Tomorrow Is Another Day in Court

The psychic stakes in the battle over Gone With the Wind

"I want the outer semblance of the things I used to know, the utter boredom of respectability…. the calm dignity life can have when it's lived by gentle folks, the genial grace of days that are gone… What is broken is broken—and I'd rather remember it as it was at its best."

That's Rhett Butler, speechifying during his final appearance in Margaret Mitchell's epic 1936 novel, Gone With the Wind. He's telling the book's resilient heroine, Scarlett O'Hara, that he simply can't bear to live in the Reconstruction-era South and that he's taking off, "perhaps to England—or to Paris." Post-Civil War Atlanta, explains Rhett, "is too new for me, too raw." (In the same scene, he also famously tells Scarlett that he doesn't "give a damn" about her affections.)

In pleading for a nostalgic, romantic, and delusional vision of the antebellum South, Rhett could have been the star witness in an ongoing legal battle that got underway this April in Atlanta. In a federal District Court there, the Mitchell Trusts, which owns the copyright to Gone With the Wind, successfully blocked the publication of Alice Randall's novel, The Wind Done Gone, arguing that the new book engaged in "blatant and wholesale theft" of Mitchell's fictional universe. The Wind Done Gone tells the story of Gone With the Wind from the perspective of Cynara, a mulatto ex-slave who is also Scarlett's unacknowledged half-sister.

The case raises a number of issues related to intellectual property, perhaps none more contentious and fascinating than this one: Is it possible to control characters and texts that have entered the public domain in fact, if not in law? In the end, though, the case is less about legal technicalities and more about dueling interpretations of the American experience with slavery.

The Wind Done Gone essentially flips the moral landscape of Mitchell's book by presenting whites as lazy and stupid and blacks as intelligent and hard-working. It also includes scenes of miscegenation (Rhett leaves Scarlett for Cynara) and gay and lesbian characters (Ashley Wilkes is finally outed) that are unimaginable, if deliciously latent, in the original. "I did not seek to exploit Gone With the Wind," the 41-year-old Randall, best known for writing the hit country song "XXX's and OOO's" for Trisha Yearwood, told The New York Times. "I wanted to explode it."

Although copyright law provides an exception for satire and parody, Judge Charles A. Pannell Jr. issued a preliminary injunction that keeps Houghton-Mifflin from publishing the book until the case is settled. Pannell ruled that Randall's novel veered into "piracy" and plagiarism by using more than a dozen barely altered characters from Gone With the Wind, and by incorporating too many scenes and too much dialogue from the original. The result, wrote Pannell in his decision, "removes the new work from the safe harbor of parody."

The Wind Done Gone, he said, "could serve as a market substitute for a sequel," which would reduce the Mitchell Trusts' "ability to continue to tell the love story of Scarlett and Rhett" and earn money from the original work and any official spin-offs.

Under current law, the Mitchell Trusts—which authorized a 1991 sequel, Scarlett, and reportedly has another one in the works—maintains control of Gone With the Wind until 2036. Houghton-Mifflin has appealed the injunction, and the next round of hearings is scheduled for late June.

The U.S. Constitution justifies copyright and patent law on essentially utilitarian grounds. Intellectual property, unlike real property, is explicitly a means to an end (the betterment of society) and not an end in itself. By granting an exclusive monopoly on a work for a limited period, copyright is supposed to serve the common good by providing an incentive to "promote the Progress of Science and useful Arts." Following from that, the core of Pannell's ruling is the belief that The Wind Done Gone would hurt sales of Gone With the Wind and any related works directly authorized by the Mitchell Trusts.

That may not matter. In 1994, the U.S. Supreme Court ruled unanimously that "fair use" covers unauthorized parodies even when they do economic harm to the original. But it is highly dubious that The Wind Done Gone would hurt the Mitchell Trusts' bottom line.

