How can Woody Allen infringe the copyright of William Faulkner, who has been dead since 1962? Wouldn’t Faulkner’s works be in the public domain? Turns out … no, and the case illustrates many aspects of copyright law basics. Whether or not Allen’s 2011 film, Midnight in Paris, actually infringed Faulkner’s copyright.
Copyright has expired for all works published in the United States before 1923. 1923 is significant because in 1998, 75 years after 1923, Congress amended the Copyright Act (the “Sonny Bono Copyright Term Extension Act“) such that no new works would fall into the public domain until 2019. In 2019, public domain for works published in 1923 would kick in, with 1924 next, then 1925 and so on. In other words, as to all works from 1923 and later that had not already fallen in the public domain by 1998, copyrights were extended until at least 2019.
For a good discussion of how this works, see this guide from the Stanford University Libraries.
But first, why is 75 years a magic number? This where the parable of Faulkner, Nobel Prize-winning author of Light in August, The Sound and the Fury and, most relevant here, Requiem for a Nun, is instructive. Faulkner died in 1962, but copyright to his works vested in his literary estate and specifically, in Faulkner Literary Rights. For works published before 1978, the law granted a copyright of 28 years from the date of publication with notice (through filing a copyright registration), renewable after 28 years for a single additional period of 47 years (by filing a renewal copyright registration). That is, 28 years plus 47 years for a total possible copyright term of 75 years. After the expiration of the full 75 years (28-year initial term plus 47-year renewal term), the work ordinarily would fall into the public domain. Similarly, upon the expiration of the initial 28-year term, if the copyright owner failed to file a renewal registration, the work would fall into the public domain.
So, with Requiem for a Nun, first published in 1951, the first term of copyright was 28 years and would have expired in 1979. If renewed properly, the renewal term would expire in 2026, at which point the work would fall into public domain. But wait – the first term of copyright expired in 1979, after the 1978 changes in the Copyright Act, correct? So, what then?
Congress did amend the Copyright Act in 1977, effective in 1978, with 2 sets of rules:
For works (like Faulkner’s) first published before 1978, the pre-1978 law’s 28/47 rules still apply, including the requirement that upon expiration of the initial 28-year term copyright owners are still required to file renewal registration to secure copyright renewal – even if the initial 28-year term expires in 1978 or later.
For works published 1978 and later:
- For an author-owned work (i.e. not “work made for hire”), copyright runs for a single term of the author’s life plus 70 years (and no actual copyright registration is necessary to effect the copyright – that was a big change in the law).
- For a “work made for hire”, copyright instead runs for the shorter of 95 years from first publication or 120 years from creation of the work, whichever expires first.
So, Faulkner and his dead nun are still subject to the pre-1978 rules, hence the renewed copyright (if actually renewed) would extend through 2026.
But wait, Faulkner is dead, right? True, but rights to copyright in his works survived and are vested in his literary estate, “Faulkner Literary Rights”. In fact, the initial registration (filed in 1951) was filed in the name of Faulkner Literary Rights, and the literary estate did file the renewal in 1979 – and does indeed still own the valid copyright.
Now to Woody Allen. This all matters today because Faulkner Literary Rights sued Sony Pictures last year as a result of a line from Allen’s film, Midnight in Paris, where Owen Wilson’s character 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.’” Sony Pictures was distributor of the film.
Faulkner Literary Rights’ complaint claims, “The Infringing Quote is taken from a passage in the William Faulkner book ‘Requiem for a Nun’, where it reads: ‘The past is never dead. It’s not even past.’”
In any event … in its defense, Sony does not challenge the validity of Faulkner’s copyright, but defends the film’s use of the quotation on fair use grounds. Northrop Grumman offers a similar fair use defense in defending a similar suit filed against it and the Washington Post by the Faulkner estate. At around the same time this past fall that it sued Sony Pictures, Faulkner Literary Rights also sued Northrop Grumman and the Post in connection with an advertisement purchased by Northrop Grumman in the Post last July 4th. The advertisement stated:
We must be free not because we claim freedom, but because we practice it.
The original quote was from a 1956 essay Faulkner wrote for Harper’s magazine, entitled “On Fear: The South in Labor”, in which Faulkner wrote:
We must be free not because we claim freedom, but because we practice it; our freedom must be buttressed by a homogeny equally and unchallengeably free, no matter what color they are, so that all the other inimical forces everywhere – systems political or religious or racial or national – will not just respect us because we practice freedom, they will fear us because we do.
These cases interested me first in order to understand the copyright claims of the Faulkner literary estate, even though the fair use defenses seem predictable and somewhat mundane (putting aside their merits). Faulkner Literary Rights seeks to preempt fair use arguments in its complaints, emphasizing the commercial nature of the uses by Sony Pictures and by Northrop Grumman. That would weaken one of the usual arguments in favor of a fair use, namely the noncommercial or educational purpose of the use, although the fact of a commercial use itself does not necessarily vitiate fair use. And at least with the Woody Allen film, the use – while also commercial – is clearly used for artistic expression.
For its part, Sony Pictures issued this statement about fair use: “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.” And Canadian Business observed about Woody Allen that “The famously reclusive director has not yet responded, but might just still be stammering and adjusting his glasses.”
And in their blog (“The Use and the Fury”) about the 2 Faulkner cases, Oren J. Warshavsky and Jessie A. Schweller point out that the quote from Requiem for a Nun is a short quote from a 250-page long book, while “Midnight in Paris lasts 94 minutes, and the accused dialogue only a few seconds.” That presumably goes to one of the 4 main factors used by courts to evaluate fair use, namely “The amount and substantiality of the portion used in relation to the copyrighted work as a whole”.
In a subsequent post, I will discuss how a newspaper – here, the Washington Post – could be named a defendant for a claim of copyright infringement by an advertiser.
Add Comment