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Saturday, November 03, 2012

"The past is never dead. It's not even past."

Hello all and a tremendous thank you to Dan and the PrawfsBlawg crew for having me this month! I'm usually thinking about patent law, but today I've got a short note on other IP...

Last week, the estate of William Faulkner filed two lawsuits over quotes from Faulkner works – one against Sony for the movie, Midnight in Paris, featuring a misquote of the above quotation from Faulkner's novel, Requiem for a Nun, the other against the Washington Post and Northrop Grumman for an ad featuring a quote from a Harper’s piece on civil rights. The complaints can be found here and here. Both suits allege three causes of action: copyright infringement, trademark infringement and misappropriation for commercial advantage of Faulkner’s likeness and image. I’m guessing that the suits spark a little surprise and outrage in most folks, folks who feel like this shouldn’t be actionable copyright or trademark infringement because the use seems like a fair (and quite common) one. And I believe these mildly outraged folks would be right—both copyright and trademark fair use doctrines appear to protect this sort of use. We might give Faulkner his due on the misappropriation count, however—after all, the movie and ad are clearly commercial endeavors. Yet without delving too deeply into right of publicity torts, it seems reasonable that an incidental use in works of entertainment like a movie does not trigger liability. The ad may be a more difficult case because it’s not an entertaining work of fiction.

This is really interesting to Faulkner (and Woody Allen) fans. But an IP fan might have a couple more questions.

If everyone but the Faulkner estate thinks this case is a slam-dunk loser, why file it? And why pick these as your first suits ever in defending the estate’s intellectual property? One hypothesis: These suits are a shot across the bow to moviemakers, ad men and other creative types who want to quote (or misquote) Faulkner (a suggestion made by BU's BC's Dave Olson here) without getting the estate's permission. 

Another hypothesis: Assume the misappropriation claim with respect to the Northrop Grumman ad has a chance (however slim) of winning for the estate. Perhaps buttressing the state tort claim with two federal infringement claims frames the case as one of intellectual property rights and, in doing so, legitimizes and strengthens the state claim. Having a conversation about the quotes as protected expression or as protected marks (however weak those claims may be) may set up the misappropriation conversation more favorably for Faulkner than if it stood alone. The movie case (and others in the future) have to be filed to keep the momentum going—building a case for respect for their IP rights, whatever they may be.

As an aside, the estate appears recently to have licensed a quote to the television show, Modern Family. This is a question I usually ask my students. Should the fact that some people get and pay for permission inform our decision on whether those who do not seek permission and/or do not pay for similar uses are using fairly? For example, Weird Al usually gets permission for his songs even though they seem like fair uses after Campbell v. Acuff-Rose and when Lady Gaga would not grant permission, he created a parody of her song anyway, relying on fair use.

Looking forward to a great month here!

Posted by Amelia Rinehart on November 3, 2012 at 07:37 PM in Culture, Intellectual Property | Permalink

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The cases don't even get to fair use: they lose on substantial similarity. Indeed, they may lose on substantial similarity on a motion to dismiss. Looking at the complaints and the Mayo Mallette website, my impression is that this is a general litigation firm that is badly out of its depth in copyright. Targeting three repeat IP litigants for the initial suits strikes me as supremely bad strategy. In light of the likely award of attorneys fees against the Estate, the defendants have every incentive to fight and they know it.

Posted by: James Grimmelmann | Nov 4, 2012 12:32:31 AM

James, I agree that there are lots of problems for plaintiffs with the cases, including liability as well as any fair use arguments the defendants may have. My initial impression, and I certainly could be wrong, was that the firm was local counsel, whose copyright expertise may not matter much at this stage. A different legal representative is quoted in the NYT and other media reports. That at least had me wondering, given the estate's resources and those of the defendants, who, as you note, are repeat IP litigants, why file these at all? Maybe it's the optimist in me, but it strikes me more as weird strategy (which certainly could be bad strategy as you note) than reckless.

Posted by: Amelia Rinehart | Nov 4, 2012 10:33:55 AM

Do you mean Lee Caplin? He's a movie producer who also manages the Faulkner literary estate; it appears he's involved in the case on the client side, rather than the outside counsel side. (There's an ambiguity in the word "represent" here.) Per PACER, the only counsel of record are Mayo Mallette.

Posted by: James Grimmelmann | Nov 4, 2012 10:58:42 AM

Dave Olson teaches at BC, not BU.

Posted by: anon | Nov 4, 2012 11:08:12 AM

Thank you, anon! Apologies to Prof. Olson and Boston College fans everywhere for the inexcusable confusion (edited above). (Next time, more proofreading...)

Posted by: Amelia Rinehart | Nov 4, 2012 3:56:17 PM

Addressing your last paragraph, it seems to me that a lot of people pay for licenses when they don't need to (looking at the movie studios, here), but that doesn't mean that the law should change to make that the new normal. I know of newspapers that will happily license de minimis or even public domain content for a fee, but the existence of a potential market doesn't itself justify expanding the scope of what is copyrightable. I think the same is true with fair use, though it's of course more complicated.

I like the Bill Graham Archives distinction between traditional and transformational markets, where in the latter case the existence of an established market is less important. That said, I think it's more useful to think of transformative use as being the x axis of a graph, with the Origin being the completely non-transformative use (the base reproduction right) and the extent of derivation extending to infinity. At some point DW is the end of the derivative work right; everything between O and DW is the traditional market, and everything to the right is transformative. If you make the Y axis the likelihood that a use is fair, the graph should go up sharply after you cross DW. (NB: I have no doubt this concept has been used before, but I have also never seen it so I don't know whom, if anyone, I should credit—I'd appreciate if someone pointed me to such a thing!)

As to Weird Al, I'm a big fan of fair use, but I wonder if his work would really qualify if it were tested. In some cases, such as "Perform This Way," the derivative is clearly ridiculing the original by playfully mocking the singer (though oddly defending her at the same time), so I can see how it might be defensible as a parody. But I also wonder what readers think about Judge Posner's Parody/Burlesque distinction in this context. Since Weird Al's practice is to re-word the entire song and make it as close as possible to the original in every other way--including style, orchestration, etc.--it seems to me it may not be sufficiently parodic or transformational to be called fair. I don't, for example, feel a pressing need to purchase "Born This Way," despite (I admit it) liking the song, because the Weird Al rendition is a sufficient substitute. So I think Weird Al songs might fall somewhere to the left of the Derivative Work line in my hypothetical graph.

Posted by: Eric Harbeson | Nov 4, 2012 7:06:13 PM

I think some of you miss the point of what Amelia is getting at. She seems to be pointing out that this is a loser case and speculating as to why are they filing it. She seems, to me, to have a perfectly plausible explanation. one would have to assume the estate are not dummies and have some reason for what seems like an unwinable action, even accounting for the fact that the MS lawyers are probably not the best copyright lawyers they could hire.

Posted by: Holmes Barbados | Nov 14, 2012 10:20:42 AM

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