The US District Court for the Northern District of Mississippi summarized this case succinctly as follows:
“At issue in this case is whether a single line from a full-length novel singly paraphrased and attributed to the original author in a full-length Hollywood film can be considered a copyright infringement. In this case, it cannot.”
The Plaintiff was the literary rights agency for William Faulkner, an American writer and Nobel Prize laureate, who lived from 1897 to 1962. (While Faulkner’s work may be public domain under the “life + 50″ copyright law in Canada, such is not the case in USA with a longer copyright term.)
In 1950, Faulkner published the novel, Requiem for a Nun. As part of the story, Temple Drake’s nanny, Nancy, had been sentenced to death for the murder of Temple’s child. Nancy’s defense attorney visits Temple to ask that she plead clemency for Nancy since Temple herself was not without fault for the death of the child. Temple resists and tries to distance herself from her past, but the defense attorney retorts:
“The past is never dead. It’s not even past.”
We jump ahead to Woody Allen’s film, Midnight in Paris, first released in 2011. In this film, while on a trip to Paris with his fiancé’s family, a nostalgic screenwriter, Gil Pender, finds himself mysteriously going back to the 1920′s every day at midnight on his vacation.
While he does so, he has the opportunity to meet prominent artists of the time such as Gertrude Stein, Ernest Hemmingway, Pablo Picasso, and Faulkner.
Later in the film, Gil accuses his current day fiancé of having an affair, and when she asks where he got such an idea, he responds that he received such counsel from Hemingway, Fitzgerald, Stein and others. Of course his fiancé thinks this is ridiculous and so Gil responds:
“The past is not dead. Actually, it’s not even past. You should know who said that? Faulkner, and he was right. And I met him too. I ran into him at a dinner party.”
Sony Pictures Classics was sued by Faulkner’s representatives on various grounds including copyright infringement. Sony sought summary dismissal, and succeeded.
As usual, the Court noted that the test for substantial similarity in copyright is based both on qualitative and quantitative analysis. The Court in this case also chose to proceed with a fair use analysis while at the same time reviewing the extent of any substantial similarity, and the possibility of a de minimis defense (i.e. based on the maxim de minimis non curat lex – the law does not care for trifles).
The Plaintiff argued that while the use of the quote was not significant in terms of quantity, the infringement was qualitative, due to the central nature of the theme of the “inescapability of the past”.
But the Court found that this argument really meant that the theme of being unable to escape the past had qualitative importance, but that such qualitative importance did not apply to the quote itself, however eloquent the quote may be.
The Court reiterated the well established law that copyright protection does not extend to ideas or concepts but only to their expression, and the quote at issue constituted only a small portion of the expression of that theme throughout the novel.
The Court found that there were many other expressions of the theme in the novel which the movie did not use, and stated:
“Clearly, the quote in dispute… is a fragment of the idea’s expression… This analysis is not influenced by the quote’s subsequent fame as a succinct expression of the theme. Qualitative importance to society of a nine-word quote is not the same as qualitative importance to the originating work as a whole.”
“Moreover, 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. The court concludes that no substantial similarity exists between the copyrighted work and the allegedly infringing work.”
The Court also considered the potential commercial impact on Faulkner’s work, and noted:
“The court, in its appreciation for both William Faulkner as well as the homage paid to him in Woody Allen’s film, is more likely to suppose that the film indeed helped the plaintiff and that market value of Requiem if it had any effect at all.”
The Court ultimately found as well that the use of the quote was de minimis, i.e. the plaintiff’s claim was a “trifle”.