Never Dead

Natalie Shapero
August 23, 2013
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As a reader eternally preoccupied with the life cycles of literary aphorisms, I pay special attention to the (fittingly) frequent recurrences of Faulkner’s admonition that “the past is never dead. It’s not even past.” This particular gut punch was first uttered by a no-nonsense attorney in Faulkner’s novel Requiem for a Nun, and, dutifully following in its speaker’s footsteps, has since gone on to a long and illustrious career in American law.

The quote show up in judicial opinions on a wide range of topics, including a high-profile pension dispute involving a disgraced former governor of Rhode Island and the closely-watched case of an Operation Iraqi Freedom veteran with an exemplary service record who, after returning home to family tragedy and financial strain, fell repeatedly into drug dealing. “The past is never dead…” is no doubt appealing for its sheer zippiness, but I imagine that its succinct defeatism is the real reason it gets so much play. This quote expresses a particular resignation to endemic failure — a resignation that unfortunately inheres, among other places, in the justice system. So, after all its hard work encapsulating futility in our courts, it only seems fair that “the past is never dead…” get a lawsuit of its very own.

Enter Woody Allen and his literary nostalgia comedy Midnight in Paris. Last month, the United States District Court for the Northern District of Mississippi handed down its decision in the case of Faulkner Literary Rights v. Sony Pictures Classics, a lawsuit over whether the movie had violated the intellectual property rights of the Faulkner estate. At one point in Midnight in Paris, Owen Wilson’s aspiring novelist character becomes concerned that his girlfriend is having an affair with her pompous friend. They argue, and, in the course of the fight, he suggests that Hemingway and other 1920s expats would take his side. The girlfriend, though, is unmoved by the invoking of dead authors, to which Wilson’s character replies, “The past is not dead. Actually, it’s not even past. You know who said that? Faulkner, and he was right.”

Faulkner may have been right, but he certainly wasn’t amused. Or, at least, his estate wasn’t. The estate took Sony to court over the quote, which was used without permission, arguing that the movie infringed on the estate’s copyright in the novel, and also created confusion as to whether Faulkner’s works had somehow endorsed Woody Allen’s. Sony then defended the movie by arguing that its incorporation of the quote was fair use. (Basically, Sony argued that it fell under an exception to copyright law that sometimes permits artists and scholars to lift existing, copyrighted material for use in their own work, so long as they are transforming it into something new, rather than just nakedly seeking to cash in on someone else’s original creation.)

The court agreed, and ultimately dismissed the lawsuit. The fair use analysis involves several different assessments, such as how much of the copyrighted work was used (here, two lines out of an entire novel) and whether the inclusion of the earlier work significantly boosted the later work’s commercial appeal (here, probably not). What most interests me, though, is the court’s analysis of whether Woody Allen used the quote in a novel way, sufficient to give it a context and meaning distinct from the one in Requiem for a Nun. The opinion discusses how, in Faulkner’s novel, the quote is used simply metaphorically, whereas Midnight in Paris, a movie about time travel and dreamlike affiliations with writers of the past, extracts from the same aphorism a much more literal meaning.

This lawsuit is also notable, in part, because Woody Allen is really no stranger to litigation. I’m referring here not to the endless and endlessly salacious custody issues following his break-up with Mia Farrow (though, yeah, there’s also that), but instead to Allen’s vigilant, decades-long efforts to combat the unauthorized use of his face in ads. In the 1980s, Allen brought several successful lawsuits against companies involved in producing print ads that featured a Woody Allen lookalike named Phil Boroff, who wore Allen’s trademark glasses and sometimes even clutched a clarinet. More recently, Allen wrangled a $5,000,000 settlement from American Apparel after the company plastered a still from Annie Hall across billboards in New York and L.A.

This most recent lawsuit, then, resonates with past events in a number of weird ways, and it entangles Faulkner and Woody Allen in much the same way as the novelist in the movie confusedly entrenched himself in a Paris now long gone. Midnight in Paris tells a story about time stretching backwards and the durability of standard human desire and dispute, and so this lawsuit almost feels like a natural epilogue, like a string of tin cans tied to the bumper of the mysterious Peugeot limousine that transports writers back of the age of their idols. I wonder if litigation will continue. The Faulkner estate really does not have a good case under the current copyright regime, and probably shouldn’t bother to revisit this decision in an appeal, but you know what Faulkner (or Woody Allen) might have to say about that….

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