Friday, October 26, 2012

If This Isn't Fair Use, Nothing Is

When I went to law school, my intention was to help writers, photographers, painters, and other individual artists protect themselves against the looming corporations which attempt to steal copyrights from those who create work.

Much to my surprise, I've just found a case where I would happily take on a corporation as a client.

Sony has been sued by Faulkner Literary Rights, which controls the literary material created by William Faulkner. What happened? Sony released Midnight in Paris, a delightful little film by Woody Allen. Possibly the first one I've enjoyed since Manhattan.  And what is the connection between Midnight in Paris and Faulkner? Owen Wilson quotes two short lines from Requiem for a Nun: "The past is never dead. It's not even past." Nine words and they are attributed to Faulkner in the dialog. "You know who said that? Faulkner. And I met him, too."

Section 107 of the Copyright Act of 1976 (as amended) sets out the standards for fair use:
  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for, or value of, the copyrighted work

If there was ever a clear case of fair use in copyright law, this is it. The amount taken was used in another artistic work, with attribution. The original work was a literary work and the new work was a 2 hour motion picture. The amount taken was miniscule. I see no possible effect on the potential market for or value of the original work, though I must confess I might want to read Requiem for a Nun because of it. I think the sentiment is spot on (especially as I see racism rearing its ugly head everywhere these days.)

I am happy to see that Sony is already characterizing this as frivolous. If I were counsel for Sony, I'd be demanding sanctions against the law firm. To be fair, Mississippi is not a hot-bed of copyright litigation, so it may be the law firm is simply out of it's depth. That's why lawyers are supposed to investigate their claims and research the law before filing suit.

I was once at a conference where Ralph Oman, then the Register of Copyrights, said that the office had a rule of thumb that it took 15 words before things were considered copyrightable. While a copyright covers the whole of a work and all of its parts, this is really an attempt to shut down fair use.  It is (and should be) virtually impossible to hang an infringement claim on the use of nine words from a short-story, speech, or novel. You might be able to get away with it if we were talking about haiku, I suppose, and a music publisher would be all over it if we were talking about song lyrics. But we aren't.

I'll be following the case, but I really hope that it dies a quick death.

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