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"GONE WITH THE WIND" VERSUS "THE WIND DONE GONE": Parody, Copyright, African-Americans, And The First Amendment

Monday, Apr. 30, 2001

At the request of the Margaret Mitchell Trust, federal district judge Charles A. Pannell, Jr. recently issued an injunction against the publication of screenwriter Alice Randall's forthcoming novel "The Wind Done Gone." The book re-tells the story of Mitchell's Southern saga "Gone with the Wind" from a slave's perspective.

The case raises important issues regarding the First Amendment-protected right of parody. It also brings up the significant question of whether this right is interpreted too narrowly when the parodist happens to be an African American lampooning a "white culture" work of art.

The "Wind Done Gone" Decision

In court, Randall and her lawyers claimed "The Wind Done Gone" is a First Amendment-protected parody, designed to mock the original novel's racism.

Their argument is a strong one. According to the Supreme Court, parody is characterized by its "use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works." A parody, the Court elaborated, is a "distorted imitation" that can steal elements of the original, including its very heart, for "it is the heart at which parody takes aim." The key is that parody is commentary.

"The Wind Done Gone" seems to fit these descriptions perfectly. While it appropriates elements of "Gone with the Wind," it does so to condemn the prior novel. It is a paragon of parody.

Morrison tried to persuade the court by asking a series of rhetorical questions: "Who controls how history is imagined? Who gets to say what slavery was like for the slaves?" (Hopefully, not just Margaret Mitchell, she strongly implied.)

Persuasive as Morrison's point is, Judge Pannell sidestepped it, rejected the parody argument, and ruled for the Mitchell Trust. Randall is now appealing his decision to the Eleventh Circuit Court of Appeals.

African-American Parodies On the Defensive

One of the aspects of the Randall case that makes it particularly interesting is that it is the second famous fight in recent decades over a parody written from an African-American perspective, targeting and borrowing from a "white culture" song or book. In both cases, the fight arose because at least one reviewing court ignored the First Amendment in order to side with the white plaintiff.

The first was the 1994 case of Campbell v. Acuff-Rose Music, Inc., better known as "the 2 Live Crew case." There, a music company sued the African-American band 2 Live Crew, claiming that the group's song "Pretty Woman," infringed the copyright of white country singer Roy Orbison's earlier song, "Oh Pretty Woman." 2 Live Crew claimed parody and won in the end – but not until the group had gone all the way to the Supreme Court after losing at the appellate level.


Together, Randall's case and the 2 Live Crew case – while not, of course, sufficient to make an ironclad statistical argument – do raise an interesting contrast. White authors who write about whites or "white culture" generally seem to be able to publish parodies with impunity. (Numerous "Saturday Night Live" sketches, for example, come to mind; very, very few are the subject of lawsuits.) And if white authors borrow characters, as Randall did to write "The Wind Done Gone," they are lauded.

Indeed, as New York Times writer David Kirkpatrick has remarked in discussing the Randall case, Tom Stoppard and John Updike have won praise by borrowing Shakespeare's characters, while Shakespeare himself borrowed liberally from writers who preceded him.

Yet in the Randall and 2 Live Crew cases, borrowing became not a merit, but a sin. Authors who wrote parodies from an African-American perspective, and borrowed from a white book or song in order to lampoon a "white" viewpoint, did not get praised. They got sued. And they had to undertake a costly legal fight to defend their right to contribute to, and critique, American literature and music.

The ruling in the Randall case is all the more remarkable – and wrongheaded – given the 2 Live Crew Supreme Court ruling that preceded it. The opinion, by Justice David Souter for a unanimous Court, afforded parody exceptionally strong protection, suggesting that parody, by its nature, must significantly infringe copyrighted material in the original, and has a right to do so.

In case you missed it, the original Orbison song – and the later commercials that used it – featured lyrics such as "Pretty Woman, walking down the street/Pretty Woman, the kind I like to meet/Pretty woman, I don't believe you, you're not the truth/No one could look as good as you. Mercy!" At the end of the song, the singer is amazed that the Pretty Woman, who he thought would "walk on by," is "walking back to me."

