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‘Wind Done Gone’ author seeks right to parody classic

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From the Summer 2001 issue of The News Media & The Law, page 25.

From the Summer 2001 issue of The News Media & The Law, page 25.

The U.S. Court of Appeals in Atlanta (11th Cir.) may establish new limits on literary expression in a case involving the prior restraint on publication of a book that retells Gone With the Wind from a slave’s perspective.

The case, which was brought by author Margaret Mitchell’s estate, tests the right to expression under the First Amendment against the rights to protect expression under copyright law.

The appeals court in late July had not issued its final, written decision in the copyright infringement case, in which an author created a parody of Mitchell’s Gone With the Wind, but the court overturned a preliminary injunction that had prohibited the publisher from releasing the book.

“This is one of the first cases in which the court is somewhat persuaded by the argument that there are cases in which the First Amendment may override the Copyright Act and actually give someone a constitutional right, for example, to make a sequel or a parody even if that would not technically be a fair use under the copyright laws,” said professor Thomas Cottor, who is the director of the intellectual property program at the University of Florida Law School.

On May 25, the U.S. Court of Appeals in Atlanta (11th Cir.) lifted a court order against Houghton Mifflin and allowed it to publish and distribute The Wind Done Gone, a parody of Mitchell’s novel. Author Alice Randall wrote The Wind Done Gone, which chronicles the life of Cynara, a mixed-race daughter of a Southern planter, and Mammy, a slave. The novel is written from the daughter’s perspective.

“I think this case presents a compelling argument that this would be a prior restraint,” Cottor said. “Pretty clearly the Mitchell estate didn’t want the work to be published because it raises some uncomfortable ideas about what life was like in the pre-Civil War South. They are trying to use copyright as a tool of censorship. That isn’t the way it is supposed to work.”

Joseph Beck, an attorney with Kilpatrick Stockton in Atlanta, which represents Randall, expected that the court would address the intersection of the First Amendment with copyright law in its final opinion. Martin Garbus, an attorney with Frankfurt Garbus Kurnit Klein & Selz in New York, which represents the Mitchell estate, said they will wait for a final decision from the appellate court. Attorneys for the estate have argued that the parody takes too heavily from Gone With the Wind.

“You can have a parody, but if you take too much it’s a copyright infringement,” Garbus said. “That’s it. Too much material has been taken.”

Randall spoke about and read from her book at a Washington, D.C., area bookstore on July 11. Randall defended her work as a parody and said the main characters in her book do not exist in the original.

“From the moment I read Gone With the Wind, I was never distracted from its fundamental ugliness,” Randall said. She said one of the reasons she wrote The Wind Done Gone was “to ridicule and criticize Mammy in the first book. I think Mammy was enslaved in those other pages.”

Randall said the title of the original suggested that the good times were over, whereas her title, The Wind Done Gone, meant that bad times were over.

Beck said “copyright infringement protects against copying. This book inverts the characters, completely changes the tone and ridicules the sentiment of Gone With the Wind. That’s what parody classically defined does. It is not necessarily knee-slapping humor. It’s ridicule and sarcasm.”

Stephanie Gore, a professor of law at Florida State University, said the best way for authors to avoid copyright infringement is to target their work as a criticism of the original and use only enough from it to call to mind the original work for the parody.

“It is reviewed and evaluated on a case-by-case basis. There is no hard and fast rule about when someone has crossed that line,” said Gore, who teaches copyright law. The Wind Done Gone case, she added, showed the difficulty in determining whether a parody had infringed upon a copyright.

The appellate court rejected a lower court ruling granting a preliminary injunction as “an abuse of discretion in that it represents an unlawful prior restraint in violation of the First Amendment.”

In its opinion the district court said, Mitchell’s estate failed to show that it would likely prevail in its lawsuit or suffer an injury that would cause an irreparable harm requiring an injunction against publication.

Cottor said that during the last 20 to 30 years courts have almost come to the position that they will presume irreparable harm to issue a preliminary injunction, which would stop publication or distribution, in cases involving intellectual property of any kind whether it is copyright, patent or trademark.

Although the media law community has pressed the First Amendment issues for years, Cottor said that legal scholars in the last five years have begun to question whether injunctions in copyright cases are consistent with the First Amendment.

“Copyright is something of an anomaly because when a court enjoins someone from publishing a parody or sequel they are restraining speech. They are issuing a prior restraint,” Cottor said. “Copyright can and sometimes is being used more as a tool for censoring new ideas than as a tool for encouraging new ideas. That is a troubling development. I think people are beginning to see that and that is where this whole First Amendment issue of preliminary injunctions and prior restraints has begun to be noticed.”

In April, a federal district court granted Mitchell’s estate a preliminary injunction based on its claim of copyright infringement and succeeded in blocking publication.

Mitchell’s estate argued that The Wind Done Gone violated Gone With the Wind’s copyright by copying the novel, while Houghton Mifflin contended that Randall’s novel used general references to Gone With the Wind to parody the novel.

The district court judge agreed with Mitchell’s estate and said, “With the canvas of Gone With the Wind as a backdrop, The Wind Done Gone repeats the story of Gone With the Wind, by utilizing a detailed encapsulation of the older work and exploiting its copyrighted characters, story lines, and settings as the palette for the new story.”

The Wind Done Gone, which has been available since mid-June, was scheduled for an initial press run of 25,000 copies, but since the lawsuit the print run has exceeded 183,000 copies. (Suntrust Bank v. Houghton Mifflin) — AP