Sound and Fury That May Signify Nothing

Lisa Shuchman

Corporate Counsel

01-01-2013

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 and another against Northrop Grumman Corporation and the Washington Post Company in federal district court in Mississippi. In the first suit, it said that Woody Allen's film Midnight in Paris used a quote from a Faulkner novel without permission. The other suit said that Northrop Grumman ran a full-page advertisement in The Washington Post that quoted a Faulkner essay—also without first obtaining permission.

Publications ranging from The Hollywood Reporter to The Christian Science Monitor and The New York Times ran somewhat incredulous stories after the lawsuits were filed, and the blogosphere was filled with comments that mocked and ridiculed the plaintiffs for bringing the cases. But intellectual property lawyers say the litigation may not be ridiculous after all, 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 Northrop Grumman will likely cite fair use as a defense, the man who represents the Faulkner estate strongly believes that these were not instances in which the doctrine applies.

"They should have asked for a license—it's that simple," says 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 Allen film in which the main character, played by Owen Wilson, misquotes one of Faulkner's most famous lines. In the film, Wilson says: "The past is not dead. Actually, it's not even past." What Faulkner wrote was: "The past is never dead. It's not even past." The famous line, which originally appeared in Faulkner's novel Requiem for a Nun, has often been quoted and misquoted by others. Even President Barack Obama used a variation of it in his 2008 speech about race in America.

Sony Pictures Classics, which released the film in 2011, 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 Northrop Grumman placed in the The Washington Post on July 4, 2011, which quoted a line of an essay Faulkner wrote for Harper's Magazine in 1956: "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 freedom and the Declaration of Independence. In addition to the newspaper, the military contractor posted the advertisement on its corporate website, the lawsuit alleges.

Caplin says that Northrop 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 says, but was a reflection on the aftermath of the U.S. Supreme Court's decision in Brown v. Board of Education.

"The use of the quote by Grumman was rather odious," Caplin argues. "The family would not have granted it a license if the company had asked." In both instances, he adds, the Faulkner family can show that the companies infringed the author's copyrights.

Asked to respond, Northrop Grumman said through a spokesman that it does not comment on litigation ­matters.

Caplin, who says he has known the Faulkner family his entire life, explains that family members asked him several years ago to become manager of the Nobel laureate's literary rights. "I grew up with them," he says. "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 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." •