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Balancing Copyright & Free-Speech Interests in the Courts: Signals from The Wind Done Gone Case

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Jonathan KirschJonathan Kirsch, a publishing attorney based in Los Angeles, is general counsel of the Independent Book Publishers Association and a recipient of its Benjamin Franklin Award for excellence in publishing.

Gone With the Wind by Margaret Mitchell is among the biggest bestsellers in history, second only to the Bible, and the author’s estate has been diligent in protecting the “GWTW” franchise. The original novel is still in print, an equally famous motion picture remains as popular as a TV re-run and a video rental, and two sequels have been published–all with the permission (and, of course, the financial participation) of the copyright owner.

But novelist Alice Randall and her publisher, Houghton Mifflin, did not bother asking the Mitchell estate for permission before publishing The Wind Done Gone, a retelling of the same tale from the point of view of slaves rather than slave-owners. Randall’s revisionist version includes characters, dialogue, scenes, and settings that have been lifted from Gone With the Wind, although Randall clearly gives the familiar story a whole new spin.

Thus, for example, Scarlett O’Hara is known by the plantation slaves as “Other,” Rhett Butler is “R.B.,” Tara is called “Tata,” and Twelve Oaks Plantation is called “Twelve Slaves Strong as Trees.” As seen through the eyes of the characters in The Wind Done Gone, including a former slave called Cynara, “the institutions and values romanticized in GWTW are exposed as corrupt.”

Shortly before The Wind Done Gone reached the bookstores, the estate, in the form of the Mitchell Trust, filed a copyright infringement action and sought to prevent the publication of the book by applying for a preliminary injunction. The case is a classic confrontation between the property interests of a copyright owner and the free-speech interests of an author and a publisher. The outcome of the closely-watched case sends a clear signal to the publishing industry about what the courts will and will not do in striking a balance between these two competing interests.

The Mitchell Trust won an early victory when a federal trial court in Georgia ordered Houghton Mifflin not to publish The Wind Done Gone on the grounds that it amounted to willful copyright infringement of Gone With the Wind. But Houghton Mifflin promptly appealed the initial ruling to the U.S. Court of Appeals for the 11th circuit, which vacated the injunction and sent the case back to the trial court for further consideration of the copyright infringement claims. In the meantime, Houghton Mifflin was free to publish Alice Randall’s book–and it promptly did so.

“The Engine of Free Expression”

Houghton Mifflin successfully invoked the so-called Fair Use Doctrine, a principle of law embodied in the Copyright Act, that permits the use of limited portions of a copyrighted work for certain approved purposes without the permission–or even against the will–of the copyright owner.

Crucial to the case is the simple notion that The Wind Done Gone is not a sequel to Gone With the Wind but, as its author and publisher put it, a “critique” of the famous Civil War novel. And as the court pointed out, criticism is afforded special protection under the Fair Use Doctrine.

The law of copyright, as the court noted, was always intended to be “the engine of free expression.” For that reason, the author is encouraged to write and publish work because his ownership of copyright will ensure “a fair return for his labors,” but the rights of free speech and a free press are also served by limiting the time and scope of copyright ownership.

One important limitation on the rights of the copyright owner is the Fair Use Doctrine, which permits the use of limited portions of a copyrighted work for such approved purposes as criticism, comment, news reporting, scholarship, teaching, or research. Even when criticism takes the form of parody, as it did in The Wind Done Gone, the Fair Use Doctrine still applies.

“The exceptions carved out for these purposes are at the heart of fair use’s protection of the First Amendment, as they allow later authors to use a previous author’s copyright to introduce new ideas or concepts to the public,” ruled the court in The Wind Done Gone case. “Copyright does not immunize a work from comment and criticism.”

The Victim’s Imagination

In fact, the court has suggested that a parodist enjoys the right to borrow elements from a copyrighted work in order to criticize it. “Parody needs to mimic an original to make its point,” the court points out, “and so has some claim to use the creation of its victim’s imagination.”

But parody is narrowly defined in copyright law, and the court in The Wind Done Gone case cautioned against authors or publishers using parody as an excuse for copyright infringement. If an author or publisher borrows material from a copyrighted work only to achieve a “comic effect”–or if the parody is not specifically targeted on the copyrighted work from which the material is borrowed–then the Fair Use Doctrine does not apply.

The Wind Done Gone is not a general commentary upon the Civil War-era American South,” the court explained, “but a specific criticism of and rejoinder to the depiction of slavery and the relationships between blacks and whites in Gone With the Wind.

Notably, the court insisted that it does not matter whether a parody is actually funny. Humor is always in the eye of the beholder: “Whether nor not a work is humorous,” the court dryly noted, “[is] always a wholly subjective inquiry.” Thus the question of whether a parody hits its target, the court seemed to say, matters less than whether the target is the copyrighted work from which material has been borrowed!

Freedom of Speech vs. Economic Self-Interest

Although the court permitted Houghton Mifflin to publish The Wind Done Gone, the case is not yet over. The Mitchell Trust is still entitled to a trial on the merits on its claim of copyright infringement, and the trial court must reapply the various tests that make up the Fair Use Doctrine in light of the ruling from the Court of Appeals. Further appeals are possible, perhaps even likely, since what is at stake here is nothing less than the copyright status of what the court itself concedes to be “one of the most famous, popular, and enduring American novels ever written.”

Then, too, authors and publishers ought not to draw the wrong conclusions from the case. The court did not bestow its blessing to the plunder of copyrighted works under the guise of parody. To qualify a work of authorship as a parody, as the court emphasized, requires an analysis of whether the author succeeded in meeting the complex and exacting standards of the Fair Use Doctrine.

Still the case reminds us that copyright is not sacrosanct. Alice Randall and Houghton Mifflin took a calculated risk in The Wind Done Gone, and the risk paid off–at least so far–because they found their way to a panel of judges who are convinced that freedom of speech is sometimes a higher priority than the economic self-interest of the copyright owner.

“The public interest is always served,” the court concluded, “in promoting First Amendment values.”

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