I am “guilty” of having quoted William Faulkner in a piece of commentary shortly before his estate filed two lawsuits alleging copyright and trademark infringement against high profile defendants for what I would consider fair use of the Nobel Laureate’s work. One suit is against Sony Pictures and movie distributors over a paraphrased Faulkner quote (8-9 words) in Woody Allen’s movie, Midnight in Paris. The second suit is against The Washington Post and defense contractor Northrop Grumman over an advertisement that featured a fourteen-word Faulkner nugget. In both cases, the defendants attributed the work to Faulkner. The issue is that they did not pay royalties (to people who can’t take credit for those words either) for quoting 8-14 words that Faulkner strung together decades ago.
In part, the complaints allege that these defendants’ actions would be “likely to cause and/or has caused confusion, mistake, and/or deception” to consumers, as though your typical Washington Post reader or Midnight in Paris viewer is stupid enough to think the ghost of William Faulkner, who has been dead for five decades, is endorsing these products today.
These lawsuits, particularly the one related to Midnight in Paris, show a complete disregard for the creative process and misunderstand the fair use and de minimus use exceptions to copyright and trademark law in the United States. The purpose of copyright law should be to encourage creativity, not to enrich a deceased author’s descendants half a century later. Creative works build off of the past; even Shakespeare borrowed from others. The inclusion of short quotes in novels, scripts, articles, and even blog posts is incredibly common and often falls into the aforementioned exceptions to the “exclusive rights” granted to holders of copyrights and trademarks.
The underlying facts of the lawsuit related to Midnight in Paris do not create any confusion and most definitely fall into fair use: The movie may have a commercial purpose, but (1) it only used a tiny portion of Faulkner’s copyrighted novel (Requiem for a Nun), (2) the quote is a very small part of the movie, and (3) the effect of the use could not possibly have a negative impact on the sales of Faulkner’s work. In fact, the mention of Faulkner in a mainstream movie is free advertising. Quite frankly, Faulkner’s lawyers should be sanctioned for filing such a frivolous suit.
The lawsuit against The Washington Post and Northrop Grumman, while meritless in my opinion, probably isn’t frivolous and so might prove to be a little more difficult for the Post and Northrop Grumman to defend. As Max, a lawyer familiar with intellectual property law and author of Litigation and Trial, explains (because I asked for his thoughts):
In terms of a copyright infringement, the advertisement will have a harder time than the movie proving the fair use defense, because the advertisement really is centered around the Faulkner quote, while the quote in the movie is merely a line. Similarly, under the Lanham Act (trademark infringement) claim, I suppose the Faulkner estate has a weak argument that, given the prominence Faulkner’s name, there is some “likelihood of confusion” (the primary legal test) among the public.
That said, courts have taken a dim view of efforts by artist’s estates to maintain total control over use of their decedent’s names and works. Hemingway’s estate tried and lost when one of Hemingway’s close friends wrote a memoir that quoted him liberally, “Papa Hemingway.” Estate of Hemingway v. Random House, Inc., 244 N.E.2d 250, 260 (N.Y. 1968). Even living authors don’t have total control over the use of their works: famously reclusive and litigious J.D. Salinger tried to enjoin publication of an unauthorized biography that quoted liberally from his private letters (which Salinger had furiously tried to copyright once he learned of the biographer’s methods) and lost. Salinger v. Random House, Inc., 650 F. Supp. 413 (S.D.N.Y. 1986). [Edit from Max: To clarify what I meant, Salinger lost initially, then won on appeal; the appellate court agreed “fair use” generally permits biographers to quote portions of writer’s works, but held that unpublished materials deserved heightened protection.]
The worst-case scenario, in my opinion, involves some court giving credence to the Faulkner estate’s shockingly narrow and chilling view of copyright law. It is particularly concerning that Faulkner’s lawsuits seek to narrow exceptions to intellectual property rights in a way that could restrict not only the creative work of wealthy “deep pockets,” like Sony, but also “empty pockets,” like authors and bloggers who use short quotes in their works.
What is the likelihood that a copyright holder would go after a poor blogger? It’s a real risk, as anyone who has received a cease and desist letter or a complaint will say. Do we want to make the law such that quoting 8-14 words in a small portion of a much larger work is potentially copyright and trademark infringement? That’s what the ghost of Faulkner (per his estate) is trying to do.
I wonder whether the Faulkner estate has considered how their greedy actions could backfire. Their litigious nature could chill future references to the author, thus ending the free advertising and possibly hastening the speed with which the public will lose interest in his work. Who reads Faulkner anymore anyway?
I will squelch my urge to sum up my thoughts on these lawsuits with a quote from Faulkner (although I will happily attribute fake quotes to his ghost). Instead, I will end with a quote from Kurt Vonnegut, Jr., who uttered the following sentence in an entirely different context, but I think the plain meaning of these words is an appropriate response to the Faulkner estate’s frivolous actions: “Literature should not disappear up its own asshole, so to speak.”
*Formerly titled, The Ghost of William Faulkner: “Quote Me At Your Own Risk”
*See the follow post for updates in the Faulkner estate litigation: “Manners” for Authors (On Being Quoted and an Update on the Faulkner Lawsuits).
UPDATE (7/19/13): U.S. District Judge Michael P. Mills has DISMISSED the Faulkner Estate’s lawsuit against Sony Pictures! This is very good news.