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The retired attorneys who are the guardians of “Gone With the Wind” say that publication of a new book retelling the story through the eyes of Tara’s slaves would “set a terrible precedent.” “It’s a matter of a principle of business,” says Paul H. Anderson, who with retired partner, Thomas Hal Clarke Sr., has safeguarded the “GWTW” copyright since the death in 1983 of their former partner, Margaret Mitchell’s brother, Stephens Mitchell. “If there’s another story to tell, we want it to be our story … . If there’s another sequel, we want to pick the person,” Anderson says. They have gone to court to stop publication of “The Wind Done Gone” by Nashville author Alice Randall. They also want a federal judge in Atlanta to order the destruction of all copies. SunTrust Bank v. Houghton Mifflin Co. No. 1:01-cv-701 (N.D. Ga., March 16 2001). The result is that “The Wind Done Gone” could become known as the book the Mitchell Trusts tried to ban. Atlanta attorneys for Randall and her publisher, Houghton Mifflin Co., argue the court should not stop publication of “The Wind Done Gone” while the legal questions surrounding what they claim is fair use of “Gone With the Wind” is being litigated. FREE EXPRESSION CLAIMED In legal papers filed on behalf of the publisher of the new book, Atlanta attorney Joseph M. Beck argued that the public interest in protecting the integrity of copyrights does not outweigh the public interest in free expression in this case. Beck says an injunction would, in effect, bar free speech, a violation of the First Amendment. “The only thing surprising about the writing of “The Wind Done Gone” is that it was not written long before this,” writes Henry Louis Gates Jr., chairman of the Department of African-American Studies at Harvard University, from which Randall graduated in 1981. ” ‘Gone With the Wind’ — especially in its book form — is widely regarded in the black community as one of the most racist depictions of slavery and black slaves in American literature.” But attorneys for SunTrust Bank, which administers the four Mitchell Trusts that hold the GWTW copyright on behalf of Margaret Mitchell’s nephews, claim that to allow publication of “The Wind Done Gone” would “diminish or preclude outright” any ability to authorize and control future derivative works. Anderson and Clarke, now retired, are the surviving members of a three-person committee that Stephens Mitchell appointed to determine for the Mitchell Trusts how the copyright is used. But controlling the “Gone With the Wind” copyright is not only an economic issue. It’s an artistic issue as well. MYSTIQUE SHATTERED? Anderson and Clarke say the plot of “The Wind Done Gone” shatters the mystique surrounding “Gone With the Wind” that they have sought for decades to preserve. It also violates a set of unofficial standards they have imposed on other authors who have sought to write an authorized sequel to “Gone With the Wind.” “There are a couple of things we don’t want,” Anderson says. “One was miscegenation. The other was sex between persons of the same sex … . Steve [Stephens Mitchell] wouldn’t have permitted it. Margaret wouldn’t have permitted it.” Nor, they say, would the author or her brother have approved of a sequel riddled with foul language or sex scenes. The lawyers say they rejected Southern author Pat Conroy’s proposal several years ago to have Scarlett O’Hara die at the end of a proposed second sequel. The lawyers and St. Martin’s Press recently contracted for a second sequel, though they won’t identify the author. In that book, neither Scarlett nor Rhett Butler dies, Anderson says. “We did not want a writer … putting things in the book we personally objected to and would not have permitted to have been published to boost sales of the book,” Anderson explains. “We knew, having known Mr. Mitchell for many years, having known something about the history of ‘Gone With the Wind,’ that neither he nor Margaret would have ever approved of a book that contained that subject matter.” Calling himself “old-fashioned,” the 82-year old Anderson continues, “If it was published, that first sequel, we wanted it to be published without the aid of these elements so it could stand and fall as a sequel to “Gone With the Wind.” Only people who were interested in following the story … would be interested in buying it.” Mitchell herself for years adamantly fought intense pressure from her publisher and