Friday, July 19, 2013

The past is never dead, but it is de minimis

Faulkner Literary Rights, LLC v. Sony Pictures Classics Inc., No. 12-cv-00100 (N.D. Miss. July 18, 2013)

As someone said on Facebook, in an ideal world this would’ve been a two-page order with Rule 11 sanctions attached. Instead, we get a muddle saying that using a paraphrased Faulkner quote in a movie is a de minimis fair use, or maybe it’s just de minimis.  Here’s the court’s summary: “At issue in this case is whether a single line from a full-length novel singly paraphrased and attributed to the original author in a full-length Hollywood film can be considered a copyright infringement. In this case, it cannot.”  (Emphasis added.  How about in no imaginable case could it be?)  Also the trust’s Lanham Act claim based on the same facts failed, and here the court didn’t really bother to give a reason other than incredulity, raising the question: is it better that in copyright we have an elaborate schema for rejecting a terrible claim like this, but only after an extended analysis; or that in trademark we have a set of doctrines muddled enough that it’s hard to pick a clear doctrinal reason to reject a terrible claim like this even though it’s obvious that the trust has to lose, so it’s simpler just to say this is dumb and dismiss it?

(Bonus irony: of course, the opinion quotes a lot more of the Faulkner work at issue than the movie did, though a lot less than a standard college essay should’ve.  One hopes the trust isn’t going to sue the government for its judicial taking.  Of course, in all life + 50 jurisdictions, Faulkner’s works just entered the public domain, so plenty of people around the world can read the whole novel at will.  But in America, the past is never dead—it’s not even public domain.) 

In Faulkner’s Requiem for a Nun, a character says, “The past is never dead. It’s not even past.” In Midnight in Paris, a character says, “The past is not dead. Actually, it’s not even past. You know who said that? Faulkner, and he was right. I met him too. I ran into him at a dinner party.”  

Midnight in Paris is a whimsical Woody Allen film (is there any other kind?) involving time travel by a “Hollywood screenwriter with literary aspirations” who meets Cole Porter, Zelda Fitzgerald, and F. Scott Fitzgerald.  According to the court, the film has both a plot and a theme of longing for the past, with a character who coins the term, “Golden Age Thinking, the erroneous notion that a different time period is better than the one one’s living in. Ya know, it’s a flaw in the romantic imagination of those people who find it difficult to cope with the present.”  The first lines of the screenwriter’s novel are, “‘Out of the Past’ was the name of the store, and its products consisted of memories. What was prosaic and even vulgar to one generation had been transmuted by the
mere passing of years to a status at once magical and also camp.” The screenwriter’s friend says, “The past has always had a great charisma for me,” and they debate which era was the best.  The quote at issue comes in context of the screenwriter’s accusation that his girlfriend is having an affair; he got the idea from Hemingway, Fitzgerald, Gertrude Stein and Salvador Dali, “a notion Inez ridicules because they are all dead.”  He responds with the quote in suit.

Requiem for a Nun is part of Faulkner’s Yoknapatawpha cycle; Sony called it “relatively obscure,” but the court explicitly disagreed, because “[n]othing in the canon is obscure.”  Requiem is a cross between a novel and a three-act play.  Searching to help a nanny sentenced to death for the murder of a child, her defense attorney visits the child’s mother, who is “not without fault” in the death.  The mother “resists and distances herself from her past, stating that she is now Mrs. Gowan Stevens, not Temple Drake. Gavin Stevens [the attorney] retorts, ‘The past is never dead. It’s not even past.’” The novel has other references to the past, including Gavin Stevens’s statement to Gowan that “There’s no such thing as past either” and Gavin’s description of the past as a promissory note:

It was as though she realised for the first time that you – everyone – must, or anyway may have to, pay for your past; the past is something like a promissory note with a trick clause in it which, as long as nothing goes wrong, can be manumitted in an orderly manner, but which fate or luck or chance, can foreclose on you without warning.

The court decided the case on a motion to dismiss, but, since Sony didn’t contest any of the minimal facts alleged in the complaint, the decision would be the same on summary judgment.  (You will see below that this means the judge opines on the state of the copyright licensing world via plausibility.  If we have to have Iqbal/Twombly, then certainly copyright defendants shouldn’t be exempt from pro-defense bias.  But I think a better explanation of the outcome here is that Campbell can’t possibly mean what it says about requiring defendants who make commercial uses to present evidence on factor 4 to win, even though that was the basis for the remand in Campbell itself, because sometimes finding fair use on a motion to dismiss is appropriate.  Compare Brownmark v. Comedy Partners, also sketchy on this point and also correctly decided.)

