EMORY ALUMNUS JOE BECK, a top Atlanta intellectual property
lawyer with a head for First Amendment cases and a soft spot
in his heart for progressive causes, particularly when it comes
to racial issues in the South. Growing up in Alabama, Beck heard
how his father, attorney Foster Campbell Beck, vigorously defended
a black man accused of raping a white woman in the 1930s. The
man was eventually executed, and the story made an indelible
impression on the younger Beck. Recently he succeeded in helping
the Martin Luther King Jr. estate protect the copyright on the
I Have A Dream speech and defended the right of
the rap group OutKast to use civil rights activist Rosa Parks
name in a song.
a lawyer who has argued for King and against Parks, taking Randalls
casean intellectual property dispute on its face, but
with complex racial tensions simmering below the surfaceseemed
like a natural role.
plot took a turn, though, soon after Beck signed on, when U.S.
District Court Judge Charles A. Pannell Jr. found that Randalls
book followed Gone With the Wind too closely, exhibiting
the substantial similarity that signals illegal
copyright violation. Pannell issued a temporary injunction stopping
the publication of The Wind Done Gone.
is unheard of in this country, Beck says. If the
publisher is wrong, they may have to pay damages, but you just
dont block publication.
lot of us Southerners hate to see strident criticism of our
icons, but we also need to open our eyes and see what this is
really all about, which is the First Amendment and artistic
freedom, Beck added. In my view, no one would have
raised objections if this had been a scholarly article attacking
Gone With the Wind, published in an academic journal.
But a novel has a certain power in replying to another novel.
Randall ought to be able to meet Margaret Mitchell on her own
to widespread public interest in the cultural implications of
the case, the press pricked up its ears. Beck rolled up his
sleeves and filed an appeal. He based his defense on three principles:
First, he says, The Wind Done Gone did not infringe on
the copyright of Gone With the Wind because it was not
a sequel and no reader would ever mistake it for an authorized
sequel. Second, Beck says, Randalls book is a literary
parody, an artistic form that is protected under law. And third,
under the First Amendment, Randall has a right to have her book
published, copyright or no.
assembled an impressive cast of supporters on Randalls
side. Statements were filed by witnesses Harper Lee, Toni Morrison,
Pat Conroy, Shelby Foote, Henry Lewis Gates, and Arthur Schlessinger.
Barbara McCaskill 88PhD, a professor of African-American
and multicultural literature at the University of Georgia, submitted
a declaration on behalf of The Wind Done Gone, pointing
out that Randall joins a rich tradition of disenfranchised minority
writers who have used parody as a creative device to mock and
ridicule their oppressors.
also called on Charles Howard Candler Professor of English John
Sitter, who teaches a course on satire and parody, to offer
expert witness testimony that The Wind Done Gone is in
fact a literary parody and not a sequel or empty spin-off.
role was to make the distinction over and over between copying
and alluding to Gone With the Wind in order to parody
it, Sitter says. I had to show there was a purpose
involved, that the result was something transformative, which
is an element of parody. The basic concept is that a parody
is a work that comments on another work.
challenge, Sitter says, was to overcome the common assumption
that parodies are humorous imitations rendered in the style
of the original. Randalls book, written in a dense literary
tone, departs from Gone With the Wind dramatically. The
contrast made it fairly simple to show the book is not a sequel,
Sitter said; a sequel preserves a kind of contract with
the author of the first work.
necessity of revealing the unique relationship between the two
Wind novels, Beck says, was the tricky part of arguing
Randalls case. We had to show that Alice did not
intend a sequel; the characters are different, the story is
different, he says. But you have to conjure up a
work in order to parody it. At what point do you get too close?
We say we didnt get that close.
number of expert witnesses on the Mitchell side, though, say
The Wind Done Gone did get too close, attaching itself
to Gone With the Wind while failing to offer originality.
Alan Lelchuk, novelist and English professor at Dartmouth College,
wrote in a statement that The Wind Done Gone is,
to me, a sub-literary parasitical work, dependent in its publication
solely on its relation to Gone With the Wind, and having
little or no literary value.
of the Mitchell Trusts argument rests on this codependence
between Mitchells novel and The Wind Done Gone.
It really is a sequel, Anderson says. It takes
the story and some of the characters, particularly that of Rhett
Butler, and narrates events which follow the end of Gone
With the Wind. Thats what a sequel is.
over a month after the temporary injunction stopping publication
of The Wind Done Gone was issued, a three-judge panel
in the Eleventh Circuit Court of Appeals, headed by Chief Judge
Stanley Birch 70L-76LLM, heard arguments from both
sides. They then issued a partial ruling from the bench, saying
they would vacate the prior injunction immediately, finding
it to be an unlawful violation of the First Amendment. The panel
did not rule on the copyright matters, but within the hour Beck
had an order in hand allowing publication of The Wind Done
Gone to go forward.
moment, Beck says, was one of the high points of
my career and my life.
a more complete opinion handed down in October, the panel of
judges acknowledged Randall borrowed liberally from Mitchells
work in The Wind Done Gone but strongly indicated that
the fair use claim will prove a viable defense if the case advances
work] is principally and purposefully a critical statement that
seeks to rebut and destroy the perspective, judgments, and mythology
of [Gone With the Wind], Judge Birch wrote. Halting
its publication, he concluded, was at odds with the shared
principles of the First Amendment and the copyright law, acting
as a prior restraint on speech because the public had not had
access to Randalls ideas or viewpoint in the form of expression
that she chose.