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If you read it anyplace else, it's not Really Legal!
Zick Rubin’s columns on the lighter side of publishing and intellectual property law.
The Suit's Done Gone
I guess what really troubles me is killing off Miz Scarlett,” admitted the judge at a hearing in an Atlanta courtroom a little over a year ago as he peered out from the bench at my client, Alice Randall, the author of “The Wind Done Gone.”
“He must have been joking,” I told my client. “I don’t think so,” she said. The judge wasn’t joking.
“The Wind Done Gone” is a searing parody of “Gone With the Wind,” viewing Tara through the eyes of its slaves. The heirs of author Margaret Mitchell were complaining of copyright infringement.
In his order blocking the publication of “The Wind Done Gone,” federal District Judge Charles A. Pannell Jr. harked back to the killing off of Scarlett.
“By killing two core characters from ‘Gone With the Wind,’” he wrote, “’The Wind Done Gone’ has the immediate effect of damaging or even precluding the Mitchell Trusts’ ability to continue to tell the story of Scarlett and Rhett.” After all, the judge reasoned, in a bizarre exercise of literary realism, if Scarlett is killed off in an unauthorized parody, how could she ever be brought back to life in a red-blooded, authorized, rake-it-all-in sequel?
In the judge’s view, “The Wind Done Gone” brazenly invaded the trusts’ territory – something like General Sherman’s march through the South itself – leaving in its wake a battered husk of a 65-year-old Southern classic whose colossal earning power would be diminished. The only way to prevent the carnage, the judge concluded, was to stop the presses. As for Randall’s First Amendment right to provide an antidote to the racism of “Gone With the Wind” – frankly, the judge didn’t give a damn.
This sorry episode in jurisprudence came to an end earlier this month when the Mitchell Trusts and the Houghton Mifflin Co., publisher of “The Wind Done Gone,” announced a settlement, providing that the case would be dismissed and that “The Wind Done Gone” may continue to be published as “An Unauthorized Parody.”
The dismissal was more or less inevitable ever since last May, when the federal Court of Appeals for the Eleventh Circuit, also in Atlanta, overturned Judge Pannell’s injunction, calling it an affront to the First Amendment. Although the appeals court sent the case back to the lower court for further proceedings, the appellate judges clearly believed that the “The Wind Done Gone” would be protected by the venerable doctrine of fair use, which allows a measure of copying for purposes of criticism and commentary.
And fair use it is. More than just a stinging critique, “The Wind Done Gone” turns “Gone With the Wind” upside down. At Tata, the angelic Melanie (Mealy Mouth in Randall’s version) turns out to be a murderer, Ashley Wilkes (Dreamy Gentleman) is gay, the slaves outsmart the slave owners, and Rhett (R) leaves Scarlett (Other) and marries her mulatto half-sister Cynara. And Other is indeed transported to the great white plantation in the sky.
As viewed by the Court of Appeals, “The Wind Done Gone” did not ride on the coattails of “Gone With the Wind.” Rather, as Judge Stanley Birch put it, Randall, “conscripted elements from ‘Gone With the Wind’ to make war against it.” In a concurring opinion, Judge Stanley Marcus emphasized that the Mitchell heirs “may not use copyright to shield ‘Gone With the Wind’ from unwelcome comment” – an endeavor that would turn intellectual property protection into censorship.
The real question is not why the Court of Appeals allowed “The Wind Done Gone” to see the light of day, but why Judge Pannell banned it in the first place. The answer seems to lie in the continuing adoration of Scarlett and “Gone With the Wind” as emblems of Southern virtues, even three generations after the book was first published.
In his written opinion, the judge chided Randall for pirating “Ms. Mitchell’s beloved characters and their romantic, but tragic world.” Even a judge who, we must presume, would have no sympathy for contemporary acts of racism saw only “beloved characters,” not virulent racism, in “Gone With the Wind.”
“The more I see of emancipation the more criminal I think it is,” says Scarlett in “Gone With the Wind.” “It’s just ruined the darkies.” The killing off of Scarlett by an African-American author in “The Wind Done Gone” is, in a way, an act of literary revenge.
Despite the unauthorized offing of Scarlett, “Gone With the Wind” will survive. If the Mitchell guardians wish to resurrect Scarlett in an “authorized sequel,” they will have the right to do so. And because an appeals court overturned a judge who was smitten with Miz Scarlett, copyright protection will continue to coexist with the freedom of expression that is guaranteed by the First Amendment.
Copyright © 2002 by Zick Rubin