For Fair Use Week, I offered a small “fair use” quiz to colleagues. I listed a dozen or so different scenarios, taken from famous or recently-well-publicized fair use cases, and made a simple paraphrase of the case, with a “fair use” or “license it” choice. At the end of the survey (which was anonymous), I posted the note: “Surprise! All of these uses were found to be fair use by US courts,” and gave a brief citation to each case. (Plus, the usual lawyerly cautionary note that these were not enough facts to really assess the fairness of the use, but that at the least, I wanted folks to know that these facts could give rise to a finding of fair use.)
The poll was never intended to collect data in any reliable way — I drafted it in about half an hour, phrased things in ways that were sometimes intended to be counter-intuitive or provocative, and of course left out much nuance. I intended it as a consciousness-raising exercise, and hope it was useful in that regard: Recognizing how broad fair use can actually be.
It turns out to have also been useful to me, in giving me a bit of a copyright agenda. So, I thought I’d start by talking about each of these cases in context. I’ll do one blog post for each “hypothetical”.
Paraphrasing a famous quote from a novelist, in a commercially released film. Almost a quarter of respondents thought this should be licensed. The Faulkner estate agreed, actually, and sued Sony Pictures for the paraphrase of William Faulkner’s quote in Woody Allen’s “Midnight in Paris”. The District Court disagreed, holding Sony’s use to be a fair use in July 2013. Faulkner Literary Rights, LLC v. Sony Pictures Classics, Inc., et al (N.D. Miss. July 18, 2013). (Eriq Gardner for the Hollywood Reporter covered the case, and gives a fair write-up.)
The quote in the movie (“Midnight in Paris”) goes like this:
“The past is not dead! Actually, it’s not even past. You know who said that? Faulkner, and he was right. I met him, too. I ran into him at a dinner party.”
And the original quote, in Faulkner’s Requiem for a Nun, is certainly one of Faulkner’s more memorable quotes:
“The past is never dead. It’s not even past.”
Reasonable People Can Disagree About Fair Use
This brings up my first point, which is that reasonable people can disagree about fair use. While I think this was a pretty obvious fair use case, I don’t think the William Faulkner people were completely crazy, or arguing in bad faith, to make their argument. I imagine that the thinking, on the part of both the Faulkner estate and 24% of my colleagues, was that, “Sony Pictures is making a highly commercial use, and the Faulkner Estate would have been happy to license this use. So that’s the two most important fair use factors, and the second factor — the nature of the copyrighted work — also favors Faulkner.”
But Judge Mills of the Northern District Court of Mississippi held otherwise, and not because he was a fan of Woody Allen, either. (Judges and lawyers like to drop snide comments into footnotes, which I find highly amusing. Here, Judge Mills dropped a footnote on the title, “Requiem for a Nun,” in which he responded to Sony’s characterization of the Faulkner work:
The court disagrees with Sony’s characterization of Requiem as being “relatively obscure.” Nothing in the Yoknapatawpha canon is obscure. Having viewed the two works at issue in this case, the court is convinced that one is timeless, the other temporal.
I would not go so far as to say that William Faulkner is deified in the South, but it was perhaps not Sony’s best decision to minimize one of Mississippi’s favorite sons, to a court in Mississippi.)
The Court gave short shrift to the de minimis doctrine, which I think was a lost opportunity to make a nice decision out of the most obvious call, but instead considered the de minimis issue within the context of fair use. Ultimately the Court held that “Sony’s use in this matter was de minimis“. (slip op. p.15)
Factor One – Purpose and Character of the Use, and Factor Three, too
In considering the first factor, the Court quotes the Supreme Court’s Campbell case, discussing the Constitutional purposes of the factor, which contextualize the entire analysis:
“The central purpose of this investigation is to see… whether the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is transformative. …
The goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”
Campbell, 510 US 569, 578 (1994). Campbell is the important case in which the Supreme Court effectively ratified the use of “transformativeness” in an analysis. Virtually all fair use cases of this nature will cite to Campbell at some point, and any case involving with two different creative works will have to grapple with it. The Court contrasts the “speaker, time, place, and purpose of the quote” in the two works, finding them “diametrically dissimilar” and “highly distinguishable.” (slip op., pp.8-9). Because the quotes are used in such different ways, the new use “undoubtedly” transformed the work.
The Court also thought the shift in medium from novel to a comedy film added to the transformativeness; I’m unconvinced by this particular analysis, but it’s important to note.