Hollywood producers to either write or authorize a sequel to “Gone With the Wind,” Anderson says. In a letter that Mitchell’s husband, John Marsh, wrote to Selznick International Productions in 1940, he stated unequivocably: “Mrs. Marsh does not intend to have her sequel rights infringed upon in any way. Of course, the rights are worth a lot of money to her, but, beyond that, she feels a personal interest in Scarlett, Rhett, and the other characters she created and she would fight to defend them from misuse and abuse by some other writer.” “The Wind Done Gone,” however, includes every element to which Anderson and Clarke have previously objected in a sequel — miscegenation, homosexuality, Scarlett’s death and sex. NEW TWISTS ON FAMILY Described in promotional materials as “a brilliant rejoinder” to “Gone With the Wind” and “an inspired act of literary invention,” “The Wind Done Gone” is the often poetic diary of Scarlett’s illegitimate half-sister — the child of her father and her nurse, Mammy. She is Cynara (called Cinnamon or Cindy because she is “skinny as a stick and brown”), a mulatto and a slave. In the course of “The Wind Done Gone,” Cynara has a long-term affair with Rhett Butler before he marries Scarlett. After Rhett leaves Scarlett, he eventually marries Cynara. The book reveals that Scarlett’s great-great-grandmother was a Haitian “Negresse.” That shared black Haitian ancestor and the fear that marriage would produce a child of color is the real reason, according to “The Wind Done Gone,” that Scarlett’s mother never married her true love and first cousin, Philippe. And Scarlett and her mother, by virtue of that black ancestry, were merely passing as white. “She was ‘black’ and she didn’t seem it, and she was not that much lighter than you,” Rhett tells Cynara. He marries her only after making that discovery. There is more: “The Wind Done Gone” strongly implies that the Ashley Wilkes character, “Dreamy Gentleman,” has a homosexual relationship with a slave, Prissy’s brother. When his wife, called Mealy Mouth, discovers it, she has the offending slave whipped until he dies. The book also suggests that brothel owner Belle Watling, known as Beauty, and a coterie of prostitutes that include Cynara, also may engage in lesbianism. Halfway through the new book, the Scarlett O’Hara character dies. BOOK MAILED TO LAWYERS Anderson and Clarke say they became aware of Randall’s book only after they received an advance copy from someone they decline to name. “They [Houghton Mifflin Co. and Randall] never approached us,” Anderson says. “I can’t answer what communications they might have had with St. Martin’s Press. There is nothing to indicate that she approached them.” The attorneys and SunTrust Bank, which manages the trust funds, immediately sought a temporary restraining order to stop publication and distribution of “The Wind Done Gone”. Paul Weaver, Houghton Mifflin’s senior vice president and general counsel, declined to withdraw the book, claiming it was a parody and was therefore exempt from copyright protection as a “fair use” of the literary work. The case could turn on the definition of a parody. The promotional cover of an advance copy of “The Wind Done Gone” makes no mention of a parody. Instead, it describes the book as “a historical plausibility, even probability” that “ingeniously and ironically” transforms the events of “Gone With the Wind.” “A passionate love story, a wrenching portrait of a tangled mother-daughter relationship, and a book that gives a voice to those history has silenced, ‘The Wind Done Gone’ is an elegant literary achievement of significant political force and a novel whose time is finally come,” the promotion says. DEFINING ‘PARODY’ A parody, according to “The American Heritage Dictionary of the English Language,” is “a literary or artistic work that broadly mimics an author’s characteristic style and holds it up to ridicule.” It is an intentional mockery, a caricature, a burlesque. That definition is mirrored in copyright court cases, including several involving “Gone With the Wind” in U.S. District Court and the 11th U.S. Circuit Court of Appeals in Atlanta. “If it’s not a parody, it’s the end of the ball game [for 'The Wind Done Gone'],” Anderson says. “It boils down to the court looking at one book and the other book and deciding it.” But Beck insists, “A parody works by ridicule. It is not necessarily comedy. It is the classic speech of protest by oppressed peoples. And it fits within the American tradition articulated by Justices [Oliver Wendell] Holmes and [Louis] Brandeis that the cure for objectionable speech is more speech.” ORIGINAL RAPPED FOR RACISM And “Gone With the Wind” includes objectionable speech, according to an affidavit by Randall filed in U.S. District Court on Thursday. In that affidavit, Randall claims that “Gone With the Wind” portrays a world “in which blacks are buffoonish, lazy, drunk and physically disgusting, and in which they are routinely compared to ‘apes,’ ‘gorillas,’ and ‘naked savages.’ … . Whatever others may think of its literary value, I believe that the main significance of ‘Gone With the Wind’ in American culture is how it has inaccurately created harmful perceptions of African-Americans in the South,” Randall states. In an earlier interview with Randall included in the promotional copy of “The Wind Done Gone,” she said she “fell in love” with “Gone With the Wind” when she first read it at age 12. “I had to overlook racist stereotyping and Klan white-washing to appreciate the ambitious, hard-working, hard-loving character who is Scarlett. Like so many others, I managed to do it.” Academics and other authors also are beginning to weigh in on what is becoming a heated, if not angry, debate. In a sworn affidavit made on behalf of Randall and Houghton Mifflin, John E. Sitter — Emory University’s Charles Howard Candler Professor of English — calls “The Wind Done Gone” “a classic parody” of “Gone With the Wind.” “In my opinion, ‘The Wind Done Gone’ contains a pervasive and profound criticism and commentary upon ” ‘Gone With the Wind,’ ” his affidavit continues. “ It does so with remarkable subtlety and economy, alluding to ‘Gone With the Wind’ only sporadically, in order to bring the earlier work in view and transform some of its events by parodic commentary, reinterpretation, and the invention of new circumstances. … Its richness and complexity are such that I can see the novel being taught at the college and university levels … “ CONROY SUPPORT In a separate letter of support included in court files, Pat Conroy also labels “The Wind Done Gone” a parody, calling it “a grand send-off of ‘Gone With the Wind.’ ” But Conroy’s take on the book is somewhat different than Sitter’s. “If you censor her book, then TV’s ‘Saturday Night Live’ has no right to exist, nor does any comic strip, or late-night TV show, or any novelist who makes fun of another author or book.” But attorneys with Jones, Day Reavis & Pogue in Atlanta and Frankfurt Barbus Kurnit Klein & Selz in New York — who are representing the Mitchell Trusts — state emphatically in answering briefs that “The Wind Done Gone” is no parody. ” ‘The Wind Done Gone’ ” does not even attempt to achieve comic effects,” according to one brief. What may carry more weight with the federal court is a 1979 order by U.S. District Court Judge Orinda D. Evans in Atlanta, who closed down the musical revue, “Scarlett Fever,” as an infringement of the GWTW copyright, Metro-Goldwyn-Mayer, Inc. v. Showcase Atlanta Cooperative Productions, No. C79-1766A, (N.D. Ga., Oct. 12, 1979). Evans rejected arguments that the revue was a parody or a satire, although it contained some of those elements. She said it was a musical adaptation of “Gone With the Wind.” “To constitute the type of parody eligible for fair use protection, parody must do more than merely achieve comic effect,” she wrote. “It must also make some critical comment or statement about the original work which reflects the original perspective of the parodist — thereby giving the parody social value beyond its entertainment function.” But that alone is not enough to exempt a work from copyright protections, Evans stated. “This Court has found that even if ‘Scarlett Fever’ was assumed to be a parody or satire, it clearly incorporates more material from the original works than is allowed … . ‘Scarlett Fever’ is likely to harm the potential market for or value of the derivative use of “Gone With the Wind”.” Even if a work is a parody, federal copyright laws do limit the extent to which an original work can be used. ‘NOT A PARODY’ GWTW attorneys argue that “The Wind Done Gone” “is not a parody and labeling it as one does not excuse this blatant appropriation of copyrighted material.” Characters, character traits and relationships are copied from “Gone With the Wind,” its attorneys argue. Famous scenes, such as Rhett leaving Scarlett with the words, “Frankly, my dear, I don’t give a damn;” Scarlett’s earlier introduction to him when she hurls a china vase against a wall and finds him hiding on a couch; and the killing of a Yankee soldier by Scarlett and Melanie are copied with little alteration, they claim. In addition, Randall has copied “verbatim dialogue and description” from “Gone With the Wind.” But attorneys at Kilpatrick Stockton who are defending Randall and Houghton Mifflin insist that “The Wind Done Gone” “does not gratuitously copy from ‘GWTW.’ Rather, it carefully selects and artistically recasts those elements of ‘GWTW’ most likely to advance ‘WDG’s’ critical endeavor.” What is found in “The Wind Done Gone” is not copying but allusion, according to the briefs — a literary technique that “points to a particular detail in an earlier work as a way of evoking the context and atmosphere of a passage, in order to create new meaning or significance.” In addition, they argue, “There is no protectable market for criticism. … . Here it is impossible to conceive of Plaintiffs’ licensing a stinging critique of ‘GWTW’ such as ‘WDG.’ And even if it were possible to imagine such a thing … plaintiffs have no right under the Copyright Act to monopolize the market for critical transformations of ‘GWTW’ for the purpose of censoring out viewpoints with which they disagree.” Finally, “The Wind Done Gone” “uses fragments from the world of ‘GWTW’ … but recasts and reinterprets those events through perspectives unseen in GWTW,’ ” the author’s lawyers argue. PARALLEL SITUATIONS But, “GWTW” attorneys argue, “Some of the most famous and compelling scenes from “Gone With the Wind” “are merely summarized for the reader without any commentary that would add to, or challenge, the reader’s understanding of the story. However, in published editorials and letters, defenders of “The Wind Done Gone” insist that borrowing from an earlier work makes the book comparable to Tom Stoppard’s retelling of “Hamlet” in “Rosencrantz and Guildenstern are Dead,” Jean Rhys’ retelling of “Jane Eyre” in “The Wide Sargasso Sea”, and James Joyce’s retelling of Homer’s “Odyssey” in “Ulysses”. Those works, except for “Ulysses,” retell the original story from the point of view of minor characters. But Clarke, 86, says, there is a significant difference between those derivative works and “The Wind Done Gone.” He says, “All of the great works that have been used — the copyright’s gone. It’s public domain.” The “GWTW” copyright, and the right to produce any derivative works, on the other hand, has been assigned to the Mitchell Trusts in a 1985 11th U.S. Circuit Court of Appeals ruling handed down after a four-year court battle, Trust Company Bank v. Metro-Goldwyn-Mayer, No. 84-8605, (11th Cir., Sept. 27, 1985). In that fight, begun by Stephens Mitchell before his death in 1983, Los Angeles attorney Melville Nimmer, author of the definitive treatise on copyright law, “Nimmer on Copyright,” successfully represented the Mitchell Trusts. Since then, the “GWTW” copyright has become even more secure with the authorized publication of the sequel, “Scarlett,” and the recent signing of a contract for a second sequel. Anderson says that for years after her death and the death of her husband, Margaret Mitchell’s brother fought to protect the copyright and prevent any sequels from being produced or published. But after he renewed the copyright in 1964, Mitchell’s agent persuaded him that he had to authorize a sequel in order to protect the copyright. The idea is that a copyright must be used in order to remain protected, Anderson says. Before his death, Stephens optioned a movie sequel to “Gone With the Wind.” Universal Pictures paid him $700,000 but never exercised that option, Anderson says. Since then, the Trusts have been paid millions in royalties not only for Mitchell’s novel but also for “Scarlett” and licensed merchandise associated with “GWTW.” “We have the resources to finance this litigation as long as there is a court yet to go to,” he says. That includes an appeal to the U.S. Supreme Court, if necessary, he avows. “We are not going to authorize it ["The Wind Done Gone"]. That would be easy, but that is never going to happen … . That would be the end of the copyright effectively. It’s a matter of principle and business.” And because “Scarlett” has been so profitable for the trusts, Anderson says, “We’ve got a war chest. It’s available. I think this is a good use to put it to.”

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