The 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.
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.