The court first discussed Sony’s de minimis defense.  Substantial similarity is measured by considering the qualitative and quantitative significance of the copied portion in relation to the plaintiff’s work as a whole, which “mirrors the third factor of the fair use defense.” (It can’t really “mirror” it, or the two inquiries are duplicative.  Uses of an entire work can be fair.  And something that’s noninfringing isn’t necessarily a “fair” use—it may not be a “use” at all.  I could get behind the idea that there is some threshold beyond which only factor 3 matters and no consideration of the other factors is required—but that is to say, there is a de minimis doctrine separate from the multifactor fair use test.)  The parties agreed that the de minimis doctrine was separate from the affirmative defense of fair use, though the Fifth Circuit hadn’t ruled on the issue.  Here, the court considered the two analyses “fundamentally related,” with the former “wholly encompassed” within fair use.  Thus, it used the fair use factors “in making a determination on the de minimis and substantial similarity issues.”  (Emphasis added.)

A claim can be dismissed if a successful affirmative defense appears on the face of the pleadings.  But that didn’t matter anyway because “the court addresses the affirmative defense but disposes of its ruling on separate grounds.” 

Comment: As I read this, the court is saying that it is really ruling on the de minimis issue, which is part of the prima facie case of infringement, via the fair use factors.  The reason for this tapdance is that many courts say, without explaining why, that a de minimis use is one that’s not recognizable.  But the film attributed the quote to Faulkner, making this use recognizable, and it’s ridiculous to have a standard that any attributed use, however minimal, is infringing.  Back when courts didn’t think copyright owners would sue over sentence-long quotes, the recognizability standard didn’t do much damage, but it does now.  Then the question is what might be de minimis despite being recognizable, and the court is pulling in the fair use factors to make that determination.  But if it’s still a de minimis test rather than a variant of fair use—which it should be, and which it must be if we were really serious about the procedural difference between the prima facie case and affirmative defenses—then why the fair use factors other than factor 3 should be used is somewhat unclear.  A better rule would be that simple quotes, of the kind one would find in a review or yearbook collection, are de minimis, full stop.  The court gets there using fair use factors by fiating a result on factor 4, which confirms again that fair use is an awkward fit when all the defendant did was quote a line from a book.

Okay, fair use: the use was transformative because

[t]he speaker, time, place, and purpose of the quote in these two works are diametrically dissimilar. Here, a weighty and somber admonition in a serious piece of literature set in the Deep South has been lifted to present day Paris, where a disgruntled fiancĂ©, Gil, uses the phrase to bolster his cited precedent (that of Hemingway and Fitzgerald) in a comedic domestic argument with Inez. Moreover, the assertion that the past is not dead also bears literal meaning in Gil’s life, in which he transports to the 1920’s during the year 2011. It should go without saying that this use is highly distinguishable from an attorney imploring someone to accept responsibility for her past, a past which, to some extent, inculpates her for the death of her child.

The characters used the quote for “antithetical” purposes of persuasion.  One was “a serious attempt to save someone from the death penalty,” the other was “a fiancĂ© trying to get a leg up in a fleeting domestic dispute.”  This was undoubtedly transformative.  It was also relevant that Requiem was “a serious piece of literature lifted for use in a speaking part in a movie comedy, as opposed to a printed portion of a novel printed in a newspaper, or a song’s melody sampled in another song.”  The transformation of medium favored fair use.  (Newspapers can quote novels—they’re generally called “reviews”—and I’m pretty sure that Campbell involved some melody; I had thought that meaning rather than medium was significant.  Belt-and-suspenders distinctions are too often used to strangle a later litigant.)

Anyway, the changes in context and medium “coupled with the miniscule amount borrowed tip the scales in such heavy favor of transformative use that it diminishes the significance of considerations such as commercial use that would tip to the detriment of fair use.”  It wasn’t plausible that Sony “somehow sought some substantial commercial benefit by infringing on copyrighted material for no more than eight seconds in a ninety minute film,” since the 8 second clip wasn’t “a thematic catharsis or apex in plot” for either work. (And if it had been, it still would’ve been okay!)

Nature of the work: not helpful in transformative use cases.  Campbell’s statement to this effect was about a parody, but it also applied to “analogous” uses like this one; this factor was neutral.

Substantiality of the portion used: Faulkner argued that the quote was qualitatively important, containing “the essence of Requiem: there is no such thing as past, whether for Jefferson or Temple Drake. The events of the past (for better or worse) cannot be discarded and forgotten; the history of mankind just as the personal history of Temple Drake shapes and forms human relations and conduct.”  A critic has deemed the quote “central to the entire novel” – the “mainspring of both theme and narrative,” and the quote’s fame showed its unique expressiveness.  (The court considered the critic’s reaction and President Obama’s use of the quote in a speech to be outside the pleadings, but considering them would make no difference.)  As the court pointed out, however, this was an argument about the qualitative importance of the theme, “not the qualitative importance of the quote itself, however eloquent in conveying this theme the quote may be.”  Copyright doesn’t protect ideas.  The court focused on the qualitative importance of the theme’s expression.  But the quote constituted only a small portion of the expression of the idea in the novel, including the quotes above and also these:

“Because suddenly it could be as if it never been, never happened. You know: somebody – Hemingway, wasn’t it? – wrote a book about how it had never actually happened to a g- woman, if she just refused to accept it, no matter who remembered, bragged…. Then Gowan came to Paris that winter and we were married… and if that couldn’t fumigate an American past, what else this side of heaven could you hope for to remove stink?”  

