Almost a year ago, we noted (You’re Getting Sued for What? An E&O Odyssey (Pt 9)) that the owners of the late author William Faulkner’s intellectual property rights had sued Sony Pictures Classics for copyright infringement based on the inclusion of a line in the 2011 movie Midnight in Paris (“The past is not dead.  Actually, it’s not even past.”) which echoed a line (“The past is never dead.  It’s not even past.”) from Faulkner’s 1951 novel Requiem for a Nun. The case was noteworthy for any number of reasons, not least the evidently low threshold for “infringement” which can prompt some claims. In July 2013, the US District Court for the Northern District of Mississippi granted the defendant’s motion to dismiss the claim – a decision which does (or should) accord with a common sense approach to copyright law. That being said, while the court got to the correct result, it strikes me that they got there via the wrong reasons. (The decision also briefly considered, and rejected, trade-mark and “commercial misappropriation” claims – I am ignoring those for purposes of this post.)

I concede at the outset that the issue of “substantiality” in copyright law is complicated: it is difficult to draw bright-line rules which prescribe when a unit of “expression” is too small or short to warrant copyright protection. But, surely, a nine-word passage from a 250+ page novel falls on the wrong side of that line, wherever it is drawn. Courts (including Canadian courts) have historically stated that short phrases or statements are insufficiently “original” to warrant copyright protection – but then have also extended protection to some vanishingly small bits of expression.  Additionally, rather than saying that something is “too short” to garner protection, the conclusion is couched in the copyright-ese of “originality” to provide some analytical wiggle-room for situations where the qualitative importance of a single sentence or set of sentences outweighs the evident quantitative value (as might occur with poetry, for example). And that’s generally fine, but as I noted in this post at IP Osgoode (in the context of talking about copyright in titles) short bits of expression can be “so granular (and potentially consist of words that are simply component parts of speech and writing) that according protection to them would radically expand the field of protected works and correspondingly drastically reduce the ambit of the public domain”. According copyright protection to bits of expression is dangerous for creators: extend the protection too far and new creations of works suddenly becomes risky and correspondingly expensive.

The decision in Faulkner starts off promisingly: it seems that the court will dismiss the claim on the basis of the legal doctrine of de minimis non curat lex (“the law cares not for trifles”), which, in United States law, “is part of the established background of legal principles against which all enactments are adopted, and which all enactments (absent contrary indication) are deemed to accept”. Unfortunately, because of a lack of direct precedent in the Fifth Circuit about the application of the de minimis defence to assertions of copyright infringement, the court drops the de minimis analysis and subsumes it within the consideration of a broader “fair use” analysis. (Spoiler: paraphrasing nine words constitutes “fair use”.)

Without getting too het up about it, it’s ridiculous that a paraphrasing of nine words results in a court indulging in analytical expositions like the following:

The speaker, time, place, and purpose of the quote in these two works are diametrically dissimilar. Here, a weighty and somber admonition in a serious piece of literature set in the Deep South has been lifted to present day Paris, where a disgruntled fiancé, Gil, uses the phrase to bolster his cited precedent (that of Hemingway and Fitzgerald) in a comedic domestic argument with Inez. Moreover, the assertion that the past is not dead also bears literal meaning in Gil’s life, in which he transports to the 1920’s during the year 2011. It should go without saying that this use is highly distinguishable from an attorney imploring someone to accept responsibility for her  past, a past which, to some extent, inculpates her for the death of her child.Characters in both works use the quote for antithetical purposes of persuasion. On one hand is a serious attempt to save someone from the death penalty, and on the other is a fiancé trying to get a leg up in a fleeting domestic dispute.

To echo something from our initial post on this case: oy vey. In any event, to summarize the court’s analysis on fair use (Canadian readers are cautioned that the US fair use analysis is different from the Canadian fair dealing analysis):

  • Purpose and Character of the Use: transformative use + “transmogrification in medium” + miniscule amount use = fair use
  • Nature of Copyright Work: neutral
  • Substantiality of Portion Used: “both the qualitative and quantitative analyses to tip in favor of fair use … no substantial similarity exists”
  • Effect of Use on Market for Original Work: “highly doubtful that any relevant markets have been harmed by the use”

Conclusion: factors tip in favour of finding of fair use.

In the end, the court in Faulkner achieved the correct and fair result – regrettably, it took more legal effort than was necessary to get there. Producer’s counsel and insurer’s counsel should, to borrow a phrase, govern themselves accordingly.