BY PETER STRAND
Free Speech vs. Copyright Law
Last May, the United States Court of Appeals, 11th Circuit, lifted an injunction that prohibited publication of Alice Randall’s new book, "The Wind Done Gone," a novel that "alludes" to Margaret Mitchell’s classic novel, "Gone With The Wind." The Court of Appeals found that the injunction against publication of "The Wind Done Gone" was an unlawful prior restraint, which violated the First Amendment.
On the heels of the Court’s ruling, Houghton-Mifflin quickly distributed "The Wind Done Gone." Within a couple of weeks, it broke into the New York Times top 10 best seller list.
What is the controversy about? Sun-Trust Bank, the trustee for Margaret Mitchell heirs and the owner of the copyright of the well-known novel "Gone With The Wind," sued Houghton-Mifflin to stop publication of "The Wind Done Gone," claiming that Randall’s book infringed the copyright in "Gone With The Wind."
"The Wind Done Gone" is the retelling of the "Gone With The Wind" story from the perspective of a female slave, Cynara, the daughter of Planter, the master of the plantation. Cynara, the narrator, is the half-sister of "Other" (Scarlet O’Hara), and the wife of "R," also known as Debt Chauffeur (Rhett Butler) after he leaves Other. Cynara and Debt then live together in post-war Atlanta.
Sun-Trust convinced Federal Judge Pannell that Randall’s book included whole passages lifted from "Gone With The Wind." Judge Pannell determined that Randall took too much from "Gone With The Wind" and, therefore, infringed the copyright.
Houghton-Mifflin and Ms. Randall, supported by a long list of distinguished American writers, including Harper Lee and John Irving, argued that the book was simply social commentary, parody and a rewriting or retelling of the story from the slave’s perspective, all of which was designed to debunk and attack the Margaret Mitchell "Gone With The Wind" notion of the happy slave and the benevolent slave owner.
The confrontation highlighted the ongoing tension between the First Amendment, which protects the right of free speech, and copyright law, which protects the rights of authors, songwriters, artists–anyone who creates an original work. The United States Copyright Act generally reserves all rights in a work to the author (or the copyright owner if the author has transferred the copyright). These rights include the right to reproduce (copy), distribute (sell), make derivative works (sequels, movies from books, etc.), perform, display and, perhaps most importantly, do nothing with the work. These rights are not absolute, and copyright law includes a fair use concept that some uses, although otherwise infringing, are permitted. These fair uses include library and educational use, criticism, comment, news reporting, scholarship and parody.
The parody exception allows use of another’s work, but only to the extent necessary to call to mind the original work, because parody is a means of promoting discussion and criticism, central to the effectiveness of the First Amendment. The parody fair use defense was most recently upheld by the United States Supreme Court in 1994 when it ruled that 2 Live Crew’s reworking of the Roy Orbison song "Oh Pretty Woman," as "Big Hairy Woman You Need to Shave That Stuff" was parody and therefore permissible fair use despite the publisher’s objection.
The 11th Circuit Court of Appeals did not analyze the fair use arguments to decide the fate of "The Wind Done Gone." Rather, it invoked the First Amendment and decided that prior restraint, i.e., prohibiting publication, was not permitted. Houghton-Mifflin apparently decided not to hedge its bets. It uses the paper book jacket to continue to argue its case. The phrase "The Unauthorized Parody" is printed on the jacket spine and the top of the front cover has the banner: "A provocative literary parody that explodes the mythology perpetrated by a southern classic."
The First Amendment also prevailed over rights of publicity and privacy in the case of Dustin Hoffman v. L.A. Weekly Magazine. Hoffman was awarded $3 million in a lawsuit against L.A. Weekly Magazine, for infringing his right of publicity by pasting his head in his "Tootsie" makeup, on a photograph of a woman wearing a red gown. The photograph was part of a "spoof" by L.A. Weekly of the fashion world and referenced several famous movies, including "Gone With The Wind." The Ninth Circuit Court of Appeals, held that the ads were part of a protected news story and not commercial advertisements; therefore, the First Amendment permitted L.A. Weekly to use the photograph.
Despite these two decisions, copyright law remains a creator’s greatest protection. The First Amendment trumps almost everything, although one cannot yell 'fire’ in a crowded theatre or incite a riot and plead the First Amendment as a defense. The rights of authors were recently strengthened by Judge Sidney Stein, a federal court judge sitting in Manhattan, New York. Judge Stein ruled that a grant of rights to print and publish a work in "book form" does not include the right to publish a work in "e-book" form. This decision means that authors who contracted with publishers to publish their works as books, retained the rights to publish the book in e-book form. As the owner of that right, an author could make a deal with another publisher or distributor to "e-publish" or digitally distribute the work.
This decision is likely to be a launch pad for claims and lawsuits over similar distribution rights to music, films, photographs, and other works in digital form.
These decisions are consistent in the context of the underlying policy for copyright protection set forth in the Constitution: "to promote the progress of science and useful arts by securing, for limited times, to authors and inventors the exclusive right to their respective writings and discoveries." Allowing authors to profit from and control their works and allowing others the right to criticize, even by parody, serve the Founding Fathers’ ultimate purpose–to make us give a damn.
© 2001 Peter J. Strand