‘Midnight in Paris’ Suit Laughed Out of Court

     (CN) – A clearly exasperated federal judge dismissed copyright claims over the use of a nine-word William Faulkner quotation in the Woody Allen film “Midnight in Paris.”
     Faulkner is one of many 1920s luminaries to whom “Midnight in Paris” pays homage as its modern-day protagonist Gil Pender finds himself back in what he thinks of as a societal Golden Age.
     “The past is not dead,” Pender says at one point. “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 full Faulkner quotation, from “Requiem for a Nun,” is “The past is never dead. It’s not even past.”
     Faulkner Literary Rights, as administrator of the author’s literary estate, sued Sony for disgorgement of profits from the 2011 film, plus damages, last year.
     Chief U.S. District Judge Michael Mills in Oxford, Miss., threw the case out Thursday.
     “How Hollywood’s flattering and artful use of literary allusion is a point of litigation, not celebration, is beyond this court’s comprehension,” Mills wrote. “The court, in its appreciation for both William Faulkner as well as the homage paid him in Woody Allen’s film, is more likely to suppose that the film indeed helped the plaintiff and the market value of ‘Requiem’ if it had any effect at all.”
     Faulkner Literary had said the infringing misquote and use of Faulkner’s name are “likely to cause confusion, to cause mistake, and/or to deceive the Infringing Film’s viewers” about a perceived affiliation between the Faulkner Association and Sony.
     As part of his review, Mills said he “viewed Woody Allen’s movie, ‘Midnight in Paris,’ read the book, ‘Requiem for a Nun,’ and is thankful that the parties did not ask the court to compare ‘The Sound and the Fury’ with ‘Sharknado.'”
     SyFy debuted “Sharknado” to a disappointing 1.37 million on July 11, but a big push on Twitter quickly made the campy disaster flick a household name.
     Returning to the film at hand, Mills noted that Faulkner’s literary administrators provided little in the way of concrete claims against Sony, and instead relied on “threadbare recitals of elements” to try to make its case.
     Ultimately the transformative factor supports a fair use finding for the studio, according to the ruling.
     “The speaker, time, place, and purpose of the quote in these two works are diametrically dissimilar,” Mills wrote. “Here, a weighty and somber admonition in a serious piece of literature set in the Deep South has been lifted to present day Paris, where a disgruntled fiancé, Gil, uses the phrase to bolster his cited precedent (that of Hemingway and Fitzgerald) in a comedic domestic argument with Inez. Moreover, the assertion that the past is not dead also bears literal meaning in Gil’s life, in which he transports to the 1920’s during the year 2011. It should go without saying that this use is highly distinguishable from an attorney imploring someone to accept responsibility for her past, a past which, to some extent, inculpates her for the death of her child.”
     “The use of these nine words in Midnight undoubtedly ‘adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message,'” Mills added.
     Mills also pointed to the “transmogrification in medium” – lifting a line from a “serious piece of literature” for use in a movie comedy.
     As for the nature of the alleged infringement, Mills pointed out that the quotation in question is just nine words.
     “It is difficult to fathom that Sony somehow sought some substantial commercial benefit by infringing on copyrighted material for no more than eight seconds in a ninety minute film,” Mills wrote. “Likewise, it is evident that this eight second clip serves as a thematic catharsis or apex in plot to neither Requiem nor Midnight.”
     Faulkner Literary Rights also raised a claim of bad faith, asserting that Sony should have sought permission to use the nine words just as they sought and received permission to use Cole Porter’s song “Let’s Do It (Let’s Fall in Love)” and images of Pablo Picasso’s artwork in the film.
     “Sony attributed Faulkner’s work and used it through a character who was an enthusiastic admirer of Faulkner,” Mills wrote. “Moreover, the complaint does not provide facts from which bad faith could reasonably be inferred beyond conclusory allegations unlikely to withstand … scrutiny.”
     Of the estate’s concern the alleged “misappropriation” of the nine words would “confuse” the public, Mills felt “satisfied that no such misappropriation can possibly be inferred.”
     “The movie contains literary allusion, the name Faulkner and a short paraphrase of his quote, neither of which can possibly be said to confuse an audience as to an affiliation between Faulkner and Sony,” he wrote. “Allusion is not synonymous with affiliation, nor with appropriation. Faulkner has not provided any precedent suggesting that the mere use of a celebrity name in an artistic work somehow rises to the level of deception.”
     There are simply no “genuine issues of material fact from which a reasonable juror could find that Sony might have deceived or confused an audience,” the judge added.

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