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A Georgia law professor who has authored two books on copyright law says a federal appellate ruling upholding publication of “The Wind Done Gone” is “a Supreme Court quality ruling.” And, he says, it could become “very influential” in future copyright litigation. “I think that it is a significant point in terms of copyright law,” says L. Ray Patterson, a former dean of Emory University’s School of Law, and now a professor at the University of Georgia School of Law. Patterson is the author of “Copyright in Historical Perspective” and “The Nature of Copyright: A Law of Users Rights.” Patterson says the 11th U.S. Circuit Court of Appeals panel’s ruling Wednesday “manifests an understanding of copyright law that you don’t often see” and recognizes the importance of the right of free speech in conjunction with copyright laws. ” ‘The Wind Done Gone’ was — and I think the court recognized it — obviously a comment and criticism of ‘Gone With the Wind’ and was, therefore, entitled to a greater degree of protection than otherwise would be available,” Patterson says. That ruling challenges an earlier, unrelated copyright ruling by the U.S. Court of Appeals for the D.C. Circuit, Patterson says, that stated “ free speech is irrelevant to copyright.” “This opinion,” he says, “is the one that happens to be right.” ‘SUBSTANTIVE GUIDANCE’ Joseph M. Beck, the Atlanta attorney who has defended publication of the slim novel that its author purports is the story of Scarlett O’Hara’s illegitimate, mulatto half-sister, says that the appellate court provided the first legal guidance as to when a novel is a parody and, thus, exempt from copyright restrictions. Beck says the ruling is significant because it “provides substantive guidance” as to when a literary work based, in whole or in part, on another work has been transformed sufficiently to be considered a “fair use” of the previous work. “It’s a very important copyright decision,” says Beck, a Kilpatrick Stockton partner who has waged an often vociferous battle against the estate of the heirs of Margaret Mitchell to publish “The Wind Done Gone” by Tennesseean Alice Randall. Until now, he says, “There has been very little guidance from the courts. We believed all along that ‘The Wind Done Gone’ fell squarely within the U.S. Supreme Court’s definition of transformative use. This opinion has made that clear and applied it to an entire novel.” The ruling reverses and remands an opinion issued last spring by U.S. District Judge Charles A. Pannell that “The Wind Done Gone” violated the copyright of “Gone With the Wind.” SunTrust v. Houghton Mifflin Co., No. 01-12200 (11th Cir. Oct. 10, 2001). That copyright is held in trust for Mitchell’s nephews and is controlled by a committee of two retired Atlanta attorneys — Paul H. Anderson and Thomas Hal Clarke Sr. — who were Mitchell’s brother’s law partners. In addition, the ruling suggests that “The Wind Done Gone” will complement “Gone With the Wind” and could, in fact, increase sales of the internationally renowned Civil War epic. And it requires that the holder of a copyrighted work such as “Gone With the Wind” cannot claim that sales of a derivative work harmed its own market without “proof that ‘The Wind Done Gone’ has usurped demand for ‘Gone With the Wind.’ “ Anderson says he has read the appellate ruling, but is “really not in a position to discuss it.” But the attorney has said previously that if the trusts lost a lower court ruling, he would carry the challenge to the U.S. Supreme Court. Anderson’s attorney, Martin Garbus of the New York firm Frankfurt Garbus Kurnit Klein & Selz says now that the case has been remanded, the estate intends to take it to trial. “I am looking forward to a trial,” he says. “We expect to be able to convince a trial judge and the [11th] Circuit court that fair use is invalid, and there is a copyright infringement. And, if need be, we expect to take the case to the Supreme Court.” Garbus claims that the appellate panel’s determination that “The Wind Done Gone” is a parody and, thus, exempted from federal copyright laws “was their speculation.” But they had only an application for an injunction — and no testimony — before them to consider, he says. “All they really did is deny the injunction and express their views. … They didn’t have a trial record in front of them. No one has heard oral testimony yet.” In a 61-page opinion, U.S. Circuit Judge Stanley F. Birch Jr. — writing for the majority — and U.S. Circuit Judge Stanley Marcus — in a separate, concurring opinion — come down squarely on the side of “The Wind Done Gone.” Last May the two judges, joined by 7th U.S. Circuit Judge Harlington Wood Jr. from the bench, lifted a lower court injunction that temporarily had barred publication of “The Wind Done Gone.” In Wednesday’s ruling, they not only defended that decision but stated unequivocably that “The Wind Done Gone” is a parody of its epic predecessor that is considered a “fair use” of a copyrighted work. Moreover, Birch stated that “fair use” is not only a legitimate defense of a literary work that derives much of its content from another copyrighted work, but “an affirmative right.” According to Birch, copyright law is intended to encourage creativity and ensure the public has free access to information. As such, authors are granted only “limited exclusive rights” in the protection of original works. Copyright law was never intended, he said, to be a censorship device that stifled freedom of speech. Fair-use exceptions to copyright laws were intended “to preserve the constitutionality of copyright legislation by protecting First Amendment values … as they allow later authors to use a previous author’s copyright to introduce new ideas or concepts to the public,” he wrote. “Copyright does not immunize a work from comment and criticism.” The appellate panel acknowledged that not every parody is shielded from a claim of copyright infringement. Moreover, the panel conceded that “The Wind Done Gone” borrows character, plot, and setting, often liberally if not “wholesale,” from Mitchell’s novel. But it also expanded the legal definition of parody previously set by the U.S. Supreme Court, Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 114 S. Ct., 1164, 1171 (1994), as a work that goes far beyond one intended “for comic effect or ridicule.” “We choose to take the broader view,” Birch wrote. “For purposes of our fair-use analysis, we will treat a work as a parody if its aim is to comment upon or criticize a prior work by appropriating elements of the original in creating a new artistic, as opposed to scholarly or journalistic work.” “Under this definition, the parodic character of ‘TWDG’ is clear. ‘TWDG’ is not a general commentary upon the Civil-War era American South, but a specific criticism of and rejoinder to the depiction of slavery and the relationship between blacks and whites in ‘GWTW.’ The fact that Randall chose to convey her criticisms of ‘GWTW’ through a work of fiction, which she contends is a more powerful vehicle for her message than a scholarly article, does not, in and of itself, deprive ‘TWDG’ of fair-use protection.” Birch wrote unequivocably that Randall’s book “is more than an abstract, pure fictional work. It is principally and purposefully a critical statement that seeks to rebut and destroy the perspective, judgments, and mythology of ‘GWTW.’ Randall’s literary goal is to explode the romantic, idealized portrait of the antebellum South during and after the Civil War. … When Randall refers directly to Mitchell’s plot and characters, she does so in service of her general attack on ‘GWTW.’ … Randall has fully employed those conscripted elements from ‘GWTW’ to make war against it. Her work, ‘TWDG,’ reflects transformative value because it can ‘provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one.’ “

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