Hsieh on "The Past Is Never Dead, It's Not Even a Trademark or Copyright": William Faulkner on the Elusive Boundary Between Intellectual Property Forms No One Ever Talks About @timhsiehiplaw @OCULAW

Timothy T. Hsieh, Oklahoma City University School of Law, has published "The Past Is Never Dead, It's Not Even a Trademark or Copyright": William Faulkner and The Elusive Boundary Between Intellectual Property Forms No One Talks About. Here is the abstract.

In the 2013 federal case of Faulkner Literary Rights, LLC v. Sony Pictures Classics Inc., et al., Case No. 3:12-cv-100-MPM-JMV (N.D. Miss. July 18, 2013), the Estate of William Faulkner sued Sony Pictures due to Woody Allen’s film Midnight in Paris having a character refer to the Faulkner quote “The past is never dead. It’s not even past” from Requiem for a Nun. In the suit, the Faulkner Estate alleged copyright infringement as well as trademark appropriation under The Lanham Act. A 2012 suit also occurred where The Faulkner Estate sued aerospace defense technology company Northrup Grumman for using the same quote in a 2011 advertisement placed in The Washington Post. See Faulkner Literary Rights LLC v Northrop Grumman. Corporation and the Washington Post Company, No 3:12-cv-732-HTW-LRA (S.D. Miss. Oct 26, 2012). Both cases not only dealt with trademark law, the copyright law doctrine of fair use and also de minimis usage of copyrighted material, but also the fascinating quandary of where one draws the line between a copyright and a trademark, e.g., when does a slogan or title become too long to trademark and proper to copyright and vice-versa, when does a copyrightable line of literary text become too short to copyright and proper to trademark? This boundary between a copyright and a trademark is one seldom analyzed by the legal literature out there, and almost overlooked or even dismissed as a simplistic concept not worth a deeper look. However, these cases involving the infamous Faulkner line compel the conclusion that the difference between a trademark and a copyright might be a much more complex determination to make. By analyzing these two cases, the history of cases differentiating a trademark and a copyright or the “trademark-copyright” boundary, and the potential usage of similar lines from Faulkner’s work, this paper will discuss how one of William Faulkner’s most enduring and timeless lines pushes the boundaries of a cutting-edge but little analyzed concept in intellectual property law.

Download the article from SSRN at the link.

Faulkner On Voting Rights

Joel Heller has published Faulkner’s Voting Rights Act: The Sound and Fury of Section Five. Here is the abstract.

In its most recent examination of the Voting Rights Act, the Supreme Court told a story about the South. Although the Court ultimately did not rule on the continued constitutionality of § 5, the VRA provision that singles out certain jurisdictions with a history of racially discriminatory voting practices for additional regulation, its opinion expressed significant doubt that the measure was still justified. In this tale of progress and redemption, the Court concluded that “things have changed in the South.”
One body of commentary that was not considered in this story was the region’s literature. Yet many of these works, in particular the novels of William Faulkner, address some of the same thematic and sociological concerns that animate § 5. Specifically, Faulkner’s novels explore the power of memory in the South and the ongoing influence of the past on present actions and attitudes. In his depiction of the burden of memory, Faulkner suggests a distinct role for § 5 that policymakers and commentators should consider in the debate over its continued necessity. Rather than punishing the sons for the sins of the fathers, the provision can be seen as targeting the independent concern of a past-haunted society and the uncertain results which the unchecked power of memory can produce in the present.
This Article explores how Faulkner’s novels can contribute to a better understanding of the role § 5 serves in the modern South and thus inform the debate over whether the law remains constitutional. In doing so, it also considers the role literature can play in legal analysis beyond the uses typically identified by the law and literature movement.

Download the paper from SSRN at the link.