Join our final new author, Kristina, once a month for “Miss Mens Rea”. Once a month, you will find herein intriguing articles on strange court cases, odd laws, and curious legalities. Kristina is a law student at Southwestern Law School, currently studying entertainment law. I hope you enjoy her series!
One of the most hotly contested areas of copyright law centers around the concept of fair use. Fair use is an affirmative defense against alleged copyright infringement. One of the more famous fair use decisions involves the famous novel Gone with the Wind and its unauthorized parody The Wind Done Gone.
Gone with the Wind by Margaret Mitchell has sold over 30 million copies worldwide and spawned sequels, an Oscar-winning film, musical adaptations, even a ballet. But in 2001, it was parody novel The Wind Done Gone that angered Mitchell’s estate enough to file a lawsuit for copyright infringement against the novel’s publisher Houghton Mifflin. Mitchell’s estate sought an injunction to stop publication of the novel and the publishers claimed fair use.
The Wind Done Gone is told from the point of view of a slave woman named Cynara. It uses many of the same characters as GWTW and even copies entire scenes and lines of dialogue. Based on this, the Court found that there was substantial similarities between the two works.
However, the Court also found that the use of GWTW in TWDG constituted a fair use. Parody is a classic form of fair use and courts look at whether the new work uses the copyrighted work to make comment or criticism of the copyrighted work. Speaking to this, the Court here said the “parody needs to mimic an original to make its point.” So what was the point? According to the Court, TWDG was meant to “explode the idealized portrait of the antebellum South during the Civil War and Reconstruction.”
On appeal, the 11th Circuit vacated the injunction and sent the case back down to the lower courts.
So what does this mean? It means that classics such as Pride & Prejudice & Zombies, The Starving Games (a B-movie parodying blockbuster films such as The Hunger Games), and The Wind Done Gone can take as much as they want from copyrighted works and still be off the hook for infringement, as long as they make some sort of comment or criticism of the original. Of course, parody isn’t the only form of fair use, but it is by far the most popular
Suntrust Bank v. Houghton Mifflin Co. http://scholar.google.com/scholar_case?case=13094222792307527660