In a pair of lawsuits filed about a week ago, Faulkner Literary Rights, LLC (“Faulkner Literary”), the owner of the literary rights to the late William Faulkner’s works, sued Sony Picture Classics (“Sony”), as well as Northrop Grumman Corporation (“Northrop Grumman”) and Washington Post Company (“Washington Post”) in the federal district court for the district of Mississippi.  In both cases, Faulkner Literary brought claims for copyright infringement, unfair competition under the Lanham Act and state law claims for quotations from Faulkner’s works.

In the first lawsuit, Faulkner Literary claims that Woody Allen’s latest hit, Midnight in Paris uses, without authorization, a quote from the Faulkner novel Requiem for a Nun.  The line in Requiem for a Nun—a book approximately 250 pages long—is “The past is never dead.  It’s not even the past.”  In Midnight in Paris, the lead character, Gil Pender, played by Owen Wilson, is able to time travel between current day Paris and Paris of the 1920’s.  At one point he exclaims: “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.”  Midnight in Paris lasts 94 minutes, and the accused dialogue only a few seconds.

In the second lawsuit, Faulkner Literary claims that Northrup Gruman took out a full-page advertisement in the July 4th issue of the Washington Post, which included a quote from a 1956 essay: “We must be free not because we claim freedom, but because we practice it.”  Faulkner’s essay, On Fear: The South in Labor, appeared in Harper’s Magazine and was written in response to the South’s reaction to public school integration.

Both cases, should present very interesting issues, should they ultimately be tried on the merits.  Although a copyright infringement analysis typically focuses on whether the two works are substantially similar, here there is no real question that either of the accused works would be substantially similar to the original works.  Some courts and one of the main copyright law treatises (Nimmer) endorse a “fragmented literal similarity” analysis: basically, a comparison of whether an accused work copies, verbatim, parts of the original work.  For example, in one case, a court held that a defendant’s song’s use of just the words “Bow wow wow, yippie yo, yippie yea,” along with the use of the word “dog,” which were also in the plaintiff’s song (with no other similarities alleged), was sufficient for copyright infringement.  Other courts and the other main commentator (Patry) have found that the fragmented literal similarity is not a proper test—preferring a qualitative test comparing the two works.

Likewise, regardless of the appropriate test for copyright infringement, both cases are likely to focus on issues of fair use—both for the copyright and the Lanham Act claims.  For example,       according to an article in The New York Times, Sony issued a statement that included the following: “There is no question this brief reference (10 words) to a quote from a public speech Faulkner gave constitutes fair use and any claim to the contrary is without merit.”  While fair use is a complicated issue—and one too long for a detailed discussion in a post like this—generally speaking, there are four factors to that analysis: whether the new work is transformative, the nature of the copyrighted work, the amount of the copyrighted work at issue, and the effect of the new work on the market.  Obviously, the third and fourth factors are likely to come into play here, as the amount of Faulkner’s  works used is quantitatively minimal, and, at least at first blush, it does not seem that either would negatively impact the market for Faulkner’s works (if either would impact the market at all).   Both defendants are likely to argue that—as far as the first factor is concerned—that their works were transformative: the new works were not literary works, and certainly did not share many of the copyrightable characteristics of the original works.

The fair use and fragmented literal similarity doctrines are notoriously vague and courts have long struggled with consistent application.  Stay tuned to see Faulkner’s home state’s take on the issue.