"The Wind Done Gone" on Trial
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JIM LEHRER: Finally tonight, the legal battle over the Wind Done Gone. A Federal appeals court today said a lower court was wrong to ban publication of the book, but did not yet decide a key argument of the case: Whether the new book violates copyright law. Gwen Ifill conducted our own legal argument of the case earlier this week, prior to today’s ruling.
GWEN IFILL: Even the title of the book, The Wind Done Gone, owes a debt to Margaret Mitchell’s civil war epic Gone with the Wind. But how much does it owe? That’s the question making its way through the courts right now in a case that pits intellectual property rights against an artist’s freedom of speech. First published in 1936, Gone with the Wind has never gone out of print. Perhaps better known as an Oscar-winning film starring Clark Gable and Vivien Leigh, it has become part of popular American culture.
The new unpublished book with slight name changes of people and place, retells that story from a slave’s point of view, and not just any slave, but Scarlet’s imagined mulatto half- sister. Author Alice Randall says the book is a parody. Margaret Mitchell’s estate says it is copyright infringement.
With us now to explain, Martin Garbus a partner at Frankfurt, Garbus, Kurnet, Kline and Sells, represents the Mitchell estate. He is the author of Tough Talk: How I fought for writers, comics, bigots and the American way. And Joe Beck, lead counsel for Houghton-Mifflin. He is an attorney with Kilpatrick Stockton and a professor of intellectual property law at Emery University in Atlanta. We invited Alice Randall to join us as well but she declined. Mr. Beck, tell us about this book.
JOE BECK, Attorney for Alice Randall: Yes, thank you. And I hope that your viewers soon will be able to read it for themselves. This is a short book. It’s written in the form of a diary, and it’s a parody. Now some people think that parody has to be silly or funny, and there are parts of it this book in the testimony of some great experts that are very funny, but the book primarily ridicules Gone with the Wind and that’s really why they brought in lawsuit — an effective ridicule and effective satire and effective criticism, which, of course, is what the Constitution allows to be done.
GWEN IFILL: For those of us in our viewing audience who have not read the book, what’s the plot?
JOE BECK: Well, the story is about the… As you said, the mulatto half sister of Scarlet O’Hara, and essentially everything is inverted. For example, Ashley Wilkes in Gone with the Wind, we know is the perfect southern gentleman. In Wind Done Gone, he is a very different person. He is gay, he sleeps with a slave. Melanie, the perfect southern lady, is a serial killer. Why does Ms. Randall write the book this way? She wants to show a different perspective. She wants to tell a story that has never been told, and that’s the story of what it was like for African American slaves and newly freed people. Margaret Mitchell, in her version of this story, pictured the slaves, the African Americans, as essentially cartoons. They’re a one-dimensional. And I’m sorry to have to say, but they are sometimes described in terms that today go far beyond what would be acceptable.
GWEN IFILL: Let me let Mr. Garbus respond. Why do you consider this book to be a rip-off?
MARTIN GARBUS, Attorney for Mitchell Estate: What Mr. Beck says is this story has never been told. There are many, many fine authors. There are many fine black authors and white authors who’ve been writing about slavery and the horrible effects of slavery and the consequences of slavery without taking characters from another book. In this book, Ms. Randall takes 15 characters, plots, and sequences. Our experts testify, and our experts are from Dartmouth, Brandeis, reputable southern universities, the head of the Guggenheim Foundation… that the book is basically– and I don’t mean this in a pejorative way– parasitic.
That basically if you took “Gone with the Wind” out of the book, there’s no book left. It’s the case of people reacting to everybody within Gone with the Wind. If you were to open a page there, what you would see is Rhett Butler, Scarlet O’Hara, and they’re the same exact people basically that are in Gone with the Wind. I think the other thing that should be mentioned is that the Constitution talks about copyright. It talks about protecting authors. It talks about giving authors the right to have sequels.
GWEN IFILL: One… In one passage here, Scarlet O’Hara is described as a “vital, black- haired, green bell of five counties. That’s from the original Gone with the Wind. In Alice Randall’s book, the character whose name is other “other,” who is this Scarlet character, is described as “a raven-haired, green-eyed bell of five counties…” “not beautiful but men seldom recognized this..” It seems terribly similar.
JOE BECK: Two points…
MARTIN GARBUS: And that goes to…
GWEN IFILL: I’d like Mr. Beck to respond to this.
JOE BECK: Thank you, Martin. Yeah, there are two points. First of all, when you do something called parody, you have to bring up, it’s called conjure up, the underlying work. We could not describe Scarlet O’Hara as a “blond from San Francisco” and somehow suggest Scarlet O’Hara. We had to call her who she was. But that, what you just quoted, is the only example.
Here is another example of what they called verbatim copying. At the end, Scarlet says, “Tomorrow is another day.” At the end of our book– and they call this “verbatim copying”– she says, Cynara says, “I offer this for those for whom there will be no tomorrow.” Is that verbatim copying? Of course, not. What that is, is parody. In one case, “tomorrow is another day, a hope for the return of the old South” by Margaret, by Margaret Mitchell. And in our book, “for those for whom there will be another day is a prayer for the slaves.”
