A Legal Blog by Aaron | Sanders, PLLC

A Requiem for a Lawsuit Signifying Nothing: De Minimis and Fair Use

Insert Pun Here: “Dead,” “Requiem,” “Past,” “Woody”

A lot of people breathed a huge sigh of relief when a Mississippi federal judge dismissed (at the pleadings stage) claims for copyright infringement stemming from a paraphrase of a well-known William Faulkner quote in a Woody Allen movie. Then a lot of people scratched their heads at the basis: fair use, not something like de minimis (i.e., too short to be actionable)?

The allegedly infringing quote from the movie, Midnight in Paris, is: “The past is not dead. Actually, it’s not even past. You know you said that? Faulkner, and he was right. And I met him too. I ran into him at a dinner party.”

The quote from the Faulkner novel, Requiem for a Nun, one of the Yoknapatawpha novels*: “The past is never dead. It’s not even past.”

* The judge is clearly a much bigger fan of Faulkner than I am. I tried reading The Sound and the Fury in high school and haven’t been back since.

Faulkner’s dead, of course, but his copyrights live on, owned now by Faulkner Literary Rights, LLC (though how it came to own Faulkner’s intellectual property is not terribly well understood). Heirs are often much more…

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The Long Shadow (Dancer) of Copyright Law

Accidental Infringement in the Real World

Wasn’t I just blogging about how easy it is to accidentally infringe copyright with computers?  Well, reality TV shows and news-shows have the same problem because they record sound and images (which is making a copy) in public, where you wouldn’t expect there to be copyrighted material–except that sometimes there is.

This complaint is a case in point.  The defendants are producers of MTV’s Real World series.  Part of the appeal of shows like this is that the cameras follow the shows‘ protagonists out into public.  Thus, for example, the folks walking around in the background aren’t hired extras but are ordinary folks going about their business.  The producers can only exercise control over the background in the finished product through editing or very careful camerawork.

But what if, in the course of shooting one of these scenes, the cameras record a copyrighted work in the background?  For example, what if the protagonists go to a club and copyrighted music is playing the background?  The recordation could be completely accidental or incidental.  Simply by having the cameras rolling, the producers are making a copy of the song.  If they then include the background music in a…

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