The heirs of Gone With the Wind author Margaret Mitchell have lost a round in their legal battle against a new book that retells the Southern epic with some twists — like giving Scarlett O'Hara African ancestry and making Ashley Wilkes gay.
A federal appeals court in Atlanta today lifted a lower-court injunction against publication of the book, The Wind Done Gone, by Alice Randall.
While the Mitchell estate's trustees say they hold copyrights on the characters and story line in the Gone With the Wind, Randall is gaining support from First Amendment advocates and authors who say her version of the story needs to be told.
It took a three-judge panel in the 11th Circuit Court of Appeals in Atlanta barely an hour of listening to arguments from both sides over the tenuous line between First Amendment rights of creative freedom and the intellectual property rights of the Mitchell estate to reach a decision.
The panel ruled that the new book is artistic satire, not an unauthorized sequel that plagiarizes the original, as Mitchell's estate contended, and allowed publication to go ahead.
In April, a lower-court judge halted the planned June 6 publication of the book, ruling it borrowed too heavily from the classic.
Randall's book retells the 1936 classic from the perspective of a new character, Cynara, who is ostensibly the illegitimate child of Scarlett's white father and her black nanny.
"I know very few blacks who don't shudder with revulsion at Gone With the Wind's portrait of slavery," Southern author Pat Conroy wrote in a letter to the judge who originally heard the case and ended up blocking publication.
Satire or Theft?
The question at issue in the Mitchell estate's lawsuit was not whether Randall's book borrows heavily from the story line of the classic tale; Randall admits as much. The issue was whether Randall legitimately criticizes Gone With the Wind or trades on the novel for her own profit.
Lawyers for the Mitchell estate contend Randall essentially copies 15 characters, even though she renames them, and steals Mitchell's original story line by giving an alternative depiction of the same events.
"What they say is white we say is black," said Martin Garbus, an attorney for the Mitchell estate, who referred to Randall's novel as "parasitic."
"When you create characters you have the right to control them," he said.
A wide range of Randall supporters disagree, contending her book offers a legitimate and much-needed alternative view of events from Gone With the Wind. Authors as varied as Conroy, Toni Morrison, Harper Lee and Arthur Schlesinger Jr. wrote letters to the court on her behalf.
Randall also received support from a New York Times editorial and even Microsoft entered the fray by submitting a "friend of the court" brief supporting Randall.
Trustees of the Mitchell estate are notoriously protective of Gone With the Wind. They have sued to halt production of plays based on the book in both Europe and the United States.
They did commission a sequel to the original book and a television miniseries based on that authorized novel, called Scarlett and written by Alexandra Ripley. Ripley's book and the miniseries both extended the copyright of the original, but the trustees made sure they did not tread on the picture of the nostalgic South Mitchell created.
In his letter to the court supporting Randall, Conroy, himself an Atlanta native, said he refused to write the authorized sequel after the Mitchell estate demanded he agree not to include homosexuality or mixed-race relationships. Conroy implied the Mitchell estate felt such themes would mar the mystique of Gone With the Wind.
The estate is steered by a board of trustees and benefits Mitchell's two nephews, now in their 60s and 70s.
Mitchell was hit by a car and killed in 1949. Her husband was her sole heir. When he died, he passed the rights on to her brother, who in turn gave them to his own sons.
The copyright on the book is up in 2031, at which point Gone With the Wind would enter the public domain. Then, any sequel could be written with or without the blessing of the Mitchell estate.