1709 Blog: for all the copyright community

Sunday, 28 October 2012

Can you be sued over a properly acknowledged literary quote?


Well, the answer seems to be 'yes'.
As reported by The Hollywood Reporter, this is indeed what has happened to Sony, which has been sued (along with a group of unnamed film exhibitors) by the owners of the rights to the literary works of The Sound and the Fury author, William Faulkner
The lawsuit, which was filed on 25 October last in the US District Court for the Northern District of Mississippi, concerns unauthorised use of a quote from Faulkner's Requiem for a Nun in Woody Allen's 2011 film Midnight in Paris
As cinema-loving readers will know, the film follows the adventures of nostalgic Hollywood screenwriter Gil Pender (Owen Wilson) who, while on holiday in Paris with his fiancée and her family, finds himself going back to the 1920s every day at midnight, thus meeting the great artistic characters of that time, including Ernest Hemingway, Francis Scott Fitzgerald and his wife Zelda, Picasso, Dalì, and Gertrude Stein.
In describing his experiences, Gil speaks the following lines: "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."
"Copyright is never dead.
Especially if it's not even past."
Apparently neither Sony nor its co-defendants had sought prior permission to use Faulkner's original quote ("The past is never dead. It's not even past."), so now the Faulkner estate is seeking relief (as well as damages) under the Copyright Act and the Lanham Act. The plaintiff claims that use of both the quote and Faulkner's name in the film "is likely to cause confusion, to cause mistake, and/or to deceive the [film's] viewers as to a perceived affilitation, connection or association between William Faulkner and his works, on the one hand, and Sony, on the other hand", and also "to cause confusion, to cause mistake, and/or to deceive the [film's] viewers as to the origin, sponsorship, or approval of Sony's goods, services or commercial activity by William Faulkner and/or his written works."
As observed by Courthouse News Service (which usually refrains from commenting on litigation in the story in which the lawsuit is reported) "at risk of offending the shade, or estate, of Charles Dickens: This is a far, far weirder thing than Sony has ever done.
A Sony spokesperson said: “This is a frivolous lawsuit and we are confident we will prevail in defending it. There is no question this brief reference (10 words) to a quote from a public speech Faulkner gave constitutes fair use and any claim to the contrary is without merit."
Also this blogger believes that, in relation to the copyright infringement claim, use of Faulkner's quote is quite a clear case of fair use, also because, contrary to what seems now the position under EU copyright lawthe actual length of the protected extract taken has still some relevance under US law. However, in copyright-times like these you never know what is going to happen. What seems certain is that this is a case worth fighting, as also suggested by Techdirt.

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