… “Perhaps she was too busy between the three of them to be careful enough:… the doom, the fate, the past;…”  

The quote at issue was a fragment of the idea’s expression.  “[H]ad Sony copied half of these quotes, Faulkner might have a stronger argument under this element.”

Moreover, the 9-word quote’s “subsequent fame as a succinct expression of the theme” didn’t make it qualitatively important to the originating work; that was a matter of qualitative importance to society.  And of course the quantitative importance was miniscule.  This favored fair use, and “no substantial similarity exists between the copyrighted work and the allegedly infringing work.”

Despite having found no substantial similarity and thus no infringement in the first place, the court still considered factor 4.  Now, Campbell says that a proponent of fair use “would have difficulty carrying the burden of demonstrating fair use without favorable evidence about relevant markets” and that “a silent record on an important factor bearing on fair use disentitled the proponent of the defense….”  But here, despite the silence of the [nonexistent] record, “the court uses these factors to guide its determination under the de minimis and substantial similarity analyses” (emphasis added) so it’s ok.  And anyway factor 4 is a “non-issue” in light of the other factors and the court’s opinion about the market:

The court is highly doubtful that any relevant markets have been harmed by the use in Midnight. How Hollywood’s flattering and artful use of literary allusion is a point of litigation, not celebration, is beyond this court’s comprehension. The court, in its appreciation for both William Faulkner as well as the homage paid him in Woody Allen’s film, is more likely to suppose that the film indeed helped the plaintiff and the market value of Requiem if it had any effect at all. In fact, Faulkner has not pled any injury except for a statutory entitlement to an award. Such an entitlement does not hold up on a de minimis infraction, however. Had Faulkner pointed to compelling evidence that the markets for Requiem suffered a substantial harm as a result of the use in Midnight, this harm would be so anomalous that it would hardly undercut Sony’s justification in presuming fair use.

Faulkner argued that it would submit evidence of its licensing agreements, showing harm, but a copyright owner isn’t entitled to license fees for fair uses.

Faulkner also wanted discovery on Sony’s good faith, but that was irrelevant here. Sony attributed the quote, and the complaint didn’t allege facts from which bad faith could reasonably be inferred.  And even if Sony acted in bad faith, “the only relevant fair use factor … would be under the fourth factor regarding relevant markets, which, again, would not undercut the stark balance in favor of Sony.”  And even a bad faith attempt to injure Faulkner couldn’t help because “Sony would have had a good faith basis for believing it need not obtain permission for its use of the quote. That is, a bad faith effort to use a copyright holder’s work under the fair use factors would be a contrived dichotomy that would be harmless when the use is so apparently fair.”

Faulkner argued that Sony licensed other material for the film, such as Cole Porter’s “Let’s Do It (Let’s Fall in Love)” and Pablo Picasso’s artwork.  But that wasn’t relevant to whether the use of Faulkner’s quote was fair [or de minimis?], and the court noted the “obvious” distinction that Porter and Picasso’s works were used in their entirety, not just a fragment. Licensing these other works was therefore irrelevant.  “[N]o substantial similarity exists between the copyrighted work and the allegedly infringing work, and Sony’s use in this matter was de minimis.”

Now for the Lanham Act claim: “The court has no doubt that the interests of Sony in First Amendment protection outweigh Faulkner’s interest in pursuing a Lanham Act claim in this case. However, the court declines to engage in a thorough analysis of this issue because a Lanham Act claim has not been established in the first place.”  The mere allegations that the film would confuse “viewers as to a perceived affiliation, connection or association between William Faulkner and his works, on the one hand, and Sony, on the other hand” and that viewers might be deceived “as to the origin, sponsorship, or approval of Sony’s goods, services, or commercial activity by William Faulkner and/or his written works” were implausible.  The only facts alleged were the two works.  Looking at both, “largely in light of the court’s copyright analysis,” “no such misappropriation can possibly be inferred.”  Literary allusion—Faulkner’s name and a short paraphrase—couldn’t possibly confuse an audience about affiliation.  “Allusion is not synonymous with affiliation, nor with appropriation.”  Anyway, the allegations were wholly conclusory and failed Iqbal/Twombly.  Sony admitted all the facts in the complaint, and still no reasonable juror could find confusion.

The court declined to exercise jurisdiction over Faulkner’s state law claim for commercial misappropriation (essentially, a right of publicity claim).


  1. I agree in principle on the poor logic of a recognizability standard for the de minimis determination, but I wonder if a hard line on recognizability wouldn’t be better than the status quo, i.e. if we could also have the flip side, that unrecognizable uses are de minimis, we could set aside Bridgeport and alleviate a ton of chilling effects in music sampling. It seems to me the tradeoff against whatever existing chilling effects remain for attributed quotes would be well worth it.

  2. But Bridgeport is a special (wrong) rule for sound recordings holding that there's no such thing as de minimis use for sound recordings at all. Fixing Bridgeport just requires having a de minimis rule for all works; it does not require that unrecognizability be the only way for a use to be de minimis.