With how often William Faulkner’s name comes up on social and mainstream media these days, you’d think he were still alive. I can’t seem to go more than a few weeks without seeing a Faulkner headline, whether it’s about his estate’s frivolous attempt to make copyright law even worse or his estate’s sudden discovery of yet another “treasure trove” of the long-deceased writer’s papers.*
Apparently, last year, the executor of the estate stumbled across Faulkner’s literary papers in a family barn, and now these items, plus Faulkner’s Nobel medal (I hope it wasn’t in the barn, too!), will go on the auction block at Sotheby’s. I’m surprised no one thought to check Faulkner’s barn before. This type of “sudden discovery” within a few years of the last auction makes me wonder if the estate is simply dribbling out papers in the hopes that calling each portion a “new discovery” will bring added attention and a higher price — whatever it takes to make a buck or two (or a couple hundred thousand).
The estate has also been using meritless lawsuits to try to make a buck, claiming copyright infringement for short quotes of Faulkner’s work — the type of quoting or paraphrasing that the law typically regards as “fair use.” So far, they have sued commercial enterprises: (1) Sony for a nine-word paraphrase of Faulkner in Woody Allen’s Midnight in Paris (a frivolous lawsuit), and (2) The Washington Post and Northrop Grumman for an advertisement using a fourteen-word Faulkner quote (at most, a weak case).
I described in an earlier post, When Someone Quotes You, Say “Thank You,” Not “F-You,” why the Faulkner estate’s efforts are a threat to us all:
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.
Unfortunately, as I explained in my follow-up post, “Manners” for Authors: On Being Quoted, the lawsuit against the Post and Northrop Grumman settled early, and we’re still waiting to hear the court’s decision on Sony’s motion to dismiss.** The update from last week is that while Sony’s motion to dismiss is still pending, Sony has filed a letter brief informing the court of persuasive authority from other courts that suggests the Faulkner estate’s claims should be thrown out. Let’s hope that’s what happens — or artists of all stripes might have to start paying a toll when we quote a line or two from our favorite books, in much the same way that Warner Brothers still brings in $2 million annually from Happy Birthday To You.
Turning back to the “newly discovered” Faulkner papers for a moment, I think it’s interesting that whoever purchases those items will probably own only the physical items and not the copyright — indeed, it’s questionable whether they would even be able to publish scans of the pages of the book they own! Here are Sotheby’s terms:
We and the Consignor make no representations and warranties, express or implied, as to whether the purchaser acquires any copyrights, including but not limited to, any reproduction rights in any property.
Generally speaking, the rights will remain with the author and his/her heirs during the author’s lifetime and for 70 years after the author’s death. That’s the current law for works published today and for unpublished works. So, any unpublished Faulkner materials in the recent “treasure trove” will fall into the public domain in 19 years. For works published during Faulkner’s lifetime, the copyright extends for 95 years after initial publication. So, some of his works will go out of copyright within ten years. It can’t come fast enough.
To paraphrase Faulkner myself, because I think it’s firmly within fair use: the copyrights of an author who passed away more than fifty years ago are not dead, they’re not even past.
**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.