The past isn’t dead, it’s buried alive

**Updated, see end of post

I try not to post too often on copyright issues, even though it’s something I read about pretty much constantly, but if you want to know why I’m genuinely worried about where ownership culture is taking us, here’s pretty much the best (read: worst) example I’ve seen in a long while.

First, a quick explanation of what I mean by “ownership culture,” because I want to be clear on something: I’m not one of those people who argues that there should be no such thing as intellectual property whatsoever, or that artists shouldn’t have some control over how their work gets used. But it’s a general truism that the more control people have, the more they want, and the more they assume they’re entitled to. So where we managed to get a couple century’s worth of practice out of the idea that things like books and music should eventually go into the public domain so that everyone can take advantage of things that at a certain point are part of a shared culture, that idea’s been pretty much destroyed, at least in practice. Nothing’s gone into the public domain in the U.S. since 1998, and nothing will until 2019 at the earliest, assuming nothing changes. That’s 21 years with nothing new in the public domain, and a few rulings actually took some stuff out, meaning the total works in the U.S. public domain has actually gone down.

Which is completely nuts.

Canada’s actually a little better — technically, I’m pretty sure Steamboat Willie is in the public domain here, but I dare someone to test that one — but the fact remains, the last three-quarters of a century have seen the major arts organizations arguing that they should get bigger and bigger slices of anything to do with the works they own. And at the same time, things like trademark and patent law are consistently being expanded into lawsuit-generating machines that generate income for lawyers and pretty much no one else.

Sorry, I’m prattling on a bit. Here’s the issue: The estate of William Faulkner has apparently filed suit against Sony Pictures because a Woody Allen movie quoted nine words from the author (via Techdirt). It was in Midnight in Paris, a pretty great movie that both indulges in and criticizes nostalgia for the headier days when Fitzgerald and Hemingway were holding court at Gertrude Stein’s, and at one point the main character says “The past is not dead! Actually, it’s not even past. You know who said that? Faulkner. And he was right. And I met him, too. I ran into him at a dinner party.”

If you’re a reasonable person, you might think, hey, that’s a pretty valid use. It’s a paraphrase, it’s attributed, and it’s small enough that no one could possibly object. Odds are, a judge is gonna say the exact same thing if it makes it to court (it’s clearly fair use, and is way too small a portion of Faulkner’s work to pass the de minimis standard). But the fact remains that the Faulkner estate apparently thought that this use was entirely unacceptable, and filed a lawsuit. Because apparently we’re at a point where any sort of quotation, any sharing of ideas, even with attribution, even of a single sentence that’s been out there for more than half a century, is out of bounds unless you get permission and pay a fee.

There was a time when it was considered a sign of refinement to be able to quote from the literary greats. But the trend now seems to be towards locking down culture forever. To paraphrase Faulkner while I can, the past isn’t dead, but it might as well be — for as much as the public’s allowed to engage with it, it’s pretty much buried alive. We’re not there yet, but in this area at least, what’s a frivolous lawsuit one day seems to become standard practice not too far down the line. And that’s scary.

Apparently the Faulkner estate isn’t backing off — in fact, it’s doubling down. They’ve just filed suit against The Washington Post for running an attributed, single-sentence Faulkner quote in an ad last year (“We must be free not because we claim freedom, but because we practice it. — William Faulkner; the irony is almost unbelievable). Again, if the cases actually go to trial, there’s almost no chance of them winning. But cases like this rarely go to trial — settlements are the norm, because that’s usually cheaper than lawyer’s fees and avoids setting precedents. And if that proves profitable for the Faulkner estate, look for other estates and writers to quickly follow suit — and be careful about quoting anything less than a century old, I guess.

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