Having contrasted the way the quotes were used, the Court holds, “These factors coupled with the miniscule amount borrowed tip the scales in such heavy favor of transformative use that it diminishes the significance of considerations such as commercial use that would tip to the detriment of fair use.” (slip op. p.9) The case was won right there, with the Court finding the transformativeness and small amount taken to be so significant. But the Court goes on to note, “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. Likewise, it is evident that this eight second clip serves as a thematic catharsis or apex in plot to neither Requiem nor Midnight.” (slip op. p.9)
The Court is sliding into the analysis of the third factor — the amount and substantiality taken — but these two factors are inextricably related to each other. It’s not just whether each factor goes one way or the other — the analysis is about how the factors relate to each other. Is the amount taken too much, in light of the purpose and character of the use? Or is it a reasonable amount?
Factor Two – Nature of the Original Work
The Court found the nature of the work to be “neutral”. That seems on its face to be bizarre — surely the Faulkner work is entitled to the strongest protections accorded to a highly creative work? Yes, but in a transformative use, this factor is much less important. Analytically, it’s a bit muddled to say that the factor is neutral rather than simply noting that it’s not very important; but the outcome is the same. This factor doesn’t really hurt Sony, and doesn’t help Faulkner — why? Again because of the first factor: The purpose and character of the use were highly transformative.
Factor Three – Amount Taken
The analysis here was quite interesting. The focus is usually on the “amount” taken, and sometimes courts consider the “substantiality”, as in the “heart of the work” doctrine. Even if a small “amount” was taken, was it the “heart of the work”, as it was in Time v. Nation, the Gerald Ford memoir case?
Here, the Court captioned this section “Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole.” Having already addressed the “amount” in its factor three discussion (a 9-word quote), the Court focuses this discussion almost entirely on the “substantiality” part of the analysis. Engaging in a bit of literary analysis, the Court considers whether Faulkner’s quote, which captures a theme on display throughout the novel, is “qualitative[ly] importan[t]” to the originating work as a whole. Noting the numerous times the theme was reiterated, the Court found here that the quote was merely a “fragment of the idea’s expression,” (slip op. p.11) after reminding us that the idea itself was not protectable under copyright.
Factor Four – Effect on Market
We know early on in the discussion of this factor that “the court considers this factor to be essentially a non-issue in light of the stark balance of the first factors weighing in favor of Sony as well as further considerations that follow.” (slip op. p.12)
But the Court goes on to note, with incredulity, that the market for Faulkner’s work could not reasonably be harmed by this use, and may have been assisted by the “homage” (slip op. p.13):
The court is highly doubtful that any relevant markets have been harmed by the use in Midnight. How Hollywood’s flattering and artful use of literary allusion is a point of litigation, not celebration, is beyond this court’s comprehension. 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.
But those who thought Faulkner’s estate entitled to licensing revenues were certainly not seriously considering that Faulkner’s market for the novel was harmed by this use. Rather, they were considering the lost licensing revenue.
The reasoning here goes like this. “B is making a use of A’s work. A is willing to charge for that use, so B cannot claim fair use, because B could simply have paid A and gotten permission.” This reasoning bedevils fair use, in part because it seems so easy. Why not get permission, if you can?
Here’s why. Fair use cannot be available only if permission is denied. The asking of permission is its own harm to society in many cases, because it increases transaction costs for uses that simply are — fair. The social harms that could also flow from, for instance, requiring people to ask permission before including quotes in a critical review, would also be substantial.
There are numerous specific cases in which it would also simply be infeasible to ask for permission first. Rightsholders don’t exist or can’t be identified; time is of the essence; rightsholders are too numerous to reasonably reach out to them all; the rightsholder always says no; the rightsholder bears a grudge; it would infringe other important rights, such as privacy rights of students, to ask; and so on.
And finally, allowing “permission could be received and fair use only exists if there is no permission available” would basically allow the fourth factor analysis to swallow all the other factors. For a few years, some courts wrote opinions that way; but since the mid-90s, courts have increasingly turned back to the holistic analysis, interpreting all four factors in light of the first factor.
This court does not go into great detail about these potential social costs, or the problems with the circularity of the lost licensing revenue argument. Instead, the Court says, of the possibility of lost licensing revenue:
The court is doubtful that any discovery to this effect will prove fruitful since the court does not consider a copyright holder to be entitled to licensing fees for fair use of his or her work.
The Court then makes short work of a trademark claim (no possibility of confusion, and if there were, Sony has a First Amendment defense), and a commercial misappropriation claim (the Court refused to address it because all federal law claims had been addressed).
And that’s it — this case wasn’t a hard one for the Court, and paraphrasing a famous quote — with attribution! — was fair use. Even in a commercial work. Even if licensing revenue was potentially lost.
PDF of decision: Faulkner-v-Sony-NDMiss-2013
Next time I’ll take on a different fair use “hypothetical”, “ripped from the headlines,” as my first year Contracts professor Bob Berring used to say.share: by