Prof. Rodney A. Smolla, Duke University School of Law
November 26, 2013

“The past is never dead.  It’s not even past.” 

Those words are from William Faulkner, in his part-play part-novel Requiem for a Nun.  They are spoken by the character Gavin Stevens, county attorney for Faulkner’s fictional Yoknapatawpha County.

The words are among Faulkner’s most famous, and for good reason.  The quote is more resonant than the truism that “history repeats itself” – for Faulkner’s quote suggests the deeper insight that it is not simply that history repeats, it is that history never really dies.  History, like the poor, we will always have with us.  History is the ever-present and ever-haunting stuff of guilt, redemption, identity, existence, and meaning.

If this quote was good enough for Faulkner, it has been good enough for countless Faulkner quoters.  Over the decades the passage has passed into the lexicon of American cultural lore, as a tag line for the nobility of preserving a usable past.  As a college student I witnessed the quote invoked by professors of American literature and history as justification for the study of the past.  As a seasoned university educator I have since in turn often invoked the quote to explain to college students (or their skeptical parents) why a liberal education dosed with liberal helpings of history and classics and literature and philosophy is so critical to their development as educated citizens and to a society ever seeking the blessings of civilized prosperity.

I was not alone.  In his campaign for president, then-Senator Barack Obama would paraphrase Faulkner’s quote in one of Mr. Obama’s most significant speeches, his “More Perfect Union” address, in which he dealt with the history of American race relations against the backdrop of the controversial (and arguably racist) remarks of his friend Reverend Jeremiah Wright.  “The past isn’t dead and buried,” Mr. Obama argued.  “In fact, it isn’t even past.”

Woody Allen, in his movie Midnight in Paris, also invoked the quote.  Midnight in Paris is equal parts fantasy, drama, and comedy, playing impish magic with time as the movie’s central character, Gil Pender, a successful but restless Hollywood screenwriter, longs for the nostalgic and romantic past of Paris circa 1920.  In the course of one of Pender’s fantastical trips backward in time, Pender states: “The past is not dead.  Actually, it’s not even past.  You know who said that?  Faulkner, and he was right.  I met him too.  I ran into him at a dinner party.”

Woody Allen’s use of Faulkner was part of the larger motif of his film, which won the Academy Award for Best Original Screenplay.  In his travel back through time, Pender encountered the likes of Gertrude Stein, Ernest Hemingway, Pablo Picasso, Cole Porter, and Zelda and F. Scott Fitzgerald, all of whom spoke lines conjuring their artistic works and personas.

One might have thought that the estate of William Faulkner would be flattered by such constant imitation, but apparently not.  Faulkner’s estate sued Sony Pictures Classics, Inc., the deep pocket behind the film.1  (I was a little put off by this, frankly, since I am sure I have used the quote – verbatim, mind you, not just a loose paraphrase – scores of times, certainly much more than either Woody Allen or Barack Obama, but the Faulkner estate didn’t seem to think it was worth suing me.)

Faulkner’s estate did sue Sony, however, and not just for copyright infringement.  The Faulkner estate claimed that Woody Allen’s use of the Faulkner quote not only violated the estate’s copyright in Requiem, but also constituted a violation of the Lanham Act and state-law commercial misappropriation.

Mississippi federal district Judge Michael P. Mills, sitting in William Faulkner’s home state, drew on a combination of venerable copyright and First Amendment law principles to dismiss the claims of the Faulkner estate.  In an opinion that could well have garnered an “A” grade from the law school, literature department, or film studies program at any estimable American university from Ole Miss to Yale, Judge Mills reasoned that Woody Allen’s use of the quote could not fairly be understood to invade any interest of the Faulkner estate that the law protects.

Earning well-deserved style points in American literature, Judge Mills first explained how the original lines spoken by Gavin Stevens embody a central theme of Requiem.  The past is always with us, and cannot be disowned, disavowed, or discarded.  As the lawyer elaborates, the past is like a promissory note with a trick clause:

It was as though she realized for the first time that you – everyone – must, or anyway may have to, pay for your past; the past is something like a promissory note with a trick clause in it which, as long as nothing goes wrong, can be manumitted in an orderly manner, but which fate or luck or chance, can foreclose on you without warning.

