The Case of the Disappearing Wind

Alice Randall wrote a novel called The Wind Done Gone, which used the characters, plot, and major scenes from Margaret Mitchell’s best-selling book, Gone With the Wind. Although the two books are substantially similar for copyright purposes, the second book turns the first on its head. The Wind Done Gone is told from the point of view of a black slave rather than a white plantation owner’s daughter. The individuals with strength of character in Mitchell’s work are weak individuals in Randall’s work, and vice versa. Furthermore, the Southern customs and values that were treated sympathetically in Gone With the Wind are shown as corrupt in The Wind Done Gone.  

Suntrust Bank, as trustee for the Mitchell Trust, sued Randall and her publisher for copyright infringement. Randall claimed that The Wind Done Gone was not substantially similar to Gone With the Wind (an argument she lost) or, in the alternative, that it parodied the earlier work and was a fair use (an argument she won).

As noted last month in "The Case of the President's Words," the first fair use factor is the purpose and character of the allegedly infringing work. In a separate case, the Supreme Court said that parody is a transformative use under that factor and defined parody as something that comments on the substance or style of the original work in a way that makes the original appear ridiculous. (Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).)

The 11^th Circuit found that The Wind Done Gone was a parody of Gone With the Wind because the second book challenged Gone With the Wind’s idealized portrait of the South during and immediately following the Civil War.

The nature of the allegedly infringing use is only one factor the courts consider. Although most parodies--or at least most recognizable parodies--are fair uses, that is not an automatic result. But it was the result in this case. After analyzing each of the four factors, the 11^th Circuit found that The Wind Done Gone did not violate the copyright laws.

The 11^th Circuit’s analysis came early in the case and could theoretically have changed after a trial. Theoretically, but not realistically. And since Suntrust Bank dropped the lawsuit, we’ll never know for sure.

When is a parody not a parody? Tune in next month for the Case of the Purloined Hat.

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Kathryn Page Camp is a licensed attorney and full-time writer. Her new book, Writers in Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013) is available from Amazon.com and other retailers. Kathryn is also the author of In God We Trust: How the Supreme Court’s First Amendment Decisions Affect Organized Religion (FaithWalk Publishing 2006) and numerous articles. You can learn more about Kathryn at www.kathrynpagecamp.com.