Literature is awash with examples of works that retell well-known tales from the perspective of new characters. Thus Grendel, John Gardner's 1971 retelling of Beowulf; The True Adventures of Huckleberry Finn, John Seelye's 1970 revision of the Twain classic; and Foe, J.M Coetzee's 1986 reshaping of Robinson Crusoe. Perhaps the most critically and commercially successful example of this in the past half-century is Jean Rhys' 1966 novel, Wide Sargasso Sea, which depicts a young Bertha Mason before she becomes Rochester's mysterious, crazed Creole wife in Jane Eyre.

One might also throw into this mix less lofty material, including fan-generated Star Trek stories that imagine Kirk and Spock as lovers and over-the-top send-ups such as Harvard Lampoon's Bored of the Rings, a popular late-'60s parody of J.R.R. Tolkein's famous fantasy cycle. (Houghton-Mifflin, which publishes Tolkein in the U.S., has itself never taken action against the book.)

None of these literary knock-offs, it is safe to say, has in any way weakened the audience or market for the works that inspired them. If anything, they have greatly expanded interest in the originals. On its page for Bored of the Rings, for instance, Amazon.com notes that "customers who bought this book also bought" The Lord of the Rings, The Complete Guide to Middle-Earth, and other Tolkein-related titles. Wide Sargasso Sea, a campus favorite for over a decade, is now routinely taught in conjunction with Jane Eyre, and has put Charlotte Bronte's mid-19th century novel smack at the center of contemporary academic debates over feminism and post- colonialism.

Similarly, if The Wind Done Gone sees print, the likely outcome will be a burst of new interest in Gone With the Wind (already one of the very best-selling books in history). It's hard to imagine the bookstore that won't create displays prominently featuring both books and a host of related titles. College professors who might otherwise be skittish about Gone With the Wind's racial politics will likely assign both books as a way of discussing race relations, American history, and literary studies. It's virtually impossible that publishing Randall's "theft" of Gone With the Wind could do anything but fatten the finances of the Mitchell estate.

That said, Randall's novel would indeed steal something from the text that inspired it. The very idea behind The Wind Done Gone inflicts a sort of psychic damage to what Judge Pannell characterized in his decision as the "romantic, but tragic, world" of Twelve Oaks and Tara. By re-imagining Gone With the Wind through a slave's eyes, The Wind Done Gone would help strip away whatever sympathy for Rhett Butler's South still exists in some readers; it would make it that much more difficult to obfuscate the brutality of a society predicated upon slavery with phrases such as the "calm dignity life can have when it's lived by gentle folks" and "the genial grace of days that are gone." Or, for that matter, by claiming the novel unfolds in a "romantic, but tragic, world."

In other words, even as it might prompt more readers to turn their attention to Gone With the Wind, The Wind Done Gone has the potential to significantly change how they understand and appreciate Margaret Mitchell's novel. To be sure, this revisionary process has been underway since the book's appearance as a product of the Southern cultural revival of the 1920s and '30s. Certainly, in the wake of desegregation, the Civil Rights era, and a keener appreciation for the legacy of institu- tionalized and state-sponsored racism, Gone With the Wind has been read by most Americans on vastly different grounds than it must have been in its first few decades. Today, even as we can appreciate the text's odd and undeniable ability to affect us—the left-leaning literary critic Leslie Fiedler once admitted the book moved him to tears every time he read it—we are repulsed by the world it describes and the values it articulates.

In a deep sense, the copyright drama playing out in Atlanta—the City Too Busy to Hate—is really about how Gone With the Wind should be read 65 years after its publication and 136 years after the society it romances surrendered at Appomattox Courthouse.

In this latest episode, the Mitchell Trusts is cast in the role of Rhett Butler, turning away from the new and the "raw," even though—or perhaps because—it represents the best chance for a robust, vital future. The Trusts may ultimately prevail in court, but it would do well to remember that it is Scarlett who is the hero of Gone With the Wind. She alone—at least among the novel's white characters—recognizes that "tomorrow is another day" and is thus able to flourish in post-Civil War America.