The 2 Live Crew knockoff borrowed Orbison's bass riff and featured lyrics such as "Two timin' woman/Girl, you know it ain't right/Two timin' woman/you's out with my boy last night/Two timin' woman that takes a load off my mind/Two timin' woman now I know the baby ain't mine." Walking on back to him is the last thing the speaker wants the Pretty Woman to do; he's just happy he's not saddled with the responsibilities of fatherhood.

The way the 2 Live Crew version of "Pretty Woman" parodies the Orbison version's fantasy of perfect love, replacing it with the paranoia of "Mama's baby, Papa's maybe," is easy to see. Orbison is happy to get the Pretty Woman; 2 Live Crew's singers are just as happy to get rid of her.

African-American Perspective Parodies Lose in the Lower Courts

Still, even though it was quite obvious that 2 Live crew's "Pretty Woman" was a parody – and a black culture parody of white culture, at that – the Sixth Circuit Court of Appeals somehow missed that point. It took the Supreme Court to see the parody, and Justice Souter's opinion for the Court to imply subtly that race was an issue.

Souter explained that 2 Live Crew's "Pretty Woman" was a portrait of "street life" that mocked the original's "naiveté." He also quoted a lower court judge's blunter assessment that the song "was clearly intended to ridicule the white-bread original."

The idea of presenting an African-American perspective on a white cultural artifact is even more obvious in the conception of "The Wind Done Gone" than in 2 Live Crew's "Pretty Woman." Even the Hollywood-slave-dialect title of "The Wind Done Gone" fairly screams parody.

But again, just as in the earlier stages of the 2 Live Crew case, an African-American parody has failed – with Judge Pannell's recent ruling – to get its due.

A devil's advocate might point out, however, that there are two differences between "The Wind Done Gone" and 2 Live Crew's "Pretty Woman" that could justify Judge Pannell's ruling. On closer examination, however, these differences, while real, are irrelevant.

First, Judge Pannell complained that Randall's novel borrowed too liberally from "copyrighted characters, plots and scene." In contrast, the Pretty Woman is not exactly a "character." (If she is, Julia Roberts may be in trouble too.)

But since parody is defined by borrowing, it shouldn't matter whether what is borrowed is a title, refrain, and bass riff, as in "Pretty Woman," or characters and settings, as in "The Wind Done Gone." The question is whether the appropriation fuels a critical commentary on the original, and in both cases, it plainly does.

Second, Judge Pannell worried that unlike "Pretty Woman," "The Wind Done Gone" "tells the same story through different eyes," and therefore "infringes on the copyright owner's right to create derivative works," such as sequels, prequels, and what we might call re-quels (the same story, but from a different character's perspective).

But few, if any, re-quels actually exist – suggesting that this is not the type of derivative work most copyright owners care to pen. There's a reason for this; the narrator is generally the character that has much of the author's sympathy, or, for a darker story, is a bete noire.

And in the case of "Gone With the Wind" in particular, there is little chance that the highly conservative Mitchell estate would have licensed a "slave's eye-view" re-quel. Any right the Mitchell Trust is therefore asserting is, therefore, the right to kill derivative works by refusing to license them, not the right to create such works.

Parody's License to Kill

One might think this is only tit-for-tat, and that "Gone With the Wind" ought to be able to take aim at "The Wind Done Gone." After all, "The Wind Done Gone" is certainly trying to kill off "Gone With the Wind." As author Alice Randall remarked, "I did not seek to exploit 'Gone with the Wind.' I wanted to explode it."

But parodies, according to Justice Souter, have a special license to kill: "[P]arody may quite legitimately aim at garroting the original, destroying it commercially as well as artistically."

"The Wind Done Gone" is no "Gone With the Wind II." Nor is it "Gone with the Wind: Rhett Butler's Story." It is an incendiary novel, bent on leaving "Gone with the Wind" in flames.

Certainly, if "The Wind Done Gone" is published, defenders of "Gone with the Wind" will have their scathing criticism, and perhaps their parodies, too. That's their right. Let us hope that the appeals court, resolving Randall's case, lets the explosions begin.

FindLaw columnist Julie Hilden is a freelance writer. A graduate of Yale Law School, she practiced First Amendment law at the D.C. firm of Williams & Connolly from 1996-99. Her memoir, The Bad Daughter, was published by Algonquin Books in 1998, and she is currently working on a novel.

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