Sound and Fury Over Faulkner Copyright Litigation

Lisa Shuchman

Corporate Counsel

2012-11-13 00:00:00.0

Note: This story has been updated.

There’s been a lot of sound and fury over two lawsuits alleging copyright infringement filed by the owner of the literary rights to William Faulkner’s works. 

Faulkner Literary Rights LLC filed one suit against Sony Picture Classics [PDF] and another against Northrop Grumman Corp. and the Washington Post Company [PDF] in federal court in Mississippi. In the first suit, Faulkner Literary Rights said Woody Allen’s film Midnight in Paris used a quote from the Faulkner novel Requiem for a Nun without permission. The other suit says Northrup Grumman took out a full-page advertisement in the July 4, 2011 issue of the Washington Post that included a quote from a 1956 essay by Faulkner published in Harper’s Magazine. 

Publications ranging from The Hollywood Reporter to The Christian Science Monitor and The New York Times published somewhat incredulous stories after the lawsuits were filed, and the blogosphere was filled with stories and comments that mocked and ridiculed the plaintiffs for bringing the case. 

But intellectual property lawyers say the litigation may not be so ridiculous, as some aspects of U.S. copyright law are vague. This is especially true of the “fair use” doctrine—a limitation in copyright law that allows the use of copyrighted material in certain circumstances without the copyright owner’s consent. And while Sony and Northrup Grumman will likely use fair use as a defense, the man who represents the Faulkner estate strongly believes these were not instances in which fair use applies. The Faulkner family, he says, can show that the companies infringed the author’s copyrights. 

“They should have asked for a license—it’s that simple,” said Lee Caplin, the manager and representative of Faulkner’s literary estate. “They should have known better. 

The lawsuit against Sony hinges on a quote in the film Midnight in Paris, in which the main character, played by Owen Wilson, misquotes one of Faulkner’s most famous lines: “The past is never dead. It’s not even past.” The line has often been quoted and misquoted by others: Even President Obama used a variation of it in his famous 2008 “A More Perfect Union” speech about race in America.

Sony Pictures Classics, which released the film, called the lawsuit “frivolous” and insisted in a statement that the quote in the movie constitutes fair use under copyright law. 

The other lawsuit was prompted by an advertisement [PDF] Northrop Grumman placed in the Washington Post on July 4, 2011, which quoted a line of an essay Faulkner wrote for Harper’s [PDF]: “We must be free not because we claim freedom, but because we practice it.” The advertisement also displayed a large photograph of an American flag, the company’s corporate logo, and text about the Declaration of Independence and freedom. In addition to the newspaper, the military contractor posted the advertisement on its corporate website, the lawsuit alleges.

Caplin said Northrop Grumman used the quote in a context that would confuse the public into believing there was an association between the military contractor and Faulkner. The quote, which came from an essay entitled “On Fear: The South in Labor,” was not about war, he said, but was a reflection on the aftermath of Brown v. Board of Education. 

“The use of the quote by Grumman was rather odious,” said Caplin. “The family would not have granted it a license if the company had asked.” 

Northrop Grumman said it does not comment on litigation matters.

Caplin, who says he has known the Faulkner family his entire life, told CorpCounsel.com that family members asked him several years ago to become manager of the Nobel laureate’s literary rights. “I grew up with them,” he said. “William Faulkner used to watch me play Little League.” He lives in Los Angeles now, where he produces television and feature films. (He recently worked with James Franco on a version of As I Lay Dying. And he also co-produced a teleplay of Light in August written by David Milch, creator of the HBO hit Deadwood. HBO has purchased an option to license it.) But Caplin is not naïve 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 ‘Ole Miss. (aka, the University of Mississippi). 

The Faulkner family regularly grants licenses for the use of Faulkner’s works, Caplin said, noting 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 said he even gave Sony the opportunity to take a license after he saw the Woody Allen movie and realized the quote was used, but Sony refused. “This is not about the estate withholding permission in order to get more money,” Caplin said.

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. 

But Caplin says the most important factors, which include whether the copyrighted material is used for commercial purposes and how important the copyrighted material is to the new work, should lead the courts to conclude that fair use does not apply here. The movie, he says, 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,” he said (the plot of Midnight in Paris revolves around time travel by Wilson’s character, so the line refers to the ability to journey into the past). “I’m sure if Woody Allen thought he could have written something better, he would have.” 

Many lawyers, however, don’t share Caplin’s confidence. “It could be tough,” said Paul Goldstein, a professor at Stanford University Law School and an expert on copyright law. “The defendants will probably argue the movie is a transformative work, which means fair use will apply.”

Jonathan Stuart Pink, an intellectual property attorney at Bryan Cave, is absolutely convinced 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 said. “It’s a different medium; it’s commentary; and it’s a different story,” he said. Pink wrote about the case on his blog, which focuses on copyright issues.

J. Cal Mayo Jr., the attorney representing Faulkner Literary Rights in these lawsuits, said all these matters have been considered. But he declined to comment, citing the pending litigation.

It can be argued, meanwhile, that Caplin, who can quote Faulkner on a dime and is clearly a devotee of the writer, is merely doing his job—looking out for the interests of the Faulkner estate. And it’s possible these lawsuits will ultimately surprise the skeptics. 

“Fair use is a gray area and is terribly unpredictable,” Stanford’s Goldstein said. “Copyright cases can be a real crapshoot.”