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.