Issue 82, Summer 2001

by Joan E. Bertin

Margaret Mitchell wrote Gone With the Wind in 1936. Now, Alice Randall, an African-American author and songwriter, has written a book called The Wind Done Gone, which re-tells the story through the eyes of slaves. Mitchell’s heirs claim that the book is an unauthorized sequel. They successfully blocked publication, until a federal appeals court reversed the decision in May and sent the case back for trial. Randall and her publisher, Houghton Mifflin, could still be found liable for money damages if they’ve infringed the Mitchell Trust’s copyright.

Under the Constitution, Congress is authorized to “secur[e] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Copyright protection originally lasted 14 years. Many extensions later, in 1998, it expanded to the life of the author plus 70 years—largely to protect commercial investments, like Disney’s interest in Mickey and Minnie.

The idea of protecting authors, inventors, and others, so that they can create and still pay the rent, has considerable appeal; it’s a trade-off permitting limited restrictions on free speech, to promote creative enterprise. But is that what’s at stake here? On the one side is Randall’s interest in publishing a novel that comments on and critiques Gone with the Wind. On the other side is Mitchell’s heirs who wish to preserve their financial interests in the novel, as income-producing property.

But a novel, painting, or musical composition isn’t like other “property.” Art inspires the imagination and demands comment, imitation, even distortion. Much art and literature originated as a “variation on a theme” by someone else”not just Mozart, but James Joyce (Ulysses) and Bernstein’s West Side Story (Romeo and Juliet). Shakespeare in turn retold others’ stories. There’s even an entire school of “appropriation art.” To stifle this aspect of the creative process in the name of extended copyright protection is to elevate the financial interests of those far removed from a work’s creation, over creativity and free expression.

If the Mitchell Trust pursues its infringement claim against The Wind Done Gone, the court will have to decide if Randall’s book is piracy, or parody. Shouldn’t the First Amendment protect the reader’s right to make that judgment—without having to wait 100 years?