The Illustrated Story of Copyright

The Answer Is Blowin' in the Wind

      Upon first reading that a court had enjoined the publication of an unauthorized sequel to/adaptation of Gone With the Wind, I was not particularly alarmed or surprised. Based upon my reading of the facts, it seemed like a pretty much open and shut case for infringement. In the case of Nash v. CBS, the appellate court drew a distinction between takings from works of fiction and nonfiction:

Nash does not portray The Dillinger Dossier and its companion works as fiction, however, which makes all the difference. The inventor of Sherlock Holmes controls that character's fate while the copyright lasts; the first person to conclude that Dillinger survived does not get dibs on history.
Dozens of other cases have upheld copyright in fictional characters and stories, and sometimes more narrowly construed the rights of copyright holders in fact-based stories. Despite the sense that Gone With the Wind is somehow of mythic if not factual origins, it is still under the copyright control of the Mitchell estate.

      I was therefore a bit surprised to see all the editorials and articles making it sound like the case was some sort of inhibition on free expression. Of course, anyone is free to say what they want about the civil war, and even to critique Margaret Mitchell's novel, but that doesn't mean that they are free to use her creation--her characters, her particular setting, even her plot elements--to make their point. I was also surprised when the Court of Appeals lifted the preliminary injunction and allowed the book to be printed.

      This note was written in response to the preliminary opinion from the bench. I might be updating it in light of the more recent final opinion and concurrence.

      Here are some early reflections.

      Since the Supreme Court in the Acuff-Rose case implied that parody was to be granted a wide berth, several courts have strained to protect what they perceive to be parody. (See my book at pp. 192-200.) The district court in The Wind Done Gone case argued that the second work was not technically a parody. I'm inclined to agree (aren't parodies usually supposed to be funny?), but I think the distinction misses a more important point. Parody is given some leeway not because parody is unique among all forms of criticism, but because there is a strong public policy in favor of allowing criticism and comment about works of social importance. There is certainly as much fair use or first amendment value in serious social commentary about a perception of Blacks in the United States as there is in parody per se, so that I don't think the characterization as parody or not parody proves much.

      But even if a second work is eligible for fair use protection, it still has to go through the fair use factors enumerated in the statute and universally embraced by the courts. The lower court found that almost all of the elements weighed against the defendant in this case. The amount taken was substantial--certainly more than was required to "conjure up" the original work. This would seem to be on the "Jack Benny" rather than the "Sid Caesar" side in the amount of the original work taken. (See the book at pp. 193-96. It's also possible that the "conjure up" test is getting short shrift these days, after the Supreme Court case in Acuff-Rose. See my article about the case, Bringing Fair Use Into Focus.)

      And look at the other fair use factors: the taking seems to have a demonstrable effect upon the proven high-stakes market for GWTW sequels. The original work is fictional, and the taking work, while also a serious commentary, is certainly intended to be (and, because of all the publicity, may actually turn out to be) a commercial success.

      It's possible that the appellate court's vacating of the preliminary injunction doesn't really alter the substantive law landscape so much as the standards for granting preliminary injunctions. It's always been a bit of a paradox that preliminary injunctions are more liberally granted in copyright suits than in most other types of cases. Maybe when the appellate court opinion is filed, it won't emphasize the likelihood or unlikelihood of the plaintiff's winning on the merits so much as the inappropriateness of granting pre-publication relief when at least some public policy concerns are raised. As such, the case may simply be another in a recent string of cases suggesting that preliminary injunctions are not the only or the appropriate remedy in many cases. (Take a look, for example, at the Napster and Tasini opinions.)

      Anyway, I'll revisit the whole issue when the court files its opinion in the case.

Read the full text of the District Court opinion.
(Georgia District, April 20, 2001)

Read the temporary appellate opinion
(Eleventh Circuit Court of Appeals, May. 25, 2001)

Read the final opinion
(Eleventh Circuit Court of Appeals, October 10, 2001)

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