that is at issue.
At issue is the extent to which a single quote - even one that has fallen into the lexicon - can be the basis of a copyright infringement claim.
In general, the fair use doctrine permits use of short excerpts of copyrighted works even without the author's permission. Most frequently this comes in the form of quotes in new works, scholarly works or parody. Whether the use is for commercial purposes or not also plays into the balancing tests used by courts. But to this point, courts have not created a black line demarcation in fair use between commercial and non-commercial use.
Midnight in Paris case: At issue is a single misquote by Owen Wilson as the lead character in this Woodie Allen movie.
The premise of the movie is that while visiting Paris with his fiance, Wilson's character is transported nightly by a car into the 1920s where he meets numerous literary figures including Faulkner, Hemingway and F. Scott Fitzgerald. At one point Wilson's character states: "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 actual quote is from Faulkner's 1950 book Requiem for a Nun. "The past is never dead. It's not even the past."
The quote is perhaps the most known, and most repeated, of any from Faulkner works.
But few would think they have to get permission to use the single quote, or in this case an attributed misquote. But Faulkner Literary Rights, LLC, the family-owned LLC that controls the rights to all of Faulkner's works, differs.
Lee Caplin, who manages the literary estate, says its not a matter of money, but rather control over the literary work. Capln maintains that use in a commercial project such as Midnight in Paris requires obtaining a license, even for use of the single quote. Caplin points to Ron Howard who obtained a license for a Faulkner quote used in the initial episode of Modern Family
Sony maintains that inclusion of the quote was fair use and that the lawsuit is frivolous. Some noted legal scholars have sided with Sony, calling the Faulkner claim "overreaching." (See Huffington Post Report - click here)
An interesting note: the Estate did not attempt to sue for use of the name or purported likeness of Faulkner in the movie. Generally the right to publicity for a person's likeness dies with the person.
Northrup Grumman case: This case presents a different aspect of fair use. While the Faulkner Estate would have granted a license to Midnight in Paris, Caplin says the estate would not have granted a license to NGC for any price.
NGC ran a full page in ad in the Washington Post (see above) subtly touting by implication greater expenditures for defense. In addition to showing the American flag, the ad featured a quote from a 1956 Faulkner essay: “We must be free not because we claim freedom, but because we practice it.”
Faulkner's estate maintains that the quote is taken entirely out of context and used to support something which the Estate would not support at any price. The quote came from a 1956 Faulkner essay which appeared in Harper's. The subject was school desegregation and the 1954 Supreme Court decision in Brown v. Board of Education, not national defense.
The question in that case becomes not only one of commercial use, but also of controlling the message.
Undoubtedly seeking a home-court advantage, both lawsuits were filed in Federal Court in Oxford, Mississippi, Faulkner's hometown, where they remain pending. (Click here for report from Law.com).
SMT Note: My own take is that the use of the quote in Midnight in Paris is fair use, even though used in a commercial project. To hold otherwise would mean that every time one wants to use a quote in a play, movie or article, one would have to obtain a license. That is far too narrow an interpretation of fair use.
The Northrup Grumman case presents a different - and much closer - question. In Midnight in Paris, the quote was a single line used in an extended work. But NGC used the quote as a central feature of its ad, effectively making Faulkner's words the central message.
The Northrup Grumman case strikes me as effectively stealing Faulkner's words as its message rather than a fair use of limited words as part of a much bigger work.