JULY 2013

Copyright - The Law Cares Not For Trifles

Here is one of my favorite quotations from a district court judge's opinion? "How Hollywood’s flattering and artful use of literary allusion is a point of litigation, not celebration, is beyond this court’s comprehension." This sentence sums up the court's opinion that use of a particular quotation lifted from a novel was de minimus use.

Judge Mills, in Faulkner Literary Rights, LLC v. Sony Pictures Classics Inc., case no. 3:12cv100, dismissed a complaint based on a motion for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Under this rule, a defendant can dispose of an unworthy lawsuit by bringing a motion to dismiss as its first answer to the plaintiff's complaint, and a judge can dismiss these nuisance cases before defendants have to incur all the legal fees and costs associated with discovery.

The quotation of Faulkner's work Requiem for a Nun that is alluded to by Woody Allen's movie Midnight in Paris is: “The past is never dead. It’s not even past." In the movie, a nearly identical phrase is introduced when one of the modern day characters, returning from the past, states: “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.” The book was written in 1950, and Faulkner's work had nothing to do with temporal displacement to a living past.

Judge Mills gets bonus points for distinguishing between the idea, that the past lives on in the present and is never dead, and Faulkner's expression of the idea. The expression of an idea is how it is written or recorded and can be protected by copyright. The idea, itself, is never properly a subject of copyright.

Plaintiff's counsel misfired by trying to emphasize the importance of the IDEA as a critical part of Faulkner's theme in the overall work. Plaintiff's counsel also emphasized the enduring impact of the selected quotation, and its use by President Obama, as evidence of its qualitative importance to the novel. This, too, missed the mark. "Qualitative importance to society of a nine-word quote is not the same as qualitative importance to the originating work as a whole," according to Judge Mills. Instead, the court looked at the expression of the phrase within the context of the expression of the work as a whole and finds its use by the movie both quantitatively and qualitatively short of copyright infringement.

Sony's use of copyrightable expression from Faulkner's work was de minimus. The Supreme Court of the United States held in Wisconsin Dep't of Revenue v. William Wrigley, Jr., Co., 505 U.S. 214, 231 (1992) that “the venerable maxim de minimis non curat lex (“the law cares not for trifles”) is part of the established background of legal principles against which all enactments are adopted, and which all enactments (absent contrary indication) are deemed to accept.” Interestingly, although brought as a motion to dismiss under Rule 12(b)(6), the case was dismissed by the court pursuant to Federal Rule of Civil Procedure 58, as a summary judgment. This was only possible, because there were no facts in dispute (i.e. defense counsel stipulated that the facts in the complaint were true), and the court found that the plaintiff had not raised a reasonable expectation that discovery would lead to additional facts on which a judgment in its favor could be premised.

Defendant risked a summary judgement of infringement on the facts presented in the complaint by admitting the facts in the complaint are true, but in this case, if the appellate court does not overturn this verdict, then the Defendant made the right call.