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VOL. 37 | NO. 31 | Friday, August 02, 2013

Clock strikes ‘Midnight’ for Faulkner defenders

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“The court has 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.”

Thus begins a seven-page opinion entered July 18, 2013, in the U.S. District Court for the Northern District of Mississippi. See Faulkner Literary Rights, LLC v. Sony Pictures Classics Inc., 2013 WL 3762270.

“Both the film and the novel are properly before the court as attached to the motion to dismiss” reads part of a footnote. Another footnote reads, “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.”

This gem of legal literature was penned by Hon. Michael P. Mills, U.S. District Judge. Who knew such a legal battle was going on in our neighboring state’s federal courthouse?

Seven lawyers squared off: For the plaintiff: Pope A. Mallette and Cal J. Mayo Jr., of Oxford, Miss., and Paul B. Watkins of Hayward, Cal.; for the defense: Christian D. Carbone and Nolan D. Thomas III of New York, N.Y., and Anita Modak-Truran and Paul S. Rosenblatt, of Ridgeland, Miss.

There being no dispute as to the facts, the issue of whether a single line from a novel paraphrased in a film, with attribution, is copyright infringement was answered thusly (and I paraphrase): Uh uh, not under these facts! The Fair Use doctrine carried the day, even at the motion-to-dismiss stage.

In Requiem, county attorney Gavin Stevens (whose early career is partially chronicled in Tomorrow, a short story taught (by me) in the Bowen Law School’s Law and Literature seminar) states: “The past is never dead. It’s not even past,” as he is admonishing a client to accept responsibility for the tragedies in her life – something that might help get her clemency from a death sentence.

In Midnight the time-traveling screenwriter Gil Pender, played by Owen Wilson (who, many would argue, is impersonating director Woody Allen throughout the film), states: “The past is not dead. Actually, it’s not even past. You know who said that? Faulkner …” Gil says this in a quarrel with his fiance, Inez, in an effort to gain the advantage over her.

Judge 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 fiance … uses the phrase to bolster … precedent …in a comedic domestic argument. … 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.”

“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,” Mills wrote.

Case dismissed.

Vic Fleming is a district court judge in Little Rock, Ark., where he also teaches at the William H. Bowen School of Law. Contact him at vicfleming@att.net.