In Midnight in Paris, Woody Allen is at once romanticizing the jazz-age film-noir past, as he did with Humphrey Bogart and Casablanca in his early film, Play It Again Sam, while also warning that the romanticized past is usually not all it is romantically cracked up to be.  Many of us have played the time-travel fantasy game, “I-wish-I-had-lived-when.”  Woody Allen’s movie cautions against the game’s driving premise, warning that nostalgia for the golden past is no sound foundation for finding a life of deeper meaning and consequence.  The romanticized past is a false god and a fool’s gold.

Looking to the law, Judge Moore invoked the nice legal doctrine de minimis non curat lex, or “the law cares not for trifles.”  Judge Moore wisely saw that by any plausible measure, Woody Allen’s use of the Faulkner quote was a fair use under copyright law.  Allen’s movie was highly creative in its own right, using the brief snippet from Faulkner to the service of a much larger transformative project.  Judge Moore appropriately refused to be misled by the argument, advanced by the Faulkner estate, that the estate’s case was bolstered by the fact that the Midnight moviemakers did obtain copyright permission from the owners of Cole Porter’s song “Let’s Do It (Let’s Fall in Love)” and Pablo Picasso’s artwork, for the inclusion of their works in the movie.  The distinction, Judge Moore noted, was that the movie used the entirety of Cole Porter’s song and the entirety of Picasso’s painting, but only two short sentences from Faulkner.

As to the remaining claims under the Lanham Act or Mississippi commercial misappropriation law, Judge Moore properly ruled that whatever trivial harm Woody Allen’s use of the Requiem quote might have caused the Faulkner Estate – and it is difficult to imagine that any palpable harm was actually suffered – that harm was easily trumped by the First Amendment interests of the moviemakers.

Judge Moore got it all right, and was gracious in the process.  His articulation of the values of filmmaking, literature, and law was in all respects studiously judicious.  And for this Judge Moore ought be commended, for being judicious is a jurist’s job.

One wonders, however. . . .

What was the good judge really thinking about this lawsuit, and what would he really say, if not bound by the boundaries of judicial restraint?

We can never know, but we are free to imagine.  Were I a novelist from Yoknapatawpha writing about the case, and were I writing from inside the mind of the judge, here is what I would have my judge thinking, though he might not ever say it out loud:

These lawyers!  These heirs!  These pretenders who bring their presumptive pretentious claims and by them blaspheme the memory of one of the towering geniuses of American letters, a genius who must as the papers were filed in this Mississippi courthouse felt incredulous vertigo so strong as to make the Great One roll in his Mississippi grave, he who so appreciated the ingenious seeds of generations of literary giants from which his own genius grew, he who would not and could not ever dream of suing for the flattery of imitation, he who would have understood that as the past is never dead and is not even past so one might as well imagine the ghost of Shakespeare coming to life to bring suit in Stratford for some British filmmaker putting in the mouth of a character the words “The essential question of existence, as Shakespeare posed it, is ‘to be or not to be.’  And I believe he’s right!,” he who would have cursed the lack of imagination, empathy, and respect for the endurance of the well-written word, he who would have cursed those who deem his literary legacy and corporal estate so fragile that they cannot withstand a fleeting reference (reverent or irreverent does not matter) from a New Yorker with thick glasses and a goofy face in a movie about – what else? – the haunting past!  Be gone ye fallen lawyers!  Be gone and with ye dismiss all thy misbegotten writs! 

The fictional Judge Moore, in my mind’s eye, thinks these thoughts while basking in the glowing embers of a fireplace in his Mississippi Delta home, sipping good bourbon, gazing at a shelf of time-worn books, among  them The Common Law by Oliver Wendell Holmes, the Collected Works of William Shakespeare, and a first edition of Faulkner’s Sanctuary.

The next morning, over strong coffee flavored with chicory, he has the good sense to write the opinion actually written by the real Judge Moore.