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Court Halts Book Based on 'Gone With the Wind'

A Federal District Court in Atlanta granted an injunction yesterday blocking the imminent publication of "The Wind Done Gone," concluding that its author, Alice Randall, plagiarized from Margaret Mitchell's Civil War epic, "Gone With the Wind." 

Ms. Randall set part of her novel on the plantation described in Ms. Mitchell's book and told the story from the perspective of a slave who was the half-sister of Ms. Mitchell's leading character, Scarlett O'Hara, and the daughter of Ms. Mitchell's character Mammy. 

The case has captivated lawyers, literary critics and historians alike because it pits claims about free speech and social justice against arguments about intellectual property rights and artistic merit. At the heart of the conflict are legal issues about the blurry boundary between unlawful plagiarism and legitimate critical reinterpretation. The book's publisher, Houghton Mifflin, said it would appeal the injunction.

Lawyers defending Ms. Randall's book submitted testaments against the injunction from a roster of well- known artists and intellectuals including the novelists Harper Lee, Toni Morrison and John Berendt, the critic Henry Lewis Gates, the historians Arthur M. Schlesinger Jr. and Shelby Foote, and the musician Steve Earle. Booksellers, librarians and authors' groups all filed briefs in support of Ms. Randall's First Amendment rights. It is not clear how many of those weighing in on the book have actually read it.

The core of the argument in defense of the book is that Ms. Randall's book borrows Ms. Mitchell's scenes and characters to criticize and ridicule "Gone With the Wind" and its demeaning portrayal of black slaves. Ms. Randall's lawyers and many experts argued that revisiting the story from a slave's perspective serves a legitimate public interest partly because of the novel's unique status as an American icon.

To make the case for suppressing the new work, the Mitchell trusts have enlisted Martin Garbus, a prominent First Amendment lawyer. Mr. Garbus submitted testimony from literary critics that Ms. Randall's novel was mediocre, unoriginal and derived its principal appeal from the popularity of Ms. Mitchell's book.

In his opinion, Judge Charles A. Pannell Jr. found that Ms. Randall borrowed 15 characters from Ms. Mitchell's book, along with many famous scenes and some dialogue. He concluded that Ms. Randall repeated much more than necessary for the purpose of a parody. What's more, he wrote, the true object of the book's criticism was slavery and racism, not just Ms. Mitchell's novel. He added that many other writers including Ms. Morrison have found ways to criticize slavery without taking from "Gone With the Wind."

Explaining his ruling, Judge Pannell responded to rhetorical questions that Ms. Morrison raised in her statement to the court. Ms. Morrison asked: "Who controls how history is imagined? Who gets to say what slavery was like for the slaves?" 

The judge answered: "The question before the court is not who gets to write history, but rather whether Ms. Randall can permeate most of her new critical work with copyrighted characters, plot and scenes from `Gone With the Wind.' " 

In a statement after the decision, Ms. Randall said, "Gone With the Wind" has "wounded generations of Americans." Ms. Randall, a successful screenwriter and country music songwriter living in Nashville, describes herself as of mixed race. This book is her first novel. "I look forward to the day when readers will be able to judge my book for themselves," she added.

Wendy Strothman, executive vice president of Houghton Mifflin, said in a statement, "Today's ruling, if allowed to stand, will have a chilling effect on all those who seek to use free expression and parody to explode myths and provoke new thinking," adding, "The Mitchell trusts are threatening to re-define American parody as we know it." 

The idea of borrowing another writer's characters and setting is hardly original. Tom Stoppard, John Updike and other writers have revived characters from Shakespeare's plays, and Shakespeare himself borrowed heavily from many writers before him. But literary allusion has grown increasingly contentious in an era when stories and characters can become the basis for profitable licensing deals across other media.

In 1994, the Supreme Court re- opened the question of how much borrowing from a pre-existing creative work is permissible when it considered for the first time the legitimacy of imitation for the purpose of parody. The court overturned a lower court's ruling that the rap group 2 Live Crew had plagiarized Roy Orbison's song "Oh, Pretty Woman" by incorporating portions of its lyrics and melody into a bawdy reinterpretation.

The Supreme Court found that 2 Live Crew's rap seemed like a legitimate satire of the original's "naïveté," but stopped short of defining how similar to an original a parody can be.

Since then, the son of the novelist Vladimir Nabokov has filed suit to block the publication in the United States of "Lo's Diary," a novel by the Italian writer Pia Pera that retells "Lolita" from the little girl's perspective. (She exults in her power.) In that case, Mr. Garbus represented Ms. Pera. The case was settled out of court before a ruling.

In ruling on Ms. Randall's novel, Judge Pannell seemed to find that adopting a new perspective on another author's book was unlikely to qualify as a legitimate parody. "If the work tells the same story through different eyes, then it infringes on the copyright owner's right to create and control derivative works," he wrote, concluding that Ms. Randall's book was in essence an unauthorized sequel.

The Mitchell trusts, managed by SunTrust Bank for the benefit of her nephews, have earned millions of dollars from licensing adaptations and sequels to "Gone With the Wind."

Judge Pannell found that the publication of Ms. Randall's book would sap the market for its authorized sequels. "When the reader of `Gone With the Wind' turns over the last page, he may well wonder what becomes of Ms. Mitchell's beloved characters, and their romantic, but tragic world," he wrote, adding that only the copyright owner can provide answers. In its licensing agreements for the sequels, the trusts have stipulated that Scarlett O'Hara must not die. In Ms. Randall's novel, she does.

Lawyers for Ms. Randall argued that her book would not compete with authorized sequels because its critical perspective would appeal only to different readers. The writer Pat Conroy, who contemplated writing an authorized sequel, provided a letter testifying that the trusts asked him to promise not to include interracial sex or homosexual sex. Ms. Randall's novel includes both.

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