He lives in Los Angeles now, where he produces television and feature films. He recently worked with James Franco on an adaptation of Faulkner's novel As I Lay Dying. And he also coproduced a teleplay written by David Milch (creator of the HBO hit Deadwood) that was based on Light in August, which HBO has purchased an option to license. But Caplin is not naive about the law: He is a graduate of the University of Virginia Law School and frequently travels back to Faulkner's hometown in Oxford, Mississippi, to teach a course on entrepreneurship for lawyers at the University of Mississippi.
According to Caplin, the Faulkner family regularly grants licenses for the use of Faulkner's works. He notes, for instance, that Ron Howard asked the estate for permission to use a quote in the pilot of his TV series Modern Family, and a license was granted. Caplin says he even gave Sony the opportunity to take a license after he saw the Woody Allen movie and realized that the quote was used, but Sony refused. "This is not about the estate withholding permission in order to get more money," he says.
Still, criticism of these cases abounds, with most of it focused on the suit against Sony. Lawyers have questioned the plaintiff's understanding of copyright law—specifically the factors that are considered by the courts when weighing whether the fair use doctrine should apply. They say, for example, the amount of the copyrighted work used is too small and insubstantial to be deemed infringement. The quotes, they add, were transformative in nature, making them prime examples of fair use. And they stress that the fair use doctrine permits courts to avoid rigid application of copyright law when it would stifle creativity.
Jonathan Stuart Pink, an intellectual property attorney at Bryan Cave, is absolutely convinced that the Faulkner estate will fail in its attempt to make a case for infringement. "Even if they can successfully argue that the material used was pivotal, they won't be able to dispute that the material was used in a transformative way," he says. "It's a different medium; it's commentary; and it's a different story," he added.
Paul Goldstein, a professor at Stanford University Law School and an expert on copyright law, agrees with this view. Speaking of the plaintiff's case, he says: "It could be tough. The defendants will probably argue the movie is a transformative work, which means fair use will apply."
But Caplin sounds undeterred. The most important factors, which include whether the copyrighted material is used for commercial purposes and how important the material is to the new work, should lead the courts to conclude that fair use does not apply, he says. The movie, he notes, is a commercial enterprise, and the line in question comes at a crucial point in the film and is used to convey a major point: "It's arguably the most important thing the actor says in the entire movie." (The plot revolves around time travel by Wilson's character, and the line refers to the ability to journey into the past.)
"I'm sure if Woody Allen thought he could have written something better," Caplin concludes, "he would have." •
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