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Federal Court to Faulkner Estate: Film Quotation was Fair Use, Non-Infringing. Also, Sharknado.

· July 19, 2013

The court…  is thankful that the parties did not ask the court to compare The Sound and the Fury with Sharknado.

Back in November we covered a dubious infringement suit by the estate of William Faulkner against Sony Pictures Classics, which alleged that the use of a quote from Faulkner’s “Requiem for a Nun“ – with attribution – appearing in Woody Allen’s “Midnight in Paris” constituted infringement.  The phrase that launched a thousand lawyers was Owen Wilson’s, where he states: “The past is not dead. Actually, it’s not even past. You know who said that? Faulkner.”  Faulkner Literary Rights LLC promptly sued for copyright infringement, bolting some trademark allegations on for good measure.  Yesterday, in an opinion that questions the wisdom of both the Faulkner estate’s theory of copyright law and the Syfy Channel’s recent film, “Sharknado“, a federal court sided with Sony, and dismissed the Faulkner estate’s case.

My contention remains that a short quotation of this nature is not copyrightable — i.e., it is too short to qualify for copyright protection.  The court’s opinion, however, combines notions of copyrightability with the question of fair use.  In practice, they ought to be two separate inquiries.  (1) is the quotation substantial enough to qualify for copyright protection?, and (2) given that the thing qualifies for copyright protection, was the use fair?   These two questions frequently get muddled — even in the courts.

Interestingly, the Faulkner estate proposed to enter evidence proving that it has previously obtained licenses of this nature, which the court rejected, saying it “is doubtful that any discovery to this effect will prove fruitful since the court does not consider a copyright holder to be entitled to licensing fees for fair use of his or her work.”  This is true: given the “clearance culture” that pervades IP licensing, everyone pays everyone, if only to avoid hassles.  The mere fact that someone pays someone else does not make the underlying claim valid.

Stay tuned for a potential 5th Circuit appeal, which we can only hope will cite Sharknado 2.

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