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Oct 28 2012

Copyright and fair use

The rules about what you can legally use of other people’s creative work are not very well defined. ‘Fair use’ guidelines depend on judgments about what fraction of the work is used and whether it is being used for commercial purposes, with educational use getting more leeway, but there are no formulas that can be used and each time must be judged on a case-by-case basis.

In this blog I quote the works of other people all the time, with attribution whenever I can find the source. I try to use my best judgment of fair use in doing so. But a recent copyright claim has stunned me because if it succeeds it means that unless something is in the public domain, you would not be able to quote it or even paraphrase it.

Via Gawker I learn that the estate of William Faulkner has sued Sony pictures about a bit of dialogue in the Woody Allen film Midnight in Paris that I reviewed favorably.

In the film, the Owen Wilson character says, “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.” The original quote is from the William Faulkner story Requiem for a Nun that has a character saying, “The past is never dead. It’s not even past.” The film’s paraphrase seems fine to me. It is faithful to the original, short, and gives proper attribution, and seems to me to meet the fair use test.

But the owners of the copyright of William Faulkner’s work are incensed. Their lawsuit alleges that this use misleads people into thinking that Faulkner had some sort of affiliation with the Sony Corporation and endorsed its products and services. If the suit is taken at face value, there would be no such thing as fair use, at least when used in the commercial sphere.

An interesting side issue is that of music. As I understand it, filmmakers must get permission from copyright holders to use even a snippet of music in their films, so the case could be made that words should enjoy the same level of protection as music. I suspect that this is the argument the lawyers will make in this case.

From a purely selfish point of view, I hope the judge in the US District Court in Mississippi where the case was filed throws it out. If it is upheld, then not only will even passing references to copyrighted works in films be prohibited, it will prevent almost all commentary on people’s works, really limiting creative freedom.

However, the judge may rule narrowly, saying that commercial enterprises have less freedom to use copyrighted works and a narrower range of fair use guidelines than non-commercial uses.

9 comments

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  1. 1
    machintelligence

    What they seem to be upset about is not the eight words of Faulkner’s that were used, but that they were attributed to him. This stands the whole argument for illegal taking on it’s head.

    Or is this not a copyright violation case?

  2. 2
    Lassi Hippeläinen

    “The past is never dead. It’s not even past.”

    That is clearly ripping off the “it’s not even wrong” phrase, and without attribution. I hope the estate of Wolfgang Pauli will sue the estate of William Faulkner.

  3. 3
    Johnny Vector

    Fair use, schmair use. “Faulkner said X” is a fact, and thus not copyrightable. Unless case law has gotten even further onto the crazy train than I thought, that alone ought to be a winner. Uh-oh, I said “crazy train”. Sorry, FTB, now Ozzy Osbourne is going to sue you.

  4. 4
    Armored Scrum Object

    From what’s quoted in the article, it sounds very much like they’re either:

    a) trying to claim trademark rights on Faulkner’s name and famous quotations, or

    b) flat-out conflating copyright and trademark issues

    @Johnny Vector #2:
    That principle doesn’t really resolve much. It’s also a fact that Requiem for a Nun consists of the following words:
    [insert entire text of the novel here]

  5. 5
    Chiroptera

    Unless case law has gotten even further onto the crazy train than I thought….

    US “intellectual property” law is so messed up these days that anything is possible.

    On the other hand, this is typical “fair use” (and it may be that your “statement of fact” argument might have merit, too) that is pretty well established. Traditionally, US judges are a fairly conservative lot who tend to have a lot of respect for precedent, and unless there has been a relatively recent change to the written law, I can’t see this case succeeding. It usually takes a Supreme Court Ceremonial Deist to just up and chuck out over a century of well-established precedent.

  6. 6
    Corvus illustris

    Next: lawsuits by the executors of Pythagoras’ estate over that–you know, thing with the triangle and all the squares in it.

    Seriously: I don’t know what it would be like in physics, but I can imagine this notion pushed to its logical conclusion would require X to pay royalties for his/her use of {Y_1,…,Y_n}’s theorems in a paper proving Z.

  7. 7
    Scott

    Faulkner had some sort of affiliation with the Sony Corporation and endorsed its products and services.

    I guess the fact that he’s been rather unable to make endorsements for the last 50 years hasn’t entered into their argument.

    I wonder also if the fact that Faulkner is (was) a public and historic figure has anything to do with it.

  8. 8
    Corvus illustris

    Quotation (or plagiarism) might be hard to prove: Faulkner was a provincial writer in a provincial place in a provincial country and might never have heard of Pauli (and conversely).

  9. 9
    Isabel

    “Their lawsuit alleges that this use misleads people into thinking that Faulkner had some sort of affiliation with the Sony Corporation and endorsed its products and services. ”

    I thought you were joking. this makes little sense-how would anyone get that from the film?

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