Houghton Mifflin had scheduled the publication of Alice Randall's story, entitled "The Wind Done Gone," in June last year when the lawyers of Margaret Mitchell's estate - represented by Sun Trust Bank -- sought for and obtained a preliminary injunction in April, stopping its publication (Associated Press 2001). Margaret Mitchell was the author of the classic novel and very famous movie, "Gone with the Wind," in 1939 and Alice Randall wrote "The Wind Done Gone" in 2001. The estate's lawyers held that Randall violated the Copyright Law by plagiarizing Mitchell's novel and that it was not simply a case of free speech, as claimed by Randall.
In their court action, the lawyers of the Mitchell estate, implored the estate's exclusive right to the publication of the novel:
without the threat of an injunction to derail unauthorized derivative works of fiction, pirates will be free to mine the rich vein of copyrighted works and only to pay if they strike gold, get sued, and get caught before they steal away."
In granting the preliminary injunction, U.S. District Judge Charles Pannell ruled that Randall's novel borrowed "too liberally from 'Gone with the Wind' and, in so doing, infringed upon the copyright of Mitchell's original work. He elaborated that "The Wind Done Gone" essentially retold "Gone with the Wind," using only a different viewpoint but the same characters and places, and the court viewed this as "unabated piracy (Associated Press)."
Randall argued that she told her story from the viewpoint of Scarlett O'Hara's mulatto half-sister, Tara, and that it was a political parody that had the right to be published. But the federal judge disagreed and said that her "recitation of so much of the earlier work is overwhelming" and thus, constituted un-authorized sequel. To illustrate his point, Judge Pannell said that, while Mitchell's novel ends without describing what becomes her leading and tragic characters, Randall provides that ending in her work. "The right to answer those questions and to write a sequel or other derivative work, however, legally belongs to Ms. Mitchell's heirs, not Ms. Randall."
The Copyright Law
The Copyright Law provides that the author of an original work has the sole right to reproduce, derive, distribute and/or distribute copies of his or her own work (Title 17 Chapter I Sections 106 and 106A). This right extends to the author's estate or heirs, in this case, Mitchell's brother, through the Lawyers for the Mitchell Trusts Committee.
Gone with the Wind" is a love story between Scarlett O'Hara and Rhett Butler with Atlanta as setting and the American Civil War as background. It is an immensely popular novel brought to life by two of the most famous actors and actresses of the time, Vivien Leigh (as Scarlett) and Clark Gable (as Rhett). It sold several millions of copies and many consider it "the best-known book next only to the Bible." But blacks have also long regarded it as racist in deforming and ignoring the cruelty to which black slaves were subjected in plantations.
On the other hand, Randall's "The Wind Done Gone," according to reviews, is a pseudo diary of Cynara, Scarlett's mulatto half-sister (Weaver 2001) and a retelling of part of American history through a literary classic, employing a "vastly overrated, racist melodrama." Scarlett's name was changed to "Other," Rhett referred to only as "R," Scarlett's/Other's cousin as Mealy Mouth, and Bette as Beauty.
The Wind Done Gone" is, first of all, satirical: Cynara meets a black congressman to whom she gets attracted. It is also lyrical as well as "oppressive (Weaver)." The whites and the blacks exchanged places: the plantation's slaves are all wise and diligent and always saving the whiles from their helplessness and clumsiness. The only thing that gave the whites any common sense is at least a drop of "Negro blood." Randall's novel was viewed as her sheer desire to equalize and settle the score for every wronged African-American. Critics did not recognize any "freshness" in her novel, where the characters go overboard and others reveal their having been molded after the 1939 original mold. And the diary mode does not develop the work into a real novel.
