Sony Wins "Midnight in Paris" Lawsuit, Inadvertently Proves My Case About Copyright Duration

Midnight-in-Paris"The court has viewed Woody Allen’s movie, 'Midnight in Paris,' read the book, 'Requiem for a Nun,' and is thankful that the parties did not ask the court to compare 'The Sound and The Fury' with 'Sharknado.'" - District Court Judge Michael P. Mills

*****

Last October, William Faulkner's estate sued Sony Pictures Classics, the distributor of the hit Woody Allen film Midnight in Paris, claiming that a line used by Owen Wilson's character in the film was pulled straight from Faulkner's 1950 novel Requiem for a Nun without permission from the estate.  Such a use, the estate argued, constituted both copyright and trademark infringement.

Just for comparison's sake, here's the line from the book: "The past is never dead. It's not even past."

And here's the line from the film, said by Owen Wilson's character Gil Pender: "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."

When I heard about the lawsuit, I rolled my eyes.  "This is exactly the kind of frivolous lawsuit that makes people hate lawyers," I groused to my wife.  The line was so minimal and seemed like a clear-cut case of fair use.  The suit didn't seem like a credible attempt to protect Faulkner's legacy; it looked like a cynical ploy designed to cash in on a box-office hit.  Judge Mills, as evidenced by the above quote, agreed.  In an opinion issued yesterday, he dismissed the Faulkner case against Sony, finding that film's use of the Faulkner quote fell within the fair use exception to copyright infringement.

But the content of the opinion interests me less than what this case means to copyright policy.  Because whether Judge Mills intended it or not, the dismissal speaks volumes about a problem with the way this country shields copyright holders from piracy.  Namely, that copyrights are allowed to live for too long and that results in too many lawsuits.

Back in April, I wrote this Sherlock Holmes piece discussing why the current scheme of copyright duration should be changed to better serve the current copyright landscape. Right now, any work of art fixed in a tangible medium is protected by U.S. Copyright Law for the life of the author plus 70 years.  I argued that allowing copyrights to last for so long actually stifles creativity and innovation in the following ways:

  1. Artists are less incentivized to create new works because of the looming spectre of legal action
  2. Owners of profitable copyrights like Sherlock are less incentivized to create new works of art as long as they can continue to profit from those copyrights
  3. Copyright owners like the Faulkner estate are incentivized to pursue legal action against even the most minimal use of their copyright because the length of the copyright's life acts as a mandate to keep the work protected at all costs

And that's exactly what happened here.  Under our current copyright law, Requiem for a Nun is still protected 62 years after publishing and 50 years after the death of the novel's author.  It will continue to be protected until 2032.  This permits the descendants of the author to pursue all uses of that work anytime they see green and to concoct unreasonable arguments in defense of that green (the Faulkner estate, as part of its now dismissed trademark claim, argued that the use of William Faulkner's name in the film is likely to deceive the audience into believing that an affiliation exists between Faulkner and Sony).  And while the verdict in this case was proper, it won't be the last time this happens.

A shorter copyright duration is better because it allows the author and his immediate family to profit from his creation, but it also devalues the property after the author's death by coming into the public domain sooner.  And that's a good thing.  If Faulkner is no longer profitable, then that frees up people to use his characters in new and interesting ways, while also incentivizing the estate to create something new.  Someone argued with me once, claiming that letting the work into the public domain would open it to bastardization, copying, and retread.   But I fail to see how that's a bad thing.  If a filmmaker wants to stage a remake of Sherlock Holmes starring Justin Bieber as Sherlock and Chester Cheetah as Watson, well sure that will probably suck big time, but that doesn't diminish Conan Doyle's original writings.  Those remain untouched and intact.  And anyway, the integrity and profitability of a work are not often related.  If they were, the Broccolis would never have greenlit a James Bond movie where Denise Richards played a nuclear scientist.

The purpose of copyright protection isn't to provide a golden parachute for the author and his beneficiaries until the end of time.  It's mean to foster originality and ingenuity for the betterment of society.  Hell, even the head of the Copyright Office, Maria Pallante, suggests shortening the duration of copyright to life of the author plus 50 years.

The point is, until we revamp our copyright law to stop favoring the corporate copyright holders, we're going to continue seeing lawsuits like Faulkner v. Sony any time a large copyright owner sees a potential conflict with its interest.  When I look at Judge Mills' decision, I don't see a single judge smacking a plaintiff for filing a frivolous lawsuit.  I see an indictment of a system that allows the suit to be brought in the first place.

Greg Kanaan

The [Legal] Artist, Boston, MA, USA