SONY On Trial in Mississippi for Woody Allen Flick Copying Two Sentences (Nine Words) Inaccurately and with Attribution

The latest arguably excessively aggressive copyright litigation in the USA involves the attributed quote – or actually the slight misquote – of a couple of brief sentences from the late William Faulkner's Requiem For A Nun in a movie by Woody Allen.

Mr. Faulkner wrote:

"The past is never dead. It's not even past."

Mr. Allen’s movie, Midnight In Paris, supposedly has the following as part of the dialogue:

"The past is not dead" Actually, it's not even past. You know who said that? Faulkner.”

It should go without saying that any Canadian or UK court would toss this as “insubstantial copying”, without the need to even look at fair dealing. It’s two short sentences, and nine words. Almost nobody would consider the quotation involved here to be “substantial” or more than “de minimis”, although it was astonishingly suggested in the K-12 case in the Supreme Court of Canada that copying more than one sentence is “substantial”. Fortunately, the Supreme Court of Canada completely ignored this submission.

However, that said, there is some arguably rogue and wrong but often cited appellate law in the USA (Bridgeport v. Dimension Films, 6^th Circuit, 2005) that even copying of just a millisecond of a song may be infringing. Well – one has to admit that this is, at least, a “bright line”, as that Court stated.

The Faulkner case is not in the 6^th Circuit. What is important to know about this lawsuit is that it was filed in the Federal District Court in Oxford, Mississippi – the home of town of William Faulkner. A jury trial has been demanded. Anyone wanting to read up on jury trials in Mississippi may wish to consult John Grisham’s non-authoritative but very provocative and best-selling fictional effort entitled “The Runaway Jury”.

BTW, William Faulkner died on July 6, 1962. His works will go into the public domain in Canada at the end of this year.

HPK

Woody Allen Scores Successful Settlement (+ Canadians in the news)

Woody Allen has scored a 5 million settlement - half of the $10 million he had demanded from American Apparel for the unauthorized use of his image as seen above, apparently taken from that lovely old film Annie Hall. No bad indeed from his viewpoint, taking everything into account.

Here's the BBC take on it.

The unhappy founder and CEO of American Apparel is Dov Charney, a Canadian. Charney claims his insurance company made him settle. It would have made an interesting trial, to be sure.Here's Charney's interesting press release

Charney and his company (which he has sold but still runs) have been reported as having other legal problems as well. See also here. And lots of other places. Here's the NY Times take on the settlement and Mr. Charney's other troubles. According to the NY Times, "Mr. Charney, who has admitted in interviews to sleeping with employees, has faced several sexual harassment lawsuits since 2005."

Speaking of creative Canadians whose business involves IP, Conrad Black is no doubt pleasantly surprised to learn that he will get his day (actually an hour) before the US Supreme Court on the issue of:

Whether the “honest services” clause of 18 U.S.C. § 1346 applies in cases where the jury did not find - nor did the district court instruct them that they had to find - that the defendants “reasonably contemplated identifiable economic harm,” and if the defendants’ reversal claim is preserved for review after they objected to the government’s request for a special verdict.

For those that follow these things, here are some links:

• Opinion below (7th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

And here's David Akin's perceptive take.

HK