For U.S. District Judge Charles A. Pannell Jr. in Atlanta, the issue was clear and simple.
In “The Wind Done Gone,” Alice Randall writes about the same characters and same events that Margaret Mitchell first described in her iconic novel “Gone With the Wind.” For that reason, Randall’s a pirate, and her book should never see the light of day.
It didn’t matter to Pannell that Randall tells her story from an African-American perspective. It made no difference to him that her goal is to counterbalance the invidious stereotypes of blacks and the rose-colored-glasses view of slavery perpetuated in Mitchell’s still hugely popular 1936 novel and the blockbuster 1939 movie made from it.
“The fact that the two works may present polar viewpoints of the same fictional world fails to mitigate the fact that it is the same fictional world . . .,” he wrote late last month in a 51-page ruling that blocked publication of Randall’s book.
Yet, ultimately, it may be Randall’s radically different view of the world of Tara and Scarlett O’Hara — and its inherent criticism of Mitchell’s perspective — that will make it possible for the book to be published.
The public interest
As lawyers for Randall and her publisher, Houghton Mifflin, gear up to argue their challenge of Pannell’s ruling before the 11th Circuit Court of Appeals in Atlanta, copyright scholars suggest that Pannell may have taken too narrow an approach — seeing the question as simply one of property and ownership. He failed, they contend, to give adequate weight to the idea that the public interest might be served by permitting Randall’s book to be published and her ideas to be aired.
“I don’t see how you could say there is no public interest in having a novel that rebuts the romanticized view of slavery and the Old South,” said L. Ray Patterson, a copyright expert at the University of Georgia in Athens. “For the court to say a black author cannot provide a different perspective of the same era is absolutely absurd.”
In a deposition filed on behalf of Randall, Nobel Prize winner Toni Morrison wrote, “To crush the artistic rights of an African-American writer seems to me not only reckless, but arrogant and pathetic.” She also asked, “Who controls how history is imagined? Who gets to say what slavery was like for the slaves?”
To those questions, Pannell answered that anyone can provide an imagining of the past, either as history or as fiction — but not within the context of the “Gone With the Wind” world. At least, not without the permission of the copyright holder, the Mitchell Trusts, the beneficiaries of which are Margaret Mitchell’s two middle-aged nephews.
Pervasive influence
Yet, the influence of Mitchell’s novel has been so pervasive in the American culture, asserted Wendy Gordon, a Boston University law professor, that “no amount of academic discussion can be as helpful in allowing people to re-imagine that world as a [alternative fictional] narrative. There’s no way I can get Scarlett out of my head. There’s no way I can get Rhett Butler out of my head. All that can help is an alternate narrative imagining.”
At Wayne State University in Detroit, law professor Jessica Litman said, “I think there is room for the appellate court to say: `Hold on!’ The whole point of the book is to talk about a cultural icon. You can’t do that without copying some of Mitchell’s expression.”
Since Randall’s purpose is to critique “Gone With the Wind,” Litman suggested she should be permitted to quote scenes and characters from the work, just as a book reviewer or the writer of a scholarly analysis would. “It’s not enough [for Pannell] to say she used pieces of the book. Well, of course, she did. That’s the point.”
Patterson noted that Pannell is a fairly new federal judge, having been appointed to the bench in 1999 after 20 years as a judge in the Georgia state courts. (His father, Charles Sr., was a longtime Georgia state legislator and later a member of that state’s appellate court for 13 years.) But Patterson said Pannell’s ruling is typical of most lower-court judges who tend to focus solely on the property aspects of copyright law rather than its public interest side.
Rectifying wrongs
Yet, will the appellate court or the U.S. Supreme Court be any different? Joseph Steinfield, a Boston-based copyright attorney, doesn’t think so. “I don’t believe any notion of rectifying historical wrongs is going to carry much weight in the courts,” he said.
Patterson, though, said that the Supreme Court has been more willing than the lower courts to listen to the public interest argument. “Consistently, the U.S. Supreme Court has ruled that copyright is primarily to benefit the public interest and only secondly to benefit the author,” he said.
Some legal observers characterized Pannell’s ruling as a defeat for the 1st Amendment and its protection of free speech. But Martin Garbus, the New York attorney who led the attack for the Mitchell trust, disagreed. Pointing out that Pannell had described Randall’s book as “unabated piracy,” Garbus said, “Napster is piracy. Is that a defeat for the 1st Amendment because Napster is pulled off?”
The two cases are vastly different. With Napster, the issue was the redistribution of exact copies of musical performances without payment to the artists and their publishers. With “The Wind Done Gone,” the “copy” is a radically different work that ridicules the original. In the past, copyright holders have often attempted to use their property right to block criticism and thus inhibit free speech, Patterson said. “The basic issue is whether or not the copyright law insulates `Gone With the Wind’ from criticism,” he said.
Randall’s argument
In arguing the need for a retelling of the “Gone With the Wind” story from an African-American perspective, author Alice Randall presented an Atlanta federal judge with 61 examples of how Margaret Mitchell’s book perpetuated stereotypes about blacks and slavery. Here are three examples:
– Page 37: “Mammy’s lips were large and pendulous, and, when indignant, she could push out her lower one to twice its normal length.”
– Page 307: “She [Scarlett] shook hands all around, her small white hand disappearing into their huge black paws, and the four capered with delight at the meeting and with pride at displaying before their comrades what a pretty Young Miss they had.”
– Page 991: “Mammy waddled slowly up the kitchen steps of Melanie’s house. She was dressed in black from her huge men’s shoes, slashed to permit freedom for her toes, to her black head rag. . . . Her face was puckered in the sad bewilderment of an old ape, but there was determination in her jaw.”
