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Scarlett on trial
Barbara McCaskill, Associate Professor of English, University of Georgia

Unlike some of our oft-consulting colleagues in the natural and social sciences, most of us engaged in the study of literature do not expect to get involved with the law, at least not in our professional capacities. Those of us especially who commute regularly to another century—in my case the eighteenth—and teach authors unmistakably dead, feel insulated from current legal controversy. Not many suits arise over whether Alexander Pope slandered his satiric victims or whether epistolary novels constitute a violation of privacy. But much of last spring I found myself in the midst of the high-profile legal case leading to the publication of The Wind Done Gone by Alice Randall.

Because of my interest in satire, I was asked by Joseph Beck (Emory College 1965), the eminent Atlanta intellectual property attorney who represented Randall’s publisher, Houghton Mifflin, to serve as an expert witness on parody. Parody would turn out to be an important part of the defense against the charge by the Margaret Mitchell Estate that The Wind Done Gone infringed upon the copyright of Gone with the Wind. At the same time, the process of bringing literary categories into the legal arena would turn out to teach this witness much about how different institutional discourses can alternately overlap, compete, complement, and conflict.

Happily, since the attempt to stop publication of The Wind Done Gone failed and the novel has by now been widely read and discussed, many people know that it comments on the events and world of Gone with the Wind by creating a new main character, Cynara, a supposed mulatto half-sister of Scarlett O’Hara (“Other” in Randall’s novel), ironically transforming and revaluing many of Margaret Mitchell’s characters. Written in the first person as a recently freed slave’s journal, it gives a very different perspective, literally and figuratively, on life in and around Atlanta in the 1860s and ‘70s.

Reading an advance copy of Randall’s novel and rereading much of Mitchell’s over a feverish weekend in late March, I felt naive indignation at the fact that a serious literary work could be put under a preliminary injunction and incredulity at the possibility that it might never see the light of publication. And I did not doubt, whatever the eventual estimate of this first novel might be, that it was literary. The question of what is or is not “literature” is one that makes many of us uneasy these days, for some good reasons, as well as fashionable ones. While I do not have a rigorously theoretical answer, I do have a sort of practical one that I find myself using in conversations with students. Sometimes when a student praises a book by saying, “I couldn’t put it down,” I ask whether he or she might want to pick it up again. I knew this was one that would repay rereading.

I also felt sure that there was something fundamentally wrong about the accusations that The Wind Done Gone merely “copied” Gone with the Wind and was an “unauthorized sequel” to it. But I was naive in thinking that these category mistakes would be self-evident. Lawyers on the other side had drawn up a chart of about seventy-five alleged instances of appropriation and “copying” by Randall of parts of Gone with the Wind. Much of my initial work (partly shared by uga professor Barbara McCaskill, Emory Ph.D. 1988) was to argue, point by point, that the opposing lawyers failed to distinguish copying from allusion or to see that similarities were invoked to then create ironic differences. While “The Chart” (as we began to speak of it) seemed to me so obviously heavy-handed as literary criticism that replying to it became tiresome, it seems to have carried more weight at the district court level than did arguments for the book’s artistic creativity and political commentary or testimony from authors such as Harper Lee and Toni Morrison to its social importance.

Although the restraint has since been lifted, the fact that the case was initially difficult and at this writing still remains open seems to have to do with limited understandings of parody. Common readers and indeed many literary handbooks are likely to regard parody simply as stylistic imitation for humorous purposes; parody in the popular imagination is comic, stylish, and short. The Wind Done Gone is witty, often funny, but not primarily a comedy, and it is brief only compared to its target. Nor does Mitchell’s style seem to me primarily what Randall is after. Instead, she takes aim at the very premises, psychological and historical, of Gone with the Wind and its unique hold on American consciousness: 28 million copies sold at last count. She does so not by writing about it but, so to speak, writing out of it from within. An important Supreme Court decision of 1994 found in favor of the rap group 2 Live Crew, whose “Pretty Woman” had been held to infringe the copyright of Roy Orbison’s “Oh, Pretty Woman.” Essentially, the Court deemed the new version “fair use,” and thus protected, because its use of the original was sufficiently “transformative.” Justice David Souter’s finely argued opinion characterizes parody in two important ways: first, as a type of “comment and criticism” and, second, as a unique “joinder of reference and ridicule.”

The continuing challenge, I think, will be to understand “ridicule” more broadly than as broad humor. One recent theorist of parody (Margaret Rose) complains of the mistake, especially over the last two centuries, of equating parody with burlesque and thus believing it “incapable of either complexity or seriousness.” Carol Burnett wearing curtains as a gown in imitation of Scarlett—but neglecting to remove the curtain rod—is hilarious burlesque but hardly pointed commentary. Another critic (Simon Dentith) insists on a definition more capacious than those in the handbooks and dictionaries to which lawyers and judges normally turn: “Parody includes any cultural practice which provides a relatively polemical allusive imitation of another cultural production or practice.”

The Wind Done Gone does not need such an “advanced” definition to distinguish it from simple appro-priation; by any definition, it uses “reference” to a text the author deems oppressive in order to “ridicule” it. But I believe it is merely a matter of time, in an age of increasingly self-conscious intertextuality, before some avant garde work will require revised categories for its defense as fair use. How well modern legal and postmodern literary theory can speak to each other on the issue of parody now seems to me a question of more than theoretical interest.