GWEN IFILL: Well, let’s let Mr. Garbus respond to that.
MARTIN GARBUS: Well, first of all, she has an absolute right to do a parody. This is not a parody. Now it seems to me what Mr. Beck has just said basically proves my point. There is no book without the 15 characters from Gone with the Wind. There is no book without the sequences and the plot from Gone with the Wind. Now every writer has a right to control the sequel. If John Updike has a character called “Rabbit Angstrom,” which he has developed over a number of novels, he has the right to control that story.
JOE BECK: But that’s exactly right as long as…
MARTIN GARBUS: Can I finish? You can’t write Gone with the Wind, for example… There can be another Gone with the Wind. This time it’s the perspective of the next door neighbor. Or it’s the perspective of the Yankee who comes through.
GWEN IFILL: All right, Mr. Beck?
MARTIN GARBUS: Or it’s the perspective of somebody else. So if you believe Mr. Beck’s theory, you could have 15 novels all talking about the same 15 characters.
GWEN IFILL: Okay, Mr. Beck, we really don’t have a lot of time. Let’s let Mr. Garbus…
JOE BECK: I know, and let me just respond quickly. Rabbit Angstrom maintains… He stays in character. That’s what a sequel does. A sequel is a contract with a reader and the next story will be like the last one. If that were a sequel, then Ashley Wilkes must have been gay, Scarlet must have been black, and Melanie must have been a serial killer. Of course, it’s not a sequel, and he knows that.
GWEN IFILL: The Supreme Court has ruled in at least in another case, which is not necessarily related, but I’m curious about what you think the connection is…
JOE BECK: Sure.
GWEN IFILL: …In which 2 Live Crew was accused of plagiarizing the words to Roy Orbison’s “Pretty Woman,” and in fact the Supreme Court ruled on the side of 2 live crew, the rap group.
JOE BECK: That’s right.
GWEN IFILL: Do you not see some similarity here Mr. Garbus?
MARTIN GARBUS: I think you’re wrong, as a matter of law. What the court said was that you can take something for parody, you can only take a minimal amount. There’s no objection to ms. Randall writing a book where she may have Rhett Butler in a scene or she may have Scarlet in a scene. Saul Bello that with James Joyce characters. He even has incidents in James Joyce characters. Phillip Roth writes a book called “The Breath,” which clearly comes from Kafka’s “Metamorphosis.” You have a right to refer to other people.
JOE BECK: You’re exactly right.
MARTIN GARBUS: And you’re absolutely entitled to refer to things. The question is how much have you taken?
GWEN IFILL: Mr. Garbus, would there have been any case in which the Mitchell estate would have agreed to the licensing of a story told from a slave’s point of view about “Gone with the Wind?”
MARTIN GARBUS: Of course. I mean that would have to be presented to them. They have already authorized the sequel, and there’s already been one sequel. There’s another sequel coming out. I think what’s happened is…
JOE BECK: They’ve authorized a sequel of Rhett Butler.
GWEN IFILL: Please, Mr. Beck.
MARTIN GARBUS: The issues have been somewhat obscured because of the racial connotations because Miss Randall is black and because she’s written a book about slavery and because Miss Mitchell is allegedly a racist and Gone with the Wind is allegedly a racist book. Those are not the issues. The issues have to do with an author having control over the right to do a sequel and having the right to the characters that she created.
JOE BECK: First of all you’re right about what the Supreme Court held in the 2 Live Crew case. Ugly Woman was a parody of pretty woman. Secondly, Mr. Garbus just told us that they authorized when you said sequel from the point of view of a slave, you said they authorized one that’s Scarlet. If that’s their idea of the point of view of a slave, I think the answer is obvious.
MARTIN GARBUS: That isn’t what I said, Mr. Beck.
JOE BECK: The other sequel they’ve…
MARTIN GARBUS: What I said is…
JOE BECK: Just a minute. I let you talk, martin. I let you talk, let me finish. What you said in that, in response to her question about a sequel from the point of view of a slave, was we’ve just authorized another one. You know who that’s going to be? That’s Rhett Butler.
MARTIN GARBUS: No, no, we’ve authorized a sequel…
JOE BECK: Excuse me, Martin.
GWEN IFILL: Gentlemen, gentlemen, this is…
MARTIN GARBUS: I didn’t say that, Mr. Beck.
JOE BECK: Rhett Butler is the person that is going to be telling the next story, and if that’s the story of this book, from the point of view of a slave, I rest my case.
GWEN IFILL: Thank you, gentlemen, we’re all out of time. Thank you for joining us.
JIM LEHRER: This afternoon, attorney Martin Garbus said the Mitchell estate will appeal today’s ruling that allows publication of the book. The publisher, Houghton-Mifflin, said it plans to get the book out by the end of June.