Criticism of a copyrighted work (which parody is one variety) is often a protected form of free speech. If a parody is challenged as being a copyright infringement, courts will conduct a “fair use” evaluation to determine if the parody is a permissible fair use for the purpose of criticism, commentary and preservation of free speech.
Parody is generally a mocking criticism of another well known work. As you might have guessed, The Wind Done Gone is a parody of the famous American novel, Gone With The Wind. In The Wind Done Gone the plot follows the story line of Gone With The Wind but is told from the viewpoint of Cynara, a mulatto salve on the plantation who is Scarlett’s half sister and Rhett’s mistress. Cynara ends up being freed and continuing her life off the plantation.
When The Wind Done Gone was published, a trustee for Mitchell (the author of Gone With The Wind) filed a law suit claiming copyright infringement and seeking an injunction to prevent the publication and distribution of The Wind Done Gone. The district court granted the injunction, which was appealed. The appellate court issued an order vacating the injunction on the grounds that it was unconstitutional and issued a comprehensive opinion in 2001 which held that The Wind Done Gone was a fair use parody of the novel, Gone With The Wind.
Here a few interesting quotes from the appellate court’s opinion:
[Note that the court uses abbreviations for the titles of both novels. The Wind Done Gone (TWDG) and Gone With The Wind (GWTW)]
It is hard to imagine how Randall [the author of TWDG] could have specifically criticized GWTW without depending heavily upon copyrighted elements of that book. A parody is a work that seeks to comment upon or criticize another work by appropriating elements of the original. “Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination.” Campbell, 510 U.S. at 580-81, 114 S. Ct. at 1172. Thus, Randall has fully employed those conscripted elements from GWTW to make war against it. Her work, TWDG, reflects transformative value because it “can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one.” Campbell, 510 U.S. at 579, 114 S. Ct. at 1171. [**46]
[Note that characters in the two novels have different names which the court references in this next quote. Scarlett is “Other” in TWDG; Rhett is “R.B.” in TWDG; Gerald is “Planter” in TWDG and Pork is “Garlic”]
There are numerous instances in which TWDG appropriates elements of GWTW and then transforms them for the purpose of commentary. TWDG uses several of GWTW’s most famous lines, but vests them with a completely new significance. For example, the final lines of GWTW, “Tomorrow, I’ll think of some way to get him back. After all, tomorrow is another day,” are transformed in TWDG into “For all those we love for whom tomorrow will not be another day, we send the sweet prayer of resting in peace.” Another such recasting is Rhett’s famous quip to Scarlett as he left her in GWTW, “My dear, I don’t give a damn.” In TWDG, the repetition of this line (which is paraphrased) changes the reader’s perception of Rhett/R.B.–and of black-white relations–because he has left Scarlett/Other for Cynara, a former slave. Another clear instance in which a memorable scene from GWTW is taken primarily for the purpose of parody is Gerald/Planter’s acquisition of Pork/Garlic. In GWTW, Gerald won Pork in a card game with a man from St. Simons Island. In TWDG, Planter wins Garlic in a card game with a man from St. Simons Island, but Garlic, far from being the passive “chattel” in GWTW, is portrayed as being smarter than either white character by orchestrating the outcome of the card game and determining his own fate. There are many more such transformative uses of elements of GWTW in TWDG. [**46-47]
The concurring opinion sums it up by stating that The Wind Done Gone is a “book that seeks to rebut a classic novel’s particular perspective on the Civil War and slavery…. its main aim being to shatter Gone With the Wind‘s window on life in the antebellum and Civil War South.”
Arguably exposure to the perspective offered on Civil War and slavery by The Wind Done Gone is a benefit of the First Amendment. Parody and the fair use exception are interesting components of US Copyright Law that highlight the balancing of a copyright owner’s exclusive rights and freedom of speech.
BY: Vanessa Kaster, Esq., LL.M.
See, “Suntrust v. Houghton Mifflin Co., 268 F.3d 1257 (U.S. App. 2001) and Suntrust v. Houghton Mifflin Co.,252 F.3d 1165 (11th Cir. 2001); US Copyright Act § 107 on Fair Use at http://www.copyright.gov/title17/92chap1.html#107 and http://www.copyright.gov/fls/fl102.html; The Wind Done Gone at http://www.amazon.com/dp/B0015MLOYI and Gone With The Wind at http://www.amazon.com/Gone-Wind-Margaret-Mitchell/dp/1416548947; @iplegalfreebies and www.kasterlegal.com.
An interesting fact mentioned in the court’s opinion issued in 2001 is that, “since its publication in 1936, Gone With The Wind has become one of the best-selling books in the world, second in sales only to the Bible.”