Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The really odd thing about the U.S. Court of Appeals for the 11th Circuit’s reversal of a lower court injunction against Houghton Mifflin Co.’s publication of Alice Randall’s “The Wind Done Gone” (an African-American commentary on Margaret Mitchell’s classic novel of the antebellum South, “Gone With the Wind”) was not the speed of the May 25 decision. It followed only a few short weeks after the injunction was issued. Nor was it the fact that, in copyright infringement cases, while injunctions are normally a standard remedy, the 11th Circuit classified this injunction as a “prior restraint” in violation of the First Amendment. Instead it was the lineup of corporate amici curiae, and the side of the dispute they picked to weigh in on. Six major media conglomerates — the sort of corporate entities that would be expected to side with the Mitchell Trust, which own the GWTW rights — turned out instead for Randall and Houghton Mifflin. These companies, which include The New York Times Co., Cox Enterprises, and Cable News Network (also known as CNN, a division of AOL Time Warner, Inc.), argued that the district court’s injunction was an inappropriate prior restraint of creative, political speech. This stance was ironic for such big-time copyright holders. The amici were aware of the irony. “Not only do we hold copyrights but we create them daily,” says Gregg Thomas, a partner of Tampa, Florida-based Holland & Knight, who represented the media amici. “When someone tries to ban or suppress speech entirely, our clients believe their economic interests should be subservient to the First Amendment.” (First Amendment advocacy organizations, including PEN American Center and the American Booksellers Foundation for Free Expression, also weighed in against the injunction.) Thomas explains that the amici’s position is more nuanced than it may first appear. While injunctions might be appropriate in cases of literal word-for-word copying (as when a pirate publisher issues his own unlicensed edition of GWTW), a work like Randall’s is different. She takes scenes and characters from one work and uses them to build an independent, creative critical commentary on that work. An injunction in this type of case threatens protected speech in the interests of guarding the economic interests of a copyright holder. And whether the Mitchell Trust really has financial interests at stake is a matter for trial. Some observers say that Randall’s book is likely, if anything, to increase sales of GWTW, not diminish them. Whatever Randall’s work borrows from Mitchell’s may qualify as “fair use” under the copyright laws. Indeed, Microsoft Corporation filed its own amicus brief, arguing that Randall’s work fell within the “fair use” privilege. The lawyers representing the Mitchell Trust, partners Richard Kurnit and Martin Garbus of New York’s Frankfurt, Garbus, Kurnit, Klein & Selz, say the 11th Circuit has simply gotten the law wrong. They’ve asked for a rehearing en banc of the case. They claim that media company amici, including Cox Enterprises, Inc., which publishes The Atlanta Journal-Constitution, want to be perceived as supporting an African American writer. ( The Journal-Constitution, as well as The New York Times, editorialized against the district court’s injunction.) Garbus says the case would have looked very different to these media companies had it been a case in which the story of Toni Morrison’s novel “Beloved” had been retold in another novel from a sympathetic slaveholder’s point of view. Whether the copyright clause ultimately trumps the First Amendment or vice versa, the case in the near term will keep Atlanta burning.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.