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The publisher of a new book, “The Wind Done Gone,” claims the work is a parody of “Gone With the Wind” and protected under the First Amendment. But the trustee for the estate of Margaret Mitchell, author of the original and much-beloved work, says the new novel is plagiarism, pure and simple. On Thursday, SunTrust Bank, the trustee, was in federal court seeking a temporary restraining order and preliminary injunction to ban the book’s national distribution while the courts decide whether the book amounts to copyright infringement. The book, authored by Alice Randall and published by Houghton Mifflin Co., tells the story of Scarlett O’Hara’s out-of-wedlock mulatto sister, Cynara. The novel is written as Cynara’s diary, in part recounting its protagonist’s younger days as a slave on the plantation “Tata.” Houghton Mifflin Co. hopes to have the work on bookstore shelves in May. But lawyers for SunTrust told U.S. District Court Judge Charles A. Pannell Jr. that Randall’s book is an unauthorized sequel that steals and destroys the beloved characters of the original book. “She kills off Scarlett,” said Thomas D. Selz, of New York’s Frankfurt Garbus Kurnit Klein & Selz. Selz explained that the book’s publication would cause “irreparable harm,” not only to the Mitchell Trusts but others who create fictional works. If authors lose the ability to control what happens to popular characters, that “would be a disaster,” he said. It would destroy the value of well-known, much beloved characters, he said. “Are we saying the ‘X-Files’ series can now be told from the perspective of the aliens?” he asked the court. Maura J. Wogan, a partner with Frankfurt Garbus, told Pannell that once “The Wind Done Gone” hits bookstore shelves, there will be no way to get it back. If a court rules in the copyright-holder’s favor after that, it will be too late, she explained. However, Randall and Houghton Mifflin won’t experience the same harm if the courts later vindicate them, she said. The damages they’ll face are only related to delays in marketing and distribution plans. “All of the publicity surrounding the lawsuit will outweigh any harm,” Wogan added. What’s more, one of the most basic rights of copyright-holders would be infringed upon: the right to authorize derivative works. “Widespread activity on the part of others [who write sequels] could destroy the potential market for sequels [by copyright-holders].” The harm, Wogan said, would be “incalculable.” But Kilpatrick Stockton partner Joseph M. Beck, who represents Houghton Mifflin, told the court that Randall’s novel was not a sequel but a parody and protected speech under the First Amendment. Beck offered as evidence the declaration of John Sitter, Emory University’s Charles Howard Chandler Professor of English, who called the book a classic parody. It’s true that parody may kill some demand for the original work, but that’s not something the copyright law protects, Beck said. “Literally, they are asking you to stop the presses,” Beck told Pannell. That, he said, constitutes prior restraint. “Prior restraint simply isn’t allowed in this country.” There is no substantial similarity between the characters in “Gone With the Wind” and “The Wind Done Gone,” Beck said. Characters portrayed as flat, stock characters in “Gone With the Wind” are active and intelligent in the “The Wind Done Gone,” he explained. The theme is also different, Beck said. “It raises questions of race, gender, power and powerlessness. … It is a classic example of criticism and comment.” “There are some similarities — the title clues you in,” Pannell remarked. “I guess what really troubles me is killing off Scarlett,” he joked moments later. If the story told in “The Wind Done Gone” is not determined to be a copyright infringement, it could one day be used in movies, television productions, stage plays and other venues, according to the lawyers for the Mitchell estate. At the close of the hearing, Houghton Mifflin agreed that it would stick to its publication schedule, promising not to ship copies to bookstores until May 5. It will continue its normal prepublication activities. Pannell predicted that he would rule on SunTrust’s motion in two to three weeks. “I know you’re in a hurry to get it up to the 11th Circuit,” he said.

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