Throwback Thursday: The Wind Done Gone

Instead 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:

1. The purpose and character of use
2. The nature of the copyrighted work
3. The amount and substantiality of the portion taken
4. The effect of the use upon the potential market for the copyrighted work

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.