"The Wind Done Gone": Copyrights vs the 1st Amendment

Great Debates
1

This issue requires some FACTUAL information that I don’t possess… but even if you don’t have that knowledge, feel free to offer some opinions anyway.

Currently, there’s a legal batter over a satirical novel called “The Wind Done Gone.” It’s supposed to be a comic re-telling of “Gone with the Wind,” from the point of view of the slaves. Naturally, Scarlett & Rhett will be less heroic and more stupid; the slaves, of course, will be infinitely smarter than their dim masters.

Now, if Margaret Mitchell’s characters were in the public domain, this wouldn’t be a problem. Many famous fictional characters ARE in the public domain, and a parodist could (I THINK- correct me if I’m wrong on the legalities here!) write a novel presenting Count Dracula as a dunce, Sherlock Holmes and Dr. Watson as gay lovers, or Robinson Crusoe as a pimple-faced nerd… and there’d be nothing anybody could do to prevent that. From what I’ve read, “Gone With the Wind” SHOULD be in the public domain by now, but Margaret Mitchell’s family was given a special copyright extension.

Now, first, if there are lawyers out there, I’m curious about the extent to which copyrights protect against satire. Do different media enjoy different degreees of protection?

Let’s start with music. Let’s say that Weird Al Yankovic wanted to do a parody of a new song by Bruce Springsteen. Al has every legal right to write silly lyrics and set them to any Springsteen tune he wants. He doesn’t have to ask Bruce’s permission (though, being a nice guy, Al almost certainly WOULD ask Bruce for permission)- but if he used a Springsteen melody, he WOULD have to pay Springsteen royalties.

Or what about movies- when the Wayans brothers made “Scary Movie,” they PROBABLY didn’t seek permission from Wes Craven to steal whole scenes from “Scream.” On the other hand, the Zucker brothers DID buy the rights to the screenplay of an old, cheesy disaster movie called “Zero Hour,” since their satirical film “Airplane” is partly based on that movie.

Were the Zucker brothers right to pay for the rights to “Zero Hour,” or would they have been within their rights to make a movie with the same plot, just so long as it was intended as a satire?

Now, to the field of publishing- SUPPOSE that the author of “The Wind Done Gone” had gone the Mad Magazine route. Suppose that, instead of using the actual characters of Rhett Butler and Scarlett O’Hara, she’d called them “Blecch Bumbler” and “Scarface O’Malley,” who lived on a plantation called Terror. Would THAT have been okay, or would the Mitchell estate still have had the opportunity to squelch it?

For that matter… I’ve seen numerous “Gone With the WInd” parodies over the years. For example, there was an old “Tonight Show” sketch in which Rhett Butler (Johnny Carson) was carrying on a gay affair with the black footman, who carried Butler up the stairs to bed. Millions of people saw that sketch, but as far as I know, the Mitchell estate never raised any objections. Was Johnny Carson legally entitled to make fun of these characters, while novelists are not?

Does the AGE of the novel in question matter? It DOES seem as if a novel that’s been around as long as “Gone With the Wind” is fair game. But what if I wanted to write a comic novel portraying Hannibal Lecter as a blithering idiot who can barely tie his own shoes (hardly the criminal mastermind he thinks he is)- would/should THomas Harris stand for that?

Or, given the sheer omnipresence of Harry Potter, would I have the right to write a Harry Potter Book… provided that I told the story from the point of view of his “evil” teachers?

2

You can’t use another persons characters.
You can however make parodies of them.

3

Interesting article discussing the ruling about The Wind Done Gone.
http://www.salon.com/books/feature/2001/05/02/wind/index.html

Personally, I think that satirists should have the right to use whatever characters they like. I fail to see how this book would hurt sales of Gone With the Wind and the sequels that are still being written. By generating more interest in the series they might even help sales. Overall, the novel will probably have more respect if there’s a high-profile novel written about the same events from a different perspective. So if the satire isn’t doing financial damage to the original, why should it be banned?

4

Parody and satire are protected speech.

Hell, Hustler got away with portaying Jerry Fawell haveing sex with his mother in an out-house because is was deemed parody. And he’s a real person (sort of).

From what I’ve read of the case (not all that much, I could be wrong) the issue (and the only issue they can bring up) is plagerism.

They’re not saying “The Wind Done Gone” satirizes or parodies “Gone with the Wind” but that it lifts whole bits of prose, story points, plot etc. from GWTW and does not alter them enough to constitute a new work.

“The Wind Done Gone”'s people say it is altered.

I believe that is the crux of the matter.

5

From my reading (“The Road To Tara” - biography by author forgotten), it’s clear that Margaret Mitchell herself was very determined about copyright and protecting her book and its characters. Her estate is acting in accordance with her wishes.

