copyright The estate of William Faulkner is furious.  In the past month it has filed two copyright infringement lawsuits, one against Sony Picture Classics and another against Northrop Grumman Corporation and the Washington Post Company.  In the Sony case, the Faulkner Estate claims that Sony infringed Faulkner’s copyright in the famous phrase from Requiem for a Nun, “The past is never dead.   It’s not even the past.”  when the lead character in Woody Allen’s film, “Midnight in Paris.” exclaims, “The past is not dead!  Actually, it’s not even past.”  In the case of the suit against Grumman and the Washington Post, the Faulkner estate claims that it printed without the estate’s permission, Faulkner’s phrase, “We must be free not because we claim freedom, but because we practice it,” in a full page advertisement paid for by Grumman.  The offending quote was from  Faulkner’s essay, On Fear: the South in Labor.  Defendants in both lawsuits will raise the “fair use” defense to blunt The Faulkner estate’s attack.  So let’s take a brief look at the “fair use” doctrine.

“Fair use” is a copyright doctrine that permits one to use copyrighted material without seeking permission from the copyright owners if it falls within certain categories: criticism, news reporting, teaching, scholarship, or research.  The problem is that the copyright statute fails to give specific guidance on how to identify fair use other than to list factors to be considered:

(1) the purpose and character of the use, including whether such use is of a 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; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

As a result, the law of fair use is one of the most vague and unpredictable areas of copyright law.  Let’s take a peek at the arguments that the lawyers will likely make in the Faulkner estate case against Sony. The Sony lawyers’ principal argument will be that the amount and substantiality of the Faulkner quote is insignificant. The Faulkner estate lawyers, on the other hand, will argue that first, Midnight in Paris does not arguably fall within the statutory categories of criticism, news reporting, teaching, scholarship, or research and, second, despite the short length of the quote, Sony is using it for commercial purposes. The Sony lawyers, of course, scoff at the suggestion, asserting that use of the Faulkner quote will have absolutely no commercial impact upon the market value of the copyrighted work, which is more than 60 years old. See the article in for a first-hand account of the war of words.  The arguments raised by lawyers in the Grumman case will be similar. Should the cases actually go to trial, an unlikely scenario, copyright experts everywhere will be closely watching.

Adam G. Garson, Esq.