Faulkner Quote in Movie is Fair Use, But . . .

Owen Wilson in a movie without Ben Stiller???

Owen Wilson in a movie without Ben Stiller???

Chief Judge Michael Mills (District Court, Northern District of Mississippi) ruled that the use in the movie Midnight in Paris of a 9 word quote from the Faulkner novel Requiem for a Nun did not expose Sony Pictures to liability on any federal claims. (Hollywood Reporter)

The ruling (which you can read here) concluded that (1) the quote met the standard for fair use and (2) the quote did not create confusion as to any affiliation between the Faulkner estate and the movie. From a legal point of view, the most interesting aspect of the opinion is that the judge collapsed two arguments related to the question of whether the use infringed ((1) the substantial similarity of the movie and the novel and (2) the de minimis nature of the use) into the fair use analysis. It’s odd since fair use is an affirmative defense that only needs to be addressed if infringement is first shown. Here the judge skipped infringement main course and went straight to the fair use dessert.

But that is not why I’m posting it for you. I’m posting it to make an entirely different point.

You see, if you had walked into my office and told me you wanted to use a 9 word quote from a 220 page novel along with attribution of the source and then asked if that would be copyright infringement, I would have said, “No. It is not copyright infringement, and it is very clearly fair use even if it is infringing.”

But hopefully, I would have said more and you would have carried your decisions making process further than that.

Here’s the rub. Even though it appears to be a clear winner in court – you might STILL HAVE TO GO TO COURT.

Notice that someone was sued. Lawyers were involved. We got an actual written decision. All of that costs time and money. This case was decided on a 12(b)(6) motion to dismiss – which is very early in the civil process. Even so, getting that far would easily cost you a sum well into five figures.

The take-away is that whether something will make you liable is not always the most important question; often, the most important question is whether something will get you sued.


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2 responses to “Faulkner Quote in Movie is Fair Use, But . . .

  1. Good analysis, and your final point is the practical one. At the end of the day, whether or not a quote is fair use shouldn’t be our primary consideration. What we should be considering is whether or not that quote is so important to what we’re writing that we’re willing to be exposed to the risk of being sued and even in the best case scenario losing more in court costs than the work will probably earn us, or even being driven to or over the brink of bankruptcy. Looked at in that light, there are very few situations I can think of where a quote would be that critical, and even then there are usually other ways to achieve our goals. I write a lot of stories with references to copyright songs, and I never use more than the title, for exactly these reasons.

  2. Pingback: Can I? – Thinking about legal questions | Writer-in-Law

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