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The boundary between freedom of speech and intellectual property is a Mason-Dixon line of constant conflict. A recent skirmish involved Margaret Mitchell’s classic novel of the antebellum South, “Gone With the Wind,” and a critical new version told from the slaves’ perspective entitled “The Wind Done Gone.” In the battle to enjoin publication of the new version, freedom of speech triumphed over copyright law. But on viewing the larger legal picture, one might question whether freedom of speech won — or freedom of certain kinds of speech. Alice Randall is an accomplished screenwriter and songwriter. At the age of 12, she read and fell in love with “Gone With the Wind,” even though she had to overlook the work’s patent racism to do so. As she grew up, Randall realized that Mitchell’s novel ignored the humanity of its black characters. She wondered where the mulattos were on Tara. She decided to write a novel from the perspective of Cynara, Scarlett’s half-sister by the plantation owner and Mammy. As Randall put it, she had to tell the slaves’ story “because the silence injured me.” The Mitchell trusts decided that “The Wind Done Gone” injured Mitchell. They noted that the new version included 15 of the same characters appearing in the original, plus many of the same scenes, settings, descriptions, plot lines and text — all copyrightable elements. They marched into federal court in Atlanta and sued for copyright infringement, arguing that “The Wind Done Gone” was an unlawful derivative work. The district court, after finding “The Wind Done Gone” an unauthorized sequel to “Gone With the Wind,” issued an injunction barring further publication. The 11th U.S. Circuit Court of Appeals reversed in a short per curiam opinion. (The court promised a comprehensive opinion will follow.) While the 11th Circuit’s reasoning remains a mystery, its conclusion is probably correct. Not every act of copyright infringement is actionable. Alice Randall had a particular message to convey, a message which transcended the indisputable proposition that slavery is heinous. Randall wanted to say that “Gone With the Wind” perpetrates a historical fraud, and that the slaves of history were not the childlike, contented lot portrayed by Mitchell. To execute her self-described “exuberant act of literary revenge,” Randall had to appropriate much of the copyrightable substance of Mitchell’s novel. But “The Wind Done Gone” is not the only recent act of this kind of revenge. Courts have not been as sympathetic to other avengers seeking the shelter of the First Amendment. Consider Wojnarowicz v. American Family Association. David Wojnarowicz was a multimedia artist whose work, partially funded by the National Endowment for the Arts, decried the government’s alleged failure to confront the AIDS crisis. The defendant, AFA, based in Tupelo, Miss., was an organization founded to “promote decency and the Judeo-Christian ethic in America.” It distributed a pamphlet containing photographs of fragments of the plaintiff’s artwork, most of them depicting graphic sexual acts or Jesus with a hypodermic needle in his arm. The pamphlet was entitled: “Your Tax Dollars Helped Pay For These ‘Works of Art.’ ” It protested the use of tax dollars to fund an exhibit of Wojnarowicz’s works. Wojnarowicz sued to enjoin publication of the pamphlet. He argued that the AFA had “mutilated” his work by selectively cropping photographs to highlight their sexual content “devoid of any political and artistic context.” The federal court in New York (after rejecting defendant’s attempt to move the case to Mississippi) enjoined publication of the pamphlet. It went farther and issued a mandatory injunction, ordering the association to undertake a corrective mailing and to publish a corrective advertisement in a major newspaper. The AFA, like Randall, had a legitimate political message. The AFA, like Randall, conveyed its message by selectively copying portions of an underlying work it wished to criticize. The AFA selected the most salacious features of Wojnarowicz’s works precisely because those elements were the basis of its protest against federal funding. Similarly, Randall focused on the most distasteful depictions of blacks in “Gone With the Wind” to illustrate Mitchell’s literary offense. The AFA actually went farther than Randall in ensuring that no reasonable person would infer any association between it and the underlying work. Where Randall argued that she was “transforming” Mitchell’s work, the AFA was denouncing Wojnarowicz’s with biblical righteousness. Wojnarowicz succeeded by basing his suit on the New York Artists’ Authorship Rights Act. That act bars “mutilation” of limited edition “works of fine art.” The court held that AFA’s selective cropping harmed plaintiff’s reputation by attributing an unfairly modified version of his artwork to him. (Wojnarowicz’s copyright claim, like that of the Mitchell trusts, was dismissed.) But state-granted moral rights are no less subject to First Amendment restriction than are federal rights. Moreover, criticism always involves selective copying. Critics customarily focus on only the most objectionable elements of an underlying work. Alice Randall made no effort to balance her “literary revenge” by including scenes or passages of “Gone With the Wind” that treated its black characters with dignity. Alice Randall had the support of dozens of authors, professors and other cultural celebrities, to say nothing of the editorial board of The New York Times. Outside of Tupelo, Miss., the AFA had few supporters. Other boorish bearers of unfashionable messages have also seen their free speech arguments lose to intellectual property rights. Organizations attempting to criticize or ridicule Planned Parenthood and People for the Ethical Treatment of Animals have lost in court, despite First Amendment defenses. While the facts and legal issues in each case differed, all involved conflicts between freedom of speech and intellectual property rights. The suspicion lingers that while free speech is a good legal weapon, politically correct free speech is a better one. Lawrence J. Siskind, of San Francisco’s Harvey Siskind Jacobs, specializes in intellectual property law. He can be reached at [email protected].

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