Randall said that these deviations did not bother her - what she wanted to do was to "tell the story that had not been told - by doing so in a different point-of-view and altering the personality of Mitchell's characters, rather than creating her own. If Mitchell's theme is survival, Randall's is despair (The Nomad Group 2002). In her work, Randall said she wanted to reveal what was true in those personalities, such as their disgraces, sadness and deceit. She was also quoted by USAToday.com as saying that her objective was to ridicule Mitchell's book, which "has wounded generations of Americans (The Nomad Group)." Her publisher, Houghton Mifflin Company admitted that Randall borrowed from Mitchell's ideas and characters in order to "undermine its myths and make readers question its word (Nomad)."
Randall is an African-American songwriter, and her novel was seen as retelling and criticizing Mitchell's work from a black slave's perspective. Mitchell's lawyers contended that Randall's work was not a parody, which has the protection of the First Amendment, but was, instead a sequel to "Gone with the Wind" and therefore a violation of the Copyright Law. These lawyers argued that "The Wind Done Gone" borrowed substantially from Mitchell's, such as the characters which strongly resemble Scarlett O'Hara and Rhett Butler, and that, as a matter of fact, a sequel had then already existed. This was entitled "Scarlett," and written in 1993 by Alexandra Ripley, but with the approval of the Mitchell estate.
The Novels Compared
Those who read Randall's novel had different reactions. USA Today found it to be "much like Mitchell's" all right. The MSNBC Review saw it as opening a window into "how attitudes about a race evolved in America." But decided that the story of Cynara did not have the same lasting effect as "Gone with the Wind."
Reactions and Support
The filing of the case for violation of copyright elicited different reactions as well.
Randall's fellow writers, such as Pat Conroy, Harper Lee and Toni Morrison expressed their support for Randall (Freedomforum 2001). Historian Arthur M. Schlesinger did not think the book would be suppressed, and instead, thought that Mitchell's estate is, on the contrary, doing a "wonderful job of advertising for Houghton Mifflin."
In an affidavit submitted to the court, Pat Conroy wrote: "I read it with pleasure and laughed out loud at its clever inversions and insider jokes on the themes of 'Gone with the Wind.'"
Toni Morrison, a Nobel laureate, saw Randall's prose as "by turns evocative, wry, plangent."
James Carroll said that the controversial book vividly brought to life the characters of "Gone with the Wind," a rebuttal to "the most damning lie America has ever told itself."
And Henry Louis Gates, Jr. acknowledged "The Wind Done Gone" as a classic parody from the ancient Greeks to the present (Strothman 2002).
Other names included John Berendt, the roots rocker Steve Earle and civil war historian Shelby Foote.
These praises and endorsements - of its merits, its humanity and its humor -- were seen as the "best refutation of Mitchell estate's accusation" and working in favor of Randall and Houghton Mifflin. Houghton Mifflin filed an emergency motion for an expedited appeal, following the April 20, 2001 granting of a preliminary injunction by Judge Pannell, and this motion was granted. In its appeal, Houghton Mifflin Company prayed:
this Court to permit an unprecedented invasion of the copyright owner's exclusive right to authorize derivative works."
The First Amendment
Mifflin invoked the First Amendment in its appeal. The First Amendment to the U.S. Constitution provides that: "Congress shall make no law... abridging the freedom of speech... Or of the press." And that people have the right to speak freely without interference from government. It also gives the press the right to publish news, information and opinions without government interference, and this means (that) people have the right to publish their own newspapers, newsletters, magazines, etc.
Support poured for Randall and Houghton Mifflin on the basis of the First Amendment, such as Microsoft Corporation and media companies, such as The New York Times Company, Dow Jones & Company, The Tribune Company, Media General, and Cox Enterprises. They filed Friend of the Court briefs, endorsing Randall's novel.
Six more advocates filed a Friend of the Court brief that very week that the emergency motion for an expedited appeal was granted. Led by First Amendment lawyer and professor Leon Friedman, they were the PEN American Center, the American Booksellers Foundation for Free Expression, The Freedom to Read Foundation, The Washington Area Lawyers for the Arts, The First Amendment Project, and the National Coalition Against Censorship (Writers Write 2002).
Advocates of free speech felt that if Randall's book continued to be blocked or stopped, it would have disastrous consequences for other forms of media, such as television and…