We All Win When the Faulkner Estate Loses!

Faulkner CaptionThe decision in Faulkner Literary Rights LLC v. Sony Pictures Classics Inc. is here! I am pleased to announce that legal scholar Maximus Kennedy has agreed to share his thoughts on this decision with us.  For this guest post, Kennedy draws directly from his experience as an intellectual property lawyer in Mississippi and a former federal judge on the Court of Appeals for the 5th Circuit. “Maximus Kennedy” is a pseudonym, which by J.K. Rowling’s fraudulent definition of the term means nothing listed here about Kennedy’s legal experience is accurate (see my post, J.K. Rowling as “Robert Galbraith”: Is it Consumer Fraud?). Hey, if J.K. Rowling is allowed to do it for The Cuckoo’s Calling, why can’t I do it on my blog? 😉

The real author is Max, a civil litigator in Pennsylvania and New Jersey whose blog, Litigation and Trial, is one of the ABA Journal’s top 100 legal blogs. He also happens to be a member of the 5th Circuit bar (which encompasses Mississippi). Everything mentioned about Max in this paragraph is true.

You may remember that I loathe the Faulkner Estate’s efforts to narrow Fair Use under copyright law. For background on the Faulkner Estate’s legal agenda, see my previous post, When an Author Quotes You, Say “Thank You,” Not “F-You.” With this district court ruling, which Max explains below, we continue to have a strong Fair Use doctrine, even in the Northern District of Mississippi, Faulkner’s home. That’s a win for everyone who wants to be able to quote past works without having to pay a fee.

~A.M.B.

Underline

Max’s Comments on the Faulkner Lawsuit:

With several quips and a reference to Sharknado, federal judge Michael P. Mills dismissed Faulkner Literary Rights, LLC’s lawsuit in its entirety, ruling that the movie Midnight in Paris did not infringe upon the Faulkner estate’s copyright interests in Requiem for a Nun when the protagonist in Midnight paraphrased two sentences from the book.

Judge Mills’ 17-page opinion is readable, entertaining and well-worth the time for anyone interested in the “fair use” doctrine. I don’t want to rehash all of the basics of “fair use,” which you can find summarized here, but instead just want to highlight some of the interesting points from the opinion.

First, the Court took exception to Sony Pictures characterizing Requiem as being “relatively obscure”: “Nothing in the Yoknapatawpha canon is obscure. Having viewed the two works at issue in this case, the court is convinced that one is timeless, the other temporal.” Touché. Perhaps it’s not a minor point that Faulkner’s fictional Yoknapatawpha County is based on real-life Lafayette County, Mississippi, where Judge Mills’ chambers are located.

Second, the Court rejected the Faulkner estate’s argument that, although the quote was only two sentences long, the quote “describes the essence of Requiem” and so deserves more protection under copyright law than would normally be given to a two-sentence quote from a full novel. The Court agreed that the theme of Requiem was, indeed, that the past is not even past (the theme shows up several times in the book, expressed in several different ways). The problem, however, is that, under basic copyright law, “protection is given only to the expression of the idea—not the idea itself.” Mazer v. Stein, 347 U.S. 201, 217 (1954). Thus, the Court held, “Qualitative importance to society of a nine-word quote is not the same as qualitative importance to the originating work as a whole,” and so the alleged infringement really was properly analyzed as quoting two sentences from a novel, rather than as copying a novel’s complete theme.

Third, the Court noted the “transformative” nature of the quote’s use in Midnight. As the Court said, “the [quote] is a serious piece of literature lifted for use in a speaking part in a movie comedy, as opposed to a printed portion of a novel printed in a newspaper, or a song’s melody sampled in another song,” and thus there was a “transmogrification” of the quote from one medium to another. Further, the Court said, “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. The use of these nine words in Midnight undoubtedly adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” (Internal quotation omitted).

All in all, an erudite, thorough, and undeniably correct opinion. Having dug their heels this far into the mud, I can only assume the Faulkner estate will appeal to the Fifth Circuit, but, well, if they couldn’t win in the real-life Yoknapatawpha County, I doubt they can win anywhere.

13 thoughts on “We All Win When the Faulkner Estate Loses!

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  4. Yay! I’m glad we got the win vs. Faulkner this time. Although we can all appreciate having our work protected, as you’ve so eloquently stated, they take it too far. Clearly they don’t comprehend how a little freedom in copyright can go a long way for legitimizing work. I wonder if Star Wars would still be as big a deal as it is if George hadn’t been super lax about ‘infringement.’ Many credit fan films, fan art, and fan parodies as keeping the genre alive and thriving. If no one can quote your stuff doesn’t it inevitably lead to no one bothering with your stuff because they don’t want to be sued?

    Either way, I’ve appreciated reading your perspective on this and gaining an awareness of it. 🙂

    1. That’s a good question. Technically, the district court would only be “persuasive.” The Fifth Circuit packs a bigger punch and the district courts within the Fifth Circuit (Mississippi, Louisiana, and Texas) would have to follow what the appellate court does (parties can always try to distinguish the facts of their cases). If the Fifth Circuit were to narrow Fair Use, it could be a problem if plaintiffs elsewhere (authors who want people quoting them to pay a royalty) forum shop by filing their lawsuits in federal district courts within that circuit. Generally, it’s hard for plaintiffs to forum shop because they usually have to file their case where the injury occurred, but where the copyright “injury” occurred is nebulous in our modern age. It’s ridiculous that the Faulkner Literary Estate even filed in Mississippi; both parties are based in other states (Sony had filed for a change of venue, stating, “no witnesses, documents, or anything else related to this case is in Mississippi”). My guess is that they thought they’d have better odds if they filed in the real-life Yoknapatawpha County.

    1. Yes, it’s terrible. Even if people don’t want to criticize someone as beloved as Rowling, why aren’t they at least asking how her publisher could have allowed/encouraged such a scheme? I’m suspicious of every author bio that comes out of Little Brown now.

    1. Yes, this is very good news! I agree with Max that it’s unlikely the 5th Circuit will find in favor of the Faulkner Estate, but you never know. I’m keeping my fingers crossed. Considering how frivolous the allegations against Sony were (though you never know what a court will do with it, so it remains a threat), part of me thinks that the Faulkner Estate doesn’t really care whether they win or lose. I think it’s part of their marketing agenda to keep Faulkner’s name in the news more than fifty years after his death.

    1. The amazing thing to me is how many people think the fake bio is fine because it’s JK Rowling. Really, she doesn’t get special treatment because of who she is, and she should be setting a better example. I wonder whether this has become a marketing practice for her publisher (Little Brown’s Mulholland Books). It’s unethical and, as I explain in a previous post, possibly illegal.

      As for the William Faulkner Estate’s attempt to make money any way they can more than a half century after Faulkner’s death, it’s deplorable. They targeted “deep pockets” like Sony Pictures, but the narrower definition of Fair Use that they were seeking is a threat to all of us (as I explain in the post linked above, When An Author Quotes You Say “Thank You,” Not “F-You”).

      Part of me thinks that the Faulkner Estate probably doesn’t even care whether they win or lose (considering how frivolous the allegations against Sony Pictures were, but you never know what a court will do with it, so it remains a threat). They are such attention seekers that they are probably glad to just have Faulkner’s name in the press and a lawsuit is one way to do that (I talk about their attention seeking in a previous post: https://misfortuneofknowing.wordpress.com/2013/04/03/faulkners-literary-estate-works-hard-at-staying-in-the-limelight/).

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