Archive for Wednesday, June 6, 2001

Book raises copyright issues

June 6, 2001


Margaret Mitchell's "Gone With the Wind" and the film it inspired starring Clark Gable have become one of the icons of modern American "pop" culture and history. The popularity of the book and the film continues more than a half century after they first appeared. And along with this popularity has come a steady source of income for Ms. Mitchell's family and heirs.

In the last few months this income and popularity have been threatened, or at least Ms. Mitchell's heirs believe it to be so, by the proposed publication of a book by Alice Randall called "The Wind Done Gone." This new work openly and expertly draws upon the earlier book to provide a view of the pre-Civil War South not from the perspective of a wealthy plantation owner but, rather, from the perspective of a black living in the Old South. This proposed new book has led to a hard fought battle in federal courts between the Mitchell heirs and the author of the new book and her publisher, Houghton Mifflin. The Mitchell heirs claim that "The Wind Done Gone" infringes the copyright of Ms. Mitchell in her earlier book through the use of characters by Ms. Randall who were created by Ms. Mitchell.

American copyright law is founded in the U.S. Constitution and is premised upon the notion that authors and artists will be encouraged to engage in creative work if they are permitted to have exclusive economic rights in their creations for a period of time. In effect, the theory behind the copyright laws is that authors would not write books if they could not have the exclusive rights to profit from them for some period.

Over the course of the past two centuries, in fact, the trend has been to extend the period of copyright protection substantially so that not only authors and artists but also their families and heirs can enjoy the exclusive economic fruits of their labors. Further, copyright protection has been broadened to include new types of works and to include aspects of larger works such as characters.

It seems obvious to most observers that the litigation brought by Ms. Mitchell's heirs is not solely born out of their fear that potential readers will buy Ms. Randall's work instead of Ms. Mitchell's. One might suppose that a few people might not be able to distinguish between "Gone with the Wind" and "The Wind Done Gone," but one suspects that this would not happen often.

Instead, the suit seems to be motivated more by the fear that publication of "The Wind Done Gone" would hurt the heirs' rights by making it permissible for others to use Ms. Mitchell's characters without paying for such use. It also seems reasonably clear that the heirs feel that "The Wind Done Gone" might cause people to look upon "Gone With the Wind" with a more critical eye.

The principal character of "The Wind Done Gone" is the half-sister of "Gone With the Wind's" Scarlett O'Hara. Except she is a mulatto and she portrays blacks and their life in the Old South much differently from the portrayal given in "Gone With the Wind." Indeed, the contrast between the two works might well make some readers believe that the portrayal of blacks in "Gone With the Wind" is racist.

The fact is, however, that, at least in my opinion, there is a need for books like "The Wind Done Gone." America and American attitudes to race and ethnicity have changed over the last half century. We are a different and better country now, or at least trying to be. The stereotypes in "Gone With the Wind" are no longer acceptable to many people.

We should not, for that reason, repress the book. It is a part of American history and culture. But at the same time a book like "The Wind Done Gone" can provide a healthy antidote to many of the now unacceptable attitudes and stereotypes portrayed in "Gone With the Wind." To prevent publication of this new book would, in my opinion, be a loss to American literature and culture and the copyright laws should not be used to accomplish this.

Whether this will happen is, at present, an open question. Federal District Judge Charles Pannell ruled at the trial level that publication of "The Wind Done Gone" would cause irreparable harm to the Mitchell heirs and their copyright. Thus, he issued an injunction which would have prohibited Houghton Mifflin from releasing the book. The 11th Circuit reversed this decision and set the stage for publication later this month. But the Mitchell heirs have not accepted this ruling and are now asking for it to be reviewed in a last attempt to suppress "The Wind Done Gone."

We do not yet know what the outcome of this appeal will be nor whether we will all be able to read this new book soon. Only time will tell. We may hope, for the sake of our society's ability to progress, that the volume will soon be in bookstores.

Mike Hoeflich is a professor in the Kansas University School of Law.

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