She would have despised this new version.

Myself, I always thought GWTW and “The Colour Purple” would make a GREAT double bill/marathon. The latter is such a corrective.
Bonnie Blueboss

6

A Supreme Court ruling a few years ago on ‘2 live crew’ established the exception to the copywrite law. They had recorded a take-off of “Pretty Woman” without permission. They won the right to use copywrited material as a parody on 1st amendment grounds.

Since I had written some parodies for my professional organization, they, anong many others, signed on as friends of the court, supporting 2 live crew’s position. A number of well-known, professional entertainers did the same.

Frankly I have mixed feelings about the ruling. One the one hand, it feels like songs or popular books are in the public domain. There was a political battle about 5 years ago over whether the Girl Scouts need to pay for the right to sing copywrited songs. ITR’s position is no doubt widely held.

However, shouldn’t the creators own their work? Don’t they have the right to not just profit from it, but to control it? And, where does it end? E.g., can software companies copy parts of Microsoft software?

I hope the GWTW case goes to the Supreme Court, because it would give them a chance to clarify their 2 live crew decision.

7

In Campbell v. Acuff-Rose Music, Inc. 114 S.Ct. 1164, (the “2 Live Crew”) case, the Supremes came down pretty solidly on the side of parody. Writing for a unanimous Court, Justice Souter said that Souter 2 Live Crew’s “Pretty Woman” mocked the original version’s “naiveté,” and was a commentary or portrait of street life. Parody, said Souter, may “…quite legitimately aim at garroting the original, destroying it commercially as well as artistically.”

It’s hard for me to understand how “The Wind Done Gone,” lost this round in federal court… but this is why we have appeals courts. I suspect the Eleventh Circuit Court of Appeals will set things right.

  • Rick
8

Is it racist to like GWTW? I hope not…

9

Y’know, ol’ Whatsername could’ve written an anti-Antebellum South, anti-slavery screed (and what a controversial work THAT would have been) and made all the pre-1860 white folks look stupid and all the enslaved people look like budding Einsteins, WITHOUT using Mitchell’s characters. Make up your own, Toots…you’re expressing creativity by writing a novel in the first damn place, so why not go all the way?

But she’d’ve sold about six hundred copies. Using Scarlett and Rhett assured her of media attention and loads of potential book sales. It’s a cynical ploy, but practical.

But by using those characters she loses, in my eyes, the “I just wanted to set the record straight” argument and leans towards “I just wanted to make a bunch of money.” Tough to take the moral high ground that way.

10

I want to use this oppertunity to complain about copyright extensions. Specifically, I think they are BS. When copywright law was set up in this country, it was with the understanding that artists have a right to make a living off of their work, there comes a point where work passes into the public domain and becomes part of the world’s artistic heritage in general.

Copyright gave people the first shot at profiting off their work. It also acknowledged that after a certain point, work takes on a life of it’s own. Extending copyright past the lifetime of the artist is BS. The artist is no longer there to profit! Who cares about Margaret Mitchell’s wishes…she’s dead! She certainly doesn’t! Her family ought to go get jobs like everyone else instead of living off granny’s book.

Extended copyright ultimatly stagnates the artistic progress of the world. With it, people can sit on one piece of work for the rest of their lifetime and not produce more. With it, companies like Disney can sit on Mickey Mouse for the better part of a century and not have to innovate. It also turns art into a moneygrab. While artist’s ought to be able to make a decent living off of their work, creative works are also “gifts to the world”. Finally, extended copyright ignore the fact that all art is ultimately derivitive. No art exists in a vacuum…it exists in the context (and influenced by) the art that existed before it.

11

Ukelele Ike, I don’t think that using the GWTW characters proves that “The Wind Done Gone” author was capitalizing on GWTW instead of parodying it. Parody is used by authors, playwrights, scripwriters, and songwriters BECAUSE the characters, setting, etc. of the original work are familiar and evoke certain feelings in the audience and the author/writer of the parody wants to take EXACTLY those familiar things and the feelings they generate and twist them or turn them upside down to create a different feeling.

Using any old characters and setting in a generic “anti-Antebellum South, anti-slavery screed,” rather than the specific GWTW characters and setting, wouldn’t work since the author’s very point is (presumably) to show that the revered characters and settings of GWTW are actually a Potemkin village hiding more sinister and less noble things.

12

Okay, so Mitchell’s book “worked,” who did she steal her characters from?

13

Any inherited assets in your family? Inherited money? Ever? How damned unfair! You’re depriving someone else of something surely.

I inherit the copyrights of my SO’s books. After me, my kids do. I view it as a family business. We don’t write to give the work away. We write to make a living, just like anyone else who works. Without copyright and the ownership of the associated rights, I assure you that most writers would go and get a Real Job.

