Court explains improprieties of ‘Wind Done Gone’ ban

From the Fall 2001 issue of The News Media & The Law, page 42.

The Wind Done Gone is a parody of Gone With the Wind and may be entitled to protection as a fair use of the original 1936 classic, the U.S. Court of Appeals in Atlanta (11th Cir.) ruled Oct. 10.

Author Alice Randall transformed Margaret Mitchell’s Civil War epic into “a very different tale,” the court held in a written opinion explaining its May decision to overturn a federal judge’s injunction that had prevented publication of Randall’s novel.

“Randall’s work flips GWTW‘s traditional race roles, portrays powerful whites as stupid or feckless, and generally sets out to demystify GWTW and strip the romanticism from Mitchell’s specific account of this period of our history,” Judge Stanley F. Birch Jr. wrote for the three-judge panel.

To win an injunction, Mitchell’s estate had to show that it was substantially likely to win its claim of copyright infringement and that it would be irreparably harmed by publication of The Wind Done Gone. The injunction, which a federal district court imposed in April, was improper because Mitchell’s estate couldn’t show either of those requirements, Birch wrote.

Because the publisher has a fair-use defense, Mitchell’s estate can’t show that it would likely win its case. The court ruled that there would be no “irreparable” harm because an award of money would remedy any copyright infringement.

The court did not rule on the question of whether Randall’s work infringed on the copyright of Mitchell’s book because it first had to settle the question of whether the prior restraint was appropriate. It remanded the case for trial on the issue of copyright infringement.

Copyright law gives authors a limited exclusive right over their original work. However, people who make “fair use” of a copyrighted work for purposes including criticism and comment are not liable for copyright infringement.

Mitchell’s estate sued publisher Houghton Mifflin Co. in March to stop the publication and distribution of 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 Cynara’s perspective.

Randall’s book appropriates characters, settings and plot twists from Mitchell’s novel and copies “often in wholesale fashion” descriptions from the original bestseller, the ruling says. However, the publisher has a viable fair-use defense because the book copies elements from Gone With the Wind to criticize the original.

“It is hard to imagine how Randall could have specifically criticized GWTW without depending heavily upon copyrighted elements of that book,” the opinion says.

The court noted that the Supreme Court’s definition of “parody” is vague because the high court has suggested the aim of parody is “comic effect or ridicule” while at the same time discussing parody in terms of its “commentary” on an original work.

“We choose to take the broader view,” the ruling says. “We will treat a work as a parody if its aim is to comment upon or criticize a prior work by appropriating elements of the original in creating a new artistic, as opposed to scholarly or journalistic, work.” — MD