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Judge halts publication of “Gone with the Wind” parody

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    NMU         GEORGIA         Copyrights & Trademarks         Apr 24, 2001    

Judge halts publication of “Gone with the Wind” parody

  • “The Wind Done Gone,” meant as a spoof of the stereotypes used in the original work, borrows too much copyrighted material from Mitchell’s book, a federal judge ruled.

Rhett Butler may not give a damn, but the heirs of Margaret Mitchell do.

A suit brought by trustees of the heirs of the “Gone with the Wind” author has halted the publication of “The Wind Done Gone,” a book written by Alice Randall using characters, plot lines and locales created in the 1936 classic.

U.S. District Judge Charles Pannell in Atlanta issued a preliminary injunction on April 19 against the book’s publisher, Houghton Mifflin, which enjoins the book’s “further production, display, distribution, advertising, sale or offer for sale.” Pannell ruled that the Mitchell trusts were likely to succeed with copyright infringement claims against Houghton Mifflin and that without an injunction the trusts would suffer irreparable damage.

“The Wind Done Gone” tells the “Gone with the Wind” story from the perspective of Cynara, the mulatto child of a white master and a black slave. Cynara would be the half-sister of Scarlett O’Hara, the original work’s main character.

Pannell ruled that the trusts have an established copyright in the “Gone with the Wind” characters and that the similarities between the books were substantially similar to a lay reader.

“‘The Wind Done Gone’ uses fifteen fictional characters from ‘Gone with the Wind,’ incorporating their physical attributes, mannerisms, and the distinct features that Ms. Mitchell used to describe them, as well as their complex relationships with each other,” Pannell wrote in his injunction order.

“The new work merely renames some of the characters and settings but otherwise adopts, almost verbatim in many instances, those contained in ‘Gone with the Wind,'” he wrote.

At times, Pannell’s assessment of the adoption by Randall was almost scathing: “‘The Wind Done Gone’s use of these characters, story lines, detailed descriptions of settings … constitutes unabated piracy of ‘Gone with the Wind.'”

Houghton Mifflin argued that the book was a parody that served a public interest by attacking the demeaning portrayal of slaves in the original. Pannell was unpersuaded that Randall’s book was a permissible parody under the fair use doctrine. Fair use allows limited copying of copyrighted works for certain purposes, such as news, education and parody. Pannell ruled that the factors courts use to determine whether a work is a fair use tipped in favor of the trusts.

Most importantly, Pannell ruled that the overall purpose of the new book was to “create a sequel to the older work and provide Ms. Randall’s social commentary on the antebellum South.”

Pannell acknowledged Randall’s right to engage in social commentary on the plight of slaves in the antebellum South, but was critical of Randall’s decision to do this wholly within the context of a copyrighted work instead of in fresh surroundings with entirely new characters.

Pannell also ruled that the amount of copying that Randall did from the original was excessive, even in light of her purported parodic purpose.

“(Randall’s) use does not merely ‘conjure up’ the earlier work,” Pannell wrote, “but rather has made a wholesale encapsulation of the earlier work, copied its most famous and compelling fictional scenes, and appropriated its copyrighted and most noticeable characters.”

This is not the first book written about “Gone with the Wind” characters. However, the 1991 sequel, “Scarlett: The Sequel to Margaret Mitchell’s Gone with the Wind,” was authorized by the Mitchell trusts. A second authorized sequel is planned by publisher St. Martin’s Press. Pannell discussed how St. Martin’s had paid handsomely for the exclusive right to publish the next sequel and how an intervening sequel would lessen the interest in St. Martin’s book.

The case against Randall drew the attention of some well-known authors and musicians. Novelist Harper Lee, author of “To Kill a Mockingbird,” and Civil War historian Shelby Foote, among others, signed a statement in early April that supported Randall’s position. At one point in his order, Pannell addressed a rhetorical query posed by Nobel-prize winning author Toni Morrison, who also supported Randall. Morrison asked: “Who controls how history is imagined? Who gets to say what slavery was like for the slaves?”

Pannell answered, “The question before the court is not who gets to write history, but rather whether Ms. Randall can permeate most of her new critical work with the copyrighted characters, plot, and scenes from ‘Gone with the Wind.'”

(SunTrust Bank v. Houghton Mifflin Co.) DB

© 2001 The Reporters Committee for Freedom of the Press

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