Literary legend William Faulkner was known for spectacular writing. His sentences were often very long indeed. So, perhaps it’s ironic that a brief Faulkner quotation – a single line -- from his work Requiem for a Nun was at the center of a federal copyright lawsuit, namely, "The past is not dead. Actually it’s not even past."
In Woody Allen's motion picture, Midnight in Paris, several literary lights of the 1920s appeared as characters including Gertrude Stein, Ernest Hemingway, F. Scott Fitzgerald, and Faulkner.
Faulkner Literary Rights LLC, owner of copyrights of Faulkner sued. The defendants filed a motion to dismiss the case.
The case raises a question of interest: namely, is some unauthorized copying of copyrighted works so minimal that the copying is permitted without even having to undertake the more rigorous statutory-based four-factor fair use defense analysis? In other words, if the de minimis standard could be invoked more easily instead of being a very rare copyright bird, courts could declare the unauthorized copying as legal -- and bypass the nuanced (albeit uncertain) weighing of the four fair use factors.
In considering the motion picture company's motion to dismiss the case, Judge Michael P. Mills, Chief Judge of the federal court for the District of Mississippi (not far from the location of Faulkner's fictional Yoknapatawpha County) considered whether the de minimis doctrine and fair use are separate analyses. Instead of choosing one or the other, the opinion suggests that the two doctrines are related.
Why should anyone other than fair use obsessives care? Because in this era of unauthorized repurposing, reusing, and remixing other people's content, the more that the federal courts find ways of permitting unauthorized uses, the clearer the rules of the road will become in favor of free use.
In dismissing Faulkner's claim, the court said, "No substantial similarity exists between the copyrighted work and the allegedly infringing work."
The court also said that it "is highly doubtful that any relevant markets have been harmed by the use in Midnight. How Hollywood's flattering and artful use of literary allusion is a point of litigation, not celebration, is beyond this court's comprehension. The court, in its appreciation for both William Faulkner as well as the homage paid him in Woody Allen's film, is more likely to suppose that the film indeed helped the plaintiff and the market value of Requiem if it had any effect at all." If so, the phrase no good deed goes unpunished comes to mind.