Co-written by Rachel Fugate
A judge's order halting distribution of a parody of Gone With the Wind violated the First Amendment, a federal appeals court has ruled.
The Wind Done Gone was scheduled for publication this spring when Judge Charles A. Pannell Jr., a United States District Judge in Atlanta, ordered the presses stopped. Judge Pannell found that the book infringed the copyright on Margaret Mitchell's classic Gone With The Wind. Houghton Mifflin Company, publisher of the banned book, had argued that The Wind Done Gone by Alice Randall was protected commentary on the classic Gone With The Wind.
Although agreeing The Wind Done Gone contained transformative elements, Judge Pannell found that the Mitchell Trust, which owns the copyright to Gone With The Wind, was likely to succeed on the merits of its copyright infringement action. He then entered a preliminary injunction prohibiting publication of the book.
Judge Pannell's order immediately sparked controversy and debate within the media industry. As owners of countless copyrights, media institutions understood the Mitchell Trust's reasons for bringing the lawsuit and the trust's economic interest in protecting intellectual property. On the other hand, as publishers of news, editorials, commentary, criticism and parody, the media also saw the importance of protecting freedom of speech.
When Houghton Mifflin appealed to the Eleventh Circuit, a number of media entities sided with free speech and submitted amicus curiae briefs challenging Judge Pannell's order. Briefs were filed by The New York Times Company, Dow Jones & Company, Inc., Media General, Inc., Cox Enterprises, Inc., PEN American Center, American Booksellers Foundation for Freedom of Expression, Freedom to Read Foundation, Washington Lawyers for the Arts, The First Amendment Project, The National Coalition Against Censorship and Microsoft Corporation.
On May 25, three Eleventh Circuit judges heard arguments in the case. The appeals court ruled from the bench that Judge Pannell's order violated the First Amendment. In a two-page interim opinion, the panel found that the injunction represented "an unlawful prior restraint in violation of the First Amendment."
Although the panel's full opinion has not been issued, the briefs in the case and the order dissolving Judge Pannell's injunction suggest that the court of appeals might have focused upon the difference between mere copying and transformative use of an earlier work. Houghton Mifflin had argued that Randall's book was a political and social commentary about racism in the antebellum South. The vehicle for this commentary undoubtedly was the American classic Gone With The Wind. But Randall did much more than simply re-package the earlier book. Houghton Mifflin asserted that The Wind Done Gone was a parody and an attempt to debunk the classic, sometimes racist and stereotypical portrayal of African-Americans. Because Randall's book was a parody and commentary, Houghton Mifflin argued, the book was her speech and, therefore, protected by the First Amendment in a way that a mere photocopy of Gone With The Wind would not be.
The Mitchell Trust has requested rehearing and rehearing en banc. As this article was being finalized, those requests were still pending.
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