Show Some Southern Hospitality, Mr. Faulkner

With all the negative press that surrounds southern states, in particular Mississippi, it’s nice when Mississippi gets something right. Mississippi got it right last week by dismissing the Faulkner Literary Rights v. Sony Pictures case.

While the state of Mississippi grows world class talent (B.B. King, Elvis, John Grisham, Jim Henson and Oprah – just to name a few), it unfortunately does not always have the opportunity to hear cases dealing with copyright law or entertainment law issues. Most of those cases are either heard in New York or California because, even with the globalization of the entertainment field, those places are still where a great deal of business is being done. Therefore, jurisdiction to hear those cases is proper. With all that being said, you can only imagine how many backflips my inner-intellectual property diva did when she heard there was a copyright lawsuit filed this past October in Mississippi.

The case was by the estate that handles the literary rights for one of the greatest American authors to come from Mississippi, William Faulkner, against the beast that is Sony Pictures via the film Midnight in Paris directed by Woody Allen. The Faulkner group claimed copyright infringement because the main character in Midnight in Paris quoted from the William Faulkner book Requiem for a Nun without paying a licensing fee. Sony Pictures claimed the affirmative defense of Fair Use. This past week, Chief Justice Michael Mills issued an opinion dismissing the case, finding in favor of Sony’s defense of Fair Use and offering a reminder about southern graciousness.

Being an advocate for creator’s rights, I initially leaned more in favor of Faulkner for several reasons. First, having not read Requiem for a Nun I ignorantly thought that the quote was an exact quote taken from the book. As the opinion pointed out, it was not the exact quote from the book. Rather, it was merely paraphrased by Allen’s main character in the movie. Second, my gut reaction wondered what analysis did the Sony Pictures talented attorneys take part in when deciding what should be licensed and what should not. Or, was any analysis done? Finally, with Sony Pictures being a big company shouldn’t they have just bitten the bullet and licensed the quote? For those reasons, I was initially a little more than skeptical.

After conducting my own fair use analysis, I have to say the finding of Fair Use was correct and that Mississippi reached the right conclusion. The court analyzed the four (4) factors to decide whether the use in the film falls under the doctrine of Fair Use and is thus not an infringement on copyright. For more thoughts on Fair Use visit my earlier posts titled Fair Use and Disney and Imagine Lennon Endorsing a Business.

The opinion analyzed all four (4) factors, but I will not restate what was so eloquently and succinctly stated in the opinion. The Fair Use factor I found most convincing towards Fair Use was the factor dealing with Purpose and Character of the Use. Sony Pictures successfully argued that the two works were different related to the purpose and character of use. The opinion states that the “speaker, time, place and purpose of the quote in these two works are diametrically dissimilar.” The quote used within the context of the film was “highly distinguishable” from how it was used originally by Faulkner. The court also based its decision on transformation because the quote was stated in a film and not re-printed in a print medium such as a book or newspaper. Meaning, the court found relevance in that the new use was in a completely different medium than the original work. Finally, as it relates to the character of the use, the court found that the paraphrased quote only made up eight (8) seconds of the ninety (90) minute film. That equates to .148% of the film.

To my filmmaking readers, don’t get too terribly excited and start quoting from books anytime the whim hits you. While this is definitely good news and it is refreshing to have a Fair Use case in the Fifth Circuit dealing with these types of issues and filmmaking, a place of caution should still be exercised. Fair Use is a fact specific determination. Meaning, given a different set of facts, different amount used, different mediums, a different quote – the case may not have turned out favorably for Sony Pictures.

Putting together your film in a place of caution is also advised because, as the opinion correctly pointed out, Fair Use is an affirmative defense. Let me say it again – a DEFENSE. Meaning – you are in court, being sued, have lawyered up, the other side has lawyered up and your film is perhaps facing a delayed release because of a dispute over licensing. Being a big company, Sony Pictures can take those risks every now and then. Sony Pictures has incredible copyright attorneys on staff who more than likely conducted a risk analysis prior to the film being released and perhaps budgeted for this type of fallout. They more than likely disclosed that risk analysis to their insurance carrier prior to release. They can stand to litigate a smallish copyright claim now and then. Of course, this is all speculation on my part about what Sony Pictures did or did not do.

When determining rather to license or to dance with the doctrine of Fair Use it is important to go through the type of thorough analysis, either on your own or with counsel, that the court did in this case (to read the entire opinion go here) and in cases similar to this one. This will fall under assessing the risk to the independent filmmaker. As an independent filmmaker can you financially take that kind of hit and fund litigation to support your claim of Fair Use? Or, should you just bite the bullet and license any way?

In this particular instance the court got it right. The opinion did not conclude, though, without a reminder that sometimes a thank you goes a long way. To quote from the opinion, “How Hollywood’s flattering and artful use of literary allusion is a point of litigation, not celebration, is beyond this court’s comprehension.” At least to a Mississippi court, Mr. Faulkner’s estate would have been better served by showing a little southern hospitality and saying thank you.

What do you think? Did the court in Mississippi get it right? For my attorney friends reading, what did you think of the opinion and what struck you the most? Take part in the comments below and Stay Tuned In!

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7 thoughts on “Show Some Southern Hospitality, Mr. Faulkner

  1. RyAnne

    Thanks for sending me your blog update. I was pleased to read the opinion in this case. I understand that Loeb & Loeb from New York was the primary counsel but that Butler Snow was the local counsel.

    Chief Judge Mills has a well-written opinion.

    Warm regards.

    Jim Rosenblatt Dean Mississippi College School of Law (MC Law) “Let Justice Roll”

    • Yes, from my understanding Butler Snow was the local counsel. I’m glad you enjoyed the opinion too. Thank you for reading and commenting, Dean Rosenblatt!

  2. I thought this case was as unfounded as the one against Dan Brown. And I agree with you–better to err on the side of caution if you don’t have a team of lawyers and resources for defense. Copyright is a murky area. Early drafts of my novel included song lyrics but the final version just refers to the songs, as titles are not (usually) protected. I don’t understand these kinds of accusations; the references help keep the original works alive and clearly credit the creator.

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