"The Past is Never Dead, It's Not Even a Trademark or Copyright": The Intellectual Property of William Faulkner, Copymarks, and Markrights
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Authors
Hsieh, Timothy T.
Issue Date
2025-07
Volume
58
Issue
3
Type
Journal Article
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Abstract
In the 2012 federal cases of Faulkner Literary Rights, LLC v. Sony Pictures Classics Inc. (Northern District of Mississippi) and Faulkner Literary Rights LLC v. Northrop Grumman Corp. (Southern District of Mississippi), the Estate of William Faulkner alleged copyright and trademark infringement violations over the use of sentences from the legendary Nobel Laureate and southern writer. In the Sony Pictures case, the iconic line of “The past is never dead. It’s not even past,” from Faulkner’s Requiem for a Nun was repeated by a character played by Owen Wilson in the Woody Allen film Midnight in Paris. In the Northrop Grumman case, the line “We must be free not because we claim freedom, but because we practice it” written by Faulkner in an Harper’s Magazine essay that criticized the South’s response to school integration was used in a U.S. flag-bearing Northrop Grumman ad taken out in The Washington Post on Independence Day. Both of these cases and others like Dastar Corp. v. Twentieth Century Fox Film Corp. and American Airlines, Inc. v. Skiplagged, Inc. shed light on the seldom-analyzed boundary between copyright and trademark law and the challenges of determining when a creative expression crosses the line into branding— or vice versa. Building on the concept of a “copymark”—a term coined by Professor Stacey Lantagne referring to a copyright functioning as a trademark—this article proposes the creation of a complementary intellectual property framework known as a “markright” to address situations where trademarks attempt to function as copyrights. By examining these cases, and the broader historical context and theoretical implications, this article advocates for a clearer delineation of the copyright-trademark overlap and the adoption of new frameworks to balance the competing rights in which these liminal spaces operate.
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Publisher
Creighton University School of Law