“The past is never dead. It’s not even in the past.” Well, in legal terms, a cinematic citation of that famous line from author William Faulkner is now a dead claim for copyright infringement or violation of the Lanham Act. That’s what a U.S. District Court in Mississippi has decided, ruling the 2011 film Midnight in Paris, written and directed by Woody Allen, properly gave a nod to one of America’s literary lights by incorporating one of his memorable quotes.
Faulkner — a Nobel Laureate and author of canon-changing books such as The Sound and the Fury, As I Lay Dying and Light in August — wrote the disputed quote for his 1951 novel Requiem for a Nun. Gil Scott, a protagonist in Allen’s contemporary movie, finds himself traveling back in time to Paris of the 1920s where he socializes with writing giants like F. Scott Fitzgerald and Ernest Hemmingway. And while at dinner in one scene, set in the present, Allen’s protagonist, portrayed by actor Owen Wilson, 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.”
Faulkner Literary Rights LLC, which claimed that the Sony-released film infringed due to a misquote, sued. It asserted violation: of its exclusive rights to reproduction and distribution of Faulkner’s works under the 1976 Copyright Act; of Sec. 43(a) of the Lanham Act; and commercial misappropriation of the late writer’s name and oeuvre. Sony prevailed on its motion to dismiss for failure to state a claim, arguing use of one line in the film constituted a de minimis copying and evoking a fair-use defense.
To prove infringement, the requirements include: ownership of a valid copyright and actionable copying, that is reproducing constituent elements that may be protected. The court also examined if there was “substantial similarity” between the copyrighted work and the claimed infringement, using four fair-use factors to determine if it was de minimis or more significant: (1) purpose and character of use; (2) nature of the copyrighted work; (3) amount and substantiality of the disputed portion against the protected work as a whole; and (4) effect of use on potential market for or value of the copyrighted work.
The judge deemed Sony’s use highly transformative and dissimilar from the original, noting the disputed line was employed in comedic fashion for eight seconds in the movie versus the somber way it appears in the novel; the court saw the quote in use as having minuscule quantitative importance to the Faulkner work as a whole and no evidence of market harm was found; no substantial similarity was seen to exist between protected material and the claimed infringement.
The court also found the plaintiff’s Lanham Act claim failed, with the judge saying the film’s reference to Faulkner and the paraphrasing of his line could not lead to audience confusion about any affiliation between the writer, his works and Sony. Midnight in Paris premiered at the Cannes Film Festival in 2011 and went on to garner several Academy Award nominations, winning for Best Original Screenplay. It also won Best Screenplay at the Golden Globe Awards.