Recent litigation between the owner of copyrights in the book and movie Gone With the Wind and the publisher and author of The Wind Done Gone has surfaced a number of important U.S. copyright law and First Amendment issues for which there was little precedent. Among them are the following:
(1) the seeming conflict between the U.S. Copyright Act, 17 U.S.C. 101 et. seq., with its provision for a preliminary injunction barring distribution of an infringing literary work, and the First Amendment, which forbids laws restraining "speech," traditionally defined to include literary works;
(2) the meaning of the "transformative use" defense to copyright infringement as first proposed by U.S. Second Circuit Court of Appeals Judge Pierre Leval in an article in the Harvard Law Review, and as thereafter adopted by the United States Supreme Court in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (114 S. Ct. 1164) (1994); and
(3) whether or not the "parody" defense, previously applied only in music and photography cases, extends to the use of an entire novel and motion picture.
Two recent decisions by the Eleventh Circuit Court of Appeals provide substantial guidance with respect to these issues. See SunTrust Bank v. Houghton Mifflin, 252 F3d 1165, (11th Cir. 2001) (vacating an injunction barring publication of The Wind Done Gone as a prior restraint of speech in violation of the First Amendment of the U.S. Constitution); and SunTrust Bank v. Houghton Mifflin, [NEED "F.3d" CITE], 60 U.S.P.Q.2d 1225 (11th Cir. 2001) (holding that although The Wind Done Gone used "the very same copyrighted characters, settings, and plot" as did the book and movie Gone With the Wind, Id at ___, it appeared from the record on appeal "that a viable fair use defense is available." Id at ____.
THE WORKS AT ISSUE
Gone With the Wind, reputedly second only to the Bible in book sales and the most popular motion picture of all time, is familiar to people on every continent. Alice Randall, an accomplished African American woman1 and author of The Wind Done Gone, first read and loved Gone With the Wind when she was twelve. See A Conversation with Alice Randall, appended to The Wind Done Gone, at 211. When she later reread the book, however, "an enormous question arose : Where are the mulattos on Tara?" Id. Gone With the Wind is a "South without miscegenation, without whippings, without families sold apart, without free blacks striving for their education, without Frederick Douglass." Id. In Gone With the Wind, blacks are "buffoonish [and] lazy, routinely compared to 'apes,' 'gorillas,' and 'naked savages.'" See Declaration of Alice Randall.2
In order to "add [her] voice" to the debate, Ms. Randall decided, in the words of her Houghton Mifflin editor, Anton Mueller, to "skewer [Gone With the Wind] for its treatment of African Americans." (Mueller Decl.). As the device for doing so, Ms. Randall chose parody - as opposed to academic criticism - because it would reach a wider audience. Parody, a literary device used to criticize or ridicule another literary work, is at the heart of African American expression. As Harvard Professor Gates testified: "It is a creative mechanism for the exercise of political speech . . . on the part of people who feel themselves oppressed and wish to protest that condition . . . . African Americans have used parody since slavery to 'fight back' . . . ."
In pursuing her goal, Ms. Randall faced a daunting task for at least two reasons. First, Gone With the Wind covers three periods of history in which the portrayal of blacks progressively worsens:
Blacks in the ante-bellum South "would sit in the kitchen all day, talking endlessly about the good old days when a house nigger wasn't suppose to do a field hand's work." Gone With the Wind at 432.
During and immediately after the Civil War, many blacks are described as "apes" whom Scarlett would have liked to have "whipped until the blood ran down their backs." Gone With the Wind at 589.
By Reconstruction, blacks are portrayed as "creatures of small intelligence" who "like monkeys or small children ran wild." They "spent most of their time eating goobers and easing their unaccustomed feet into and out of new shoes." Emancipation "just ruined the darkies." Gone With the Wind at 639, 654, 904.
To parody Gone With the Wind at the first level, therefore, Ms. Randall did not believe she could not stop with ante-bellum characterizations of blacks, because "blacks during the Civil War are depicted in even more demeaning terms"; likewise, she could not "stop with the treatment during and immediately after the war, because blacks during Reconstruction are then represented in the most derogatory fashion of all." (Randall Decl.).
Second, while Gone With the Wind created, in the words of the plaintiff's expert, a "historical myth" (Rubin Aff.), it did so in the form of a novel of over a thousand pages containing more than 150 characters, many of whom stand for a black stereotype or represent a white Southern "ideal."3 At the second level, then, Ms. Randall could not parody the "Old South" generally because, in Gone With the Wind, the "Old South" is not presented generally: rather it is a construct of many individual characters. Thus, Ms. Randall could not parody only the stereotype represented by Jeems, because, as reflected above, different and distinct stereotypes are represented by Pork, Mammy and Prissy. And Ms. Randall could not parody only the "ideal" represented by Ellen, the mistress of Tara, because different "ideals" are represented by Scarlett, Gerald, Ashley, Melanie and Rhett. As Candler Professor of English Literature at Emory University John Sitter testified: "Given the scope of both its parodic intent and its parodic object, [The Wind Done Gone] could not effectively parody [Gone With the Wind] without making numerous allusions." (Sitter Supp. Decl.)
In essence, Ms. Randall turned "everything upside down and inside out," constructing black characters and deconstructing white characters.4 To illustrate, in The Wind Done Gone:
The slave Garlic (Pork) "got more education standing in Harvard Square" than did his master attending classes; is the architect of Tata; "saves Tata through his cleverness"; and ultimately is its "master." (Sitter Decl. and Sitter Supp. Decl.).
Mammy sleeps with Planter (Gerald O'Hara), manipulates "Lady" (Ellen O'Hara), and is the "polar opposite of the loyal and selfless" slave. (Sitter Decl.); (McCaskill Decl.).5
Scarlett is reduced to "Other," a radical inversion in that "members of a minority are considered to be the Other in literature." (Sitter Decl.). Her ancestor is black; she has "the pragmatism of a slave"; and she is "not the object of male desire." She is a "drab," "oblivious" character "deliberately kept in the background." "Other never knew what she wanted, so she never had it even when she...