Scarinci Hollenbeck, LLC
The Firm
201-896-4100 info@sh-law.comFirm Insights
Author: Scarinci Hollenbeck, LLC
Date: October 23, 2014
The Firm
201-896-4100 info@sh-law.comInstead of writing about a case that’s in the news right now, I’d like to take a moment today to appreciate an important case in U.S. entertainment law history. For this “Throwback Thursday,” I’m going to focus on a 2001 case that tested the copyright defense of fair use. The allegedly copied work? Margaret Mitchell’s Gone With the Wind.
Again, briefly, the doctrine of “fair use” in copyright law describes four factors that must be considered when determining whether the use of copied material is fair. These are:
Copyright and parody
One of the most well-known examples of fair use is parody. Copyright law has always had a somewhat uneasy relationship with parody, and in my opinion there are two primary reasons for this problem. First, parody typically requires that larger or more significant portion be taken than in other examples of fair use, so that the intended audience is likely to make the connection between the two works. Second, parody is by its nature irreverent, which may motivate more copyright holders to file lawsuits.
In any case, parody is generally considered a public good, and as such, is protected under copyright law. In fact, the Copyright Law Revision outlined in House Report No. 94-1476 specifically lists the “use in a parody of some of the content of the work parodied” as an example of the “sort of activities the courts might regard as fair use.”
Despite this rather explicit protection, the right of parody to make the fair use defense has been tried multiple times. In the U.S. Supreme Court Case Campbell v. Acuff-Rose Music, Inc. of 1994, the court ruled unanimously that 2 Live Crew was not in violation of copyright law by using the opening melody of the song “Pretty Woman” in making a parody of the song. The court stated, “Parody, like any other comment and criticism, may claim fair use.”
The Wind Done Gone
In 2001, Alice Randall released a parody of Gone With the Wind, titled, The Wind Done Gone. In a subversive style that is sometimes dubbed “palimpsest” or “shadow text,” Randall described the same plantation on which Scarlett O’Hara lived, but from the point of view of her slaves, who are rather glad to be rid of her.
The holders of the original copyright alleged in their case that Randall’s book appropriated plot twists, characters, settings and descriptions from the original, as as such, that the novel amounted to copyright violation. The District Court ruled with the plaintiff and granted an injunction against its publication.
Randall and her publisher appealed, and a panel of three judges of the 11th U.S. Circuit Court of Appeals lifted that injunction, writing that it was an “extraordinary and drastic remedy” that “amounts to unlawful prior restraint in violation of the First Amendment.” It found, despite the fact that the commercial nature of the publication provides an argument against fair use under the second factor of the doctrine, that The Wind Done Gone was deserving of protection in light of its highly transformative use of the copied material.
A final note on fair use. The court of appeals in that case wrote that “the Copyright Clause was intended ‘to be the engine of free expression’.” In other words, rather than hindering free speech with private censorship, copyright law should serve to help connect authors and other artists with the proceeds of their works. Beyond these parameters, copyright law is likely to be overstepping its bounds. I am inclined to agree.
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Secured transactions form the backbone of a wide range of business dealings, including business loans, mortgages, and inventory financing. Because the stakes are often high and relatively minor oversights can have drastic consequences, lenders and borrowers should thoroughly understand how to form an enforceable security agreement that protects their legal rights. What Is a Secured […]
Author: Dan Brecher
Cashing a check marked “paid in full” can be a risky endeavor, particularly if you don’t fully understanding the legal implications. If you are owed more than the amount of the check you accept and deposit, you may waive your right to collect the full disputed amount. That is why you should consider either rejecting […]
Author: Dan Brecher
The One Big Beautiful Bill Act of 2025 (OBBBA) significantly impacts federal taxes, credits, and deductions. A key change relating to Qualified Small Business Stock (QSBS) allows greater tax-free gains for investments in startups and other qualifying small businesses. Company founders and other investors should understand how the enhanced tax strategy works or risk missing […]
Author: Dan Brecher
Corporate consolidation involves two or more businesses merging to become a single larger entity. The result is often a stronger and more competitive company that can better navigate today’s competitive marketplace. What Is Corporate Consolidation? Corporate consolidation closely resembles a basic merger transaction. The primary difference is that a consolidation creates an entirely new business […]
Author: Dan Brecher
Business law plays a critical role in nearly every aspect of running a successful enterprise, from negotiating a commercial lease to drafting employee policies to fulfilling corporate disclosure obligations. Understanding what is business law and your legal obligations can help your business run smoothly and build productive relationships with clients, business partners, regulators, and others. […]
Author: Dan Brecher
Corporate transactions can have significant implications for a corporation and its stakeholders. For deals to be successful, companies must act strategically to maximize value and minimize risk. It is also important to fully understand the legal and financial ramifications of corporate transactions, both in the near and long term. Understanding Corporate Transactions The term “corporate […]
Author: Dan Brecher
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.
Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.
Let`s get in touch!
Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!