And if you want to take this to the pit, I warn you, I’m more than willing to scream at people who think that creative work doesn’t belong to the originator or shouldn’t belong to the originator or should be in the public domain just because they like the work.

14

I can think of three books (ok, one’s a play) that rely upon the characters and to some extent the plot of other works: “Rosenkrantz and Guildstern are Dead” by Tom Stoppard (“Hamlet”), “Mary Reilly” by Valerie Martin (“Dr. Jeckyl and Mr. Hyde”), and “Wicked: The Life and Times of the Wicked Witch of the West” by Gregory Maguire (“The Wizard of Oz”).

“Mary Reilly” probably works the best as a comparison to “The Wind Done Gone,” as it depicts the events that occur in the source book and presents them from the point of view of a minor and previously voiceless character. I should mention that Valerie Martin’s book is considerably better crafted than the funky movie that was based on it.

In each case, the original work has become so well known that I would bet that the average English speaking person could identify the general plot and major characters even if he/she has not read the book.

The author of “The Wind Done Gone” seems to have two goals. First, a look at the South during the Civil War and Reconstruction. This, as Ike points out, could be accomplished using completely new characters and settings. However, the author is also looking to explore how we, as a society, have come to understand and interpret (and I assume she’s challenging this understanding and interpretation) this period as a result of the cultural icon that is “Gone With the Wind.” Not only is she taking issue with the ideas represented in GWTW, she is also looking at the impact the book has had upon our culture. Since I obviously haven’t read the book in question, I have no idea if the author is successful or innovative, but I think the direct reference to the original work is a valid part of such an exploration.

If memory serves, another author recently encountered a similar situation. Mark Frost wanted to write a thriller using Sherlock Holmes as the main character, but copyright prevented him from doing so. His solution was to re-write his book, only using Arthur Conan Doyle as his main character. (The book, “The List of Seven,” was a moderately good read, although the sequel was terrible.) In the case of “The Wind Done Gone,” would the author encounter the same objections if her book was about an elderly black woman telling stories about her life during the Civil War to a young Margaret Mitchell?

15

Delphica, here’s another: Wide Sargasso Sea by Jean Rhys (Jane Eyre).
And I recall that someone wrote Arthur Dimmsdale (The Scarlet Letter).

16

Oh, sure…there are lots more, too. Nicholas Meyer’s THE SEVEN PER-CENT SOLUTION, starring a stolen Sherlock, back in the 70s, and more recently that chick writer’s AHAB’S WIFE. And the “sequel” to WUTHERING HEIGHTS. And the Mitchell Estate-approved “sequel” to GWTW, SCARLETT.

I really hate those damn things. (Well, okay, I liked R & G ARE DEAD.)

The author says “I’m commenting on a cultural icon!” but what I hear is “I’m using a type of literary shortcut to get the reader response I want without having to work at it!”

17

YOu know, I really WANT to read TWDG. I loved GWTW, and I would love to read the story from a different perspective.
Scarlett sucked. I mean, it was good as a story itself, but not as a sequel. I did like reading about Ireland and stuff, but come on!

I think that she should call it a satire and have done with it. Is the book available, or not? I want to read it!

18

And there’s Laura Kalpakian’s Cosette, an attempt at a sequel to Les Miserables. It’s out of print now, but I have a copy. It sucks on toast.

Guin, I’m pretty sure TWDG isn’t available yet – which kinda puts a damper on this discussion, doesn’t it? :wink: I’m actually curious about it, too…

19

Well Ike, I liked your earlier posting so much that I hate to come in here and be a smart-arse, but in that rattling good read that is GWTW there is an awful lot of

  • Jane Eyre
  • Vanity Fair (although Peggy (Miz Mitchell to you) said she’d never read it, I think she had sort of picked it up through the culture in general, and possibly saw the early 30’s technicolour feature with the awful Miriam Hopkins).
  • her family’s stories about The War
  • her first husband (basis for Rhett B)

However I would not use the word “steal”. She had enormous integrity, even though today so much she wrote about southern blacks seems very wrong. She cared a lot about being fair to other authors.

But your earlier posting put it best.
Redboss
[sub]I ain’ no fiel’ han’ Miz Scarlett![/sub]

20

astorian in the OP mentions the examples of overt, broad MAD-style parody: MAD was itself involved in a court case on parody rights back in the 60s).

I seem to recall the publicity preceeding this desision as being that TWDG was “GWTW told from the slaves’ side.” If so, this is beyond parody. Then I could see the argument of the Rights-holders: That it is more than just using the identifiable characters or the setting to make a point, but rather it’s a “competing” version of the same book. Although frankly, dear, I don’t see how this one would threaten the viability of the original.