Dr. Trademark Dear Doc:

I know you’ve explained the legal concept of “fair use” before, but I have a question about that. Does it infringe an author’s copyright in a book to paraphrase one sentence from the book in a movie, if you give credit to the author, or is it fair use?

Absolom Absolom,  Mississippi

Dear AbAb:

Funny you would ask that question, since it is a paraphrase of one asked by United States District Judge Michael P. Mills in his recent decision in Faulkner Literary Rights LLC v. Sony.  In that suit, the heirs of William Faulkner sued Sony Pictures, which distributed Woody Allen’s movie Midnight in Paris. In the movie, Owen Wilson’s character paraphrases Faulkner’s novel, Requiem for a Nun, when he 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.”

The actual sentences from the novel are, “The past is never dead. It’s not even past.”

Given the obvious and serious legal issues at stake, the Faulkner heirs sued for violation of the Lanham Act and the Copyright Act. On a motion by Sony to dismiss the case, the judge read the book, watched the movie, and expressed his gratitude that he had not been asked to compare The Sound and the Fury with Sharknado.

The legal question, however, turned on what the Court saw as, “(1) whether the affirmative defense raised to the copyright infringement claim can properly be considered on a motion to dismiss; (2) whether the use in Midnight is justified under a de minimis copyright analysis; (3) if the alleged infringement is not de minimis, whether or not it constitutes fair use; (4) whether Faulkner’s Lanham Act claim has merit.”

Judge Mills, in his 17 page memorandum opinion, gives a textbook lesson in fair use analysis. It all really comes down in the end, however, to his belief that Woody Allen has created a, “transmogrification in medium” by taking a sentence from the novel and using it in a different medium (film) and for a different literary purpose. According to the Merriam-Webster Dictionary, “transmogrify” means, “to change or alter greatly and often with grotesque or humorous effect.” Ahhhh… so THAT’s what Woody Allen did!

So you see, Ab, it’s fair to misquote a famous author of serious literature, if you do it in film, with comic effect. So I guess, we can try it in a law firm newsletter, too… As Woody Allen once said, “I believe there is something out there watching us. Unfortunately, it’s the government.” (But then again, that’s a real quote.)

If you need to paraphrase a famous person, it would be good to check with the attorneys at LW&H – they’re not quite famous, but they do know a lot about copyright law.

Until next month…

The “Doc”

— Lawrence A. Husick, Esq.