Copyright and First Amendment Law After "The Wind Done Gone"

Recent litigation between the owner of copyrights in the book and movie Gone With the Wind and the publisher and author of The Wind Done Gone has surfaced a number of important U.S. copyright law and First Amendment issues for which there was little precedent. Among them are the following:

1. the potential conflict between the U.S. Copyright Act, 17 U.S.C. 101 et. seq., with its provision for a preliminary injunction restraining distribution of an infringing literary work, and the First Amendment, which forbids laws restraining "speech," traditionally defined to include literary works;
2. the meaning of the "transformative use" defense to copyright infringement in a case involving literary works; and