In his book Requiem for a Nun, William Faulkner penned the popular phrase, “The past is never dead. It’s not even past.” Barack Obama has since paraphrased the quotation in his exceptional “A More Perfect Union” speech in 2008, and most recently, Owen Wilson imperfectly recited it in the 2011 Woody Allen movie Midnight in Paris.

In Midnight in Paris, Wilson, playing struggling screenwriter Gil Pender, takes a trip to Paris and travels back in time, meeting his literary heroes along the way.  After a night spent in 1920’s Paris, Pender 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.”

Faulkner Literary Rights, LLC, the owner of William Faulkner’s literary properties, is not happy with the film’s unauthorized use of the quote, even in its paraphrased form and with proper attribution. The copyright owner filed a complaint in the US District Court in Mississippi against Sony Pictures Classics, Inc. for copyright infringement, violation of the Lanham Act, and commercial misappropriation. Faulkner’s estate asks for “damages, disgorgement of profits, costs and attorneys fees.” The complaint states, “The Copyright Act grants Faulkner the exclusive right to reproduce and distribute the Book and the Original Quote.” What about fair use, though?  Sony has maintained, “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.”

Slate.com reports that under fair use, “artists, scholars, and others can borrow or use small portions of in-copyright works for socially productive purposes without seeking permission,” and that “the intent is to prevent a restrictive creative environment and provide a balance between free speech and the rights of individual creators.” If this suit succeeds, it could serve to inhibit creative freedoms by restricting even minute references to copyrighted material. This result could disturb the objective of copyright law, tipping the scale further in favor of copyright owners.

The complaint also attests that, “The use of the infringing quote and of William Faulkner’s name in the infringing film is likely to cause confusion, to cause mistake, and/or to deceive the infringing film’s viewers as to a perceived affiliation, connection, or association between William Faulkner and his works, on the one hand, and Sony, on the other hand.” It seems unlikely that viewers might conflate the short quotation with a Faulkner endorsement or affiliation, especially since Faulkner has been out of commission since 1962.

To again quote Faulkner, “I never know what I think about something until I read what I’ve written on it.” Perhaps this article will clarify my true opinions on the issue at hand.

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