On July 18, 2013, the Federal District Court for the Northern District of Mississippi dismissed a suit filed by the literary estate of William Faulkner which claimed that Woody Allen’s Midnight in Paris had infringed the copyright in Faulkner’s Requiem for a Nun. (The case is Faulkner Literary Rights, LLC v. Sony Pictures Classics, Inc.)
In Woody Allen’s script as filmed, the character played by Owen Wilson travels back in time to the post-Great-War era and meets several literary and artistic luminaries. His wife, played by Rachel McAdams, understandably questions not only his credibility but also his sanity, when he tries more than once to explain how these experiences have affected him. In one such scene he quotes the Requiem: “The past is not dead,” he says, “Actually, it’s not even past.” He then cites to Faulkner, says that he agrees with the sentiment, and adds that he met Faulkner at a dinner party, a by-the-way remark which does help his cause with his wife.
That quotation (called “the Quote” in the complaint) recently came into national prominence because Barack Obama recited it in “A More Perfect Union,” his landmark 2008 speech on racism in America. The subsequent flood of attention given to the quotation and to the Requiem (hitherto not one of Faulkner’s best known works) is certainly the reason why Faulkner Literary Rights, LLC (FLR) felt compelled to sue in this case, as they stated in their complaint: “Sony’s infringement, left unabated, will adversely impact [FLR’s] ability to exploit for its financial benefit its property rights in Requiem for a Nun and the Quote.” In other words, if FLR were to let Allen and Sony off the hook now, in the future FLR would have a very hard time stopping anyone else from using the Quote without paying a license fee.
Like a good chess player, FLR perceived that Sony would assert the Fair Use defense against the copyright infringement claim: a use of a copyrighted work which would normally be an infringement because it is unauthorized, but because the nature and context of the use is “fair,” the charge of infringement cannot stand. In anticipation of that defense, FLR asserted that “the Quote describes the essence of Requiem,” which tells the story of a woman who tries to avoid responsibility for her part in the death of her child. This was FLR’s shrewdest argument because FLR knew that Fair Use is measured by a qualitative standard as well as a quantitative one. In other words, FLR knew that it could never win with the quantitative test: FLR would never persuade the Court that Allen had taken too large an amount of the Requiem for his movie, because the Quote is only nine words (Allen added “Actually”) out of the approximately seventy thousand that make up the Requiem. So, accordingly, FLR knew it would only defeat the Fair Use defense if it persuaded the Court that Allen had taken the heart out of the Requiem without FLR’s permission.
Although that was FLR’s best shot, it did not hit the target. The Court took the argument that the Quote states the theme of the novel at face value, returned to the base principal that copyright protects the expression of an idea and not the idea itself (i.e., just because Shakespeare wrote Othello, that does not prevent others from writing about people who get carried away by jealousy over imagined adultery by a spouse), and said “the court’s inquiry, therefore, is centered on the qualitative importance of the theme’s expression, not of the theme itself” (the italics are the Court’s). By this standard, the Court found at least five passages in Requiem which express that theme, concluded that the Quote itself only expresses a fragment of the full theme, and carefully distinguished this conclusion from the fame that has greeted the Quote since Obama’s 2008 speech: “Qualitative importance to society of a nine-word quote is not the same as qualitative importance to the originating work as a whole.”
FLR did not persuade the Court on the other aspects of the Fair Use defense either. The Court found that the unauthorized use was fair in this case because it was transformative; that is, Midnight in Paris added new meaning and expression to the Quote because the story of the film and the context in which the Quote appeared differ so significantly from Requiem. Knowing the financial motive behind FLR’s suit, the Court speculated that “the film indeed helped the plaintiff and the market value of Requiem if it had any effect at all” on the market for Faulkner’s works.
This opinion should come as a relief to artists who want to be able to pay homage to other artists in their works because, to paraphrase Canadian novelist Robertson Davies, works of art are often largely about other works of art. Whether Allen (a fairly well-read guy, I would guess) knew the Requiem before or after Obama’s speech is beside the point, because the point is that though he took the Quote without permission, he gave, through Owen Wilson’s speech, full credit to Faulkner for having penned those words. In other words, he made a literary allusion, and as the Court said, with admirable concision, “Allusion is not synonymous with affiliation, nor with appropriation.” Though we might say “thank goodness” for those words from the Court, we should not thereby disparage FLR or say that it was being overly litigious in bringing this action, because FLR was only doing its job to protect the literary estate of William Faulkner for future exploitation through publication and licensing. But we might wonder if this case would have been filed if Faulkner were still alive. One legal doctrine mentioned by the Court in passing is de minimus non curat lex (“the law does not care about trifles”). Would Faulkner have cared about this? It is hard to imagine that he would not have appreciated the nod from Allen. Whether William Faulkner would have liked Midnight in Paris is of course an entirely different question!