Term Paper: Sun Trust Bank vs. Houghton

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[. . .] These media constantly resort to parodies, like "The Wind Done Gone." The New York Publishing House stated that one of its literary treasures, "The Lord of the Rings" by JRR Tolkien, was the object of a parody in the Harvard lampoon version, "Bored of the Rings."

Earlier Parodies

Other critics did not think that Randall's case was that big because it was not the first time a black author criticized the conditions of the blacks in the South. In 1967, Margaret Walker wrote the very successful novel, "Jubilee" the synopsis of which was quaintly very close to that of Mitchell's, as can be inferred in this blurb that was then written about it:

Daughter of the while plantation owner and his black mistress, the heroine was conceived, born and reared to womanhood behind the House steeped in knowledge for the times and the people."

And in 1892, Frances Ellen Watkins Harper wrote Iola Leroy ("Shadows Uplifted") to challenge the myth of "moonlight and magnolias that held sway in Southern fiction since the fall of Appomattox (Davis 2002). Walker and Harper were among those who "reinterpreted" the legend of the South, as the land of kind planters, beautiful ladies and contented slaves (Davis), but as pungently and sharply as Alice Randall and her "The Wind Done Gone."

In conceiving her story, Randall said she was fascinated with Mitchell's novel and had questions to ask about the mulattos and Scarlett's half-sister. Randall said she felt that she had to answer her own questions and tell a story that had not been told. These questions led her to create Cynara, the daughter of Gerald O'Hara and Mammy, who would outdo Other (Scarlett) in "wit, resourcefulness and strength (Davis)."

As mentioned earlier, Randall reversed the situation established or created by Mitchell. In "The Wind Done Gone," the slaves were in the position of power and the whites were reduced to weakness. Black Mammy and Miss Priss headed the household, Dreamy Gentleman (Ashley) was a homosexual and Miss Priss had power over him for knowing his secret. Mealy Mouth was capable only of procreating. Lady Ellen, who was a strong and pious character in Mitchell's story, was humbled in Randall's novel by the knowledge that she and Scarlett and her sisters had Negro blood (Davis). R (or Rhett) had none of the appeal he had in Mitchell's novel. Cynara discovered that Other (Scarlett) was no true source of envy or threat to her because it was she whom Mammy loved unconditionally. She was thus made free to live her own life from behind Other's shadow (Davis). Many readers found Randall's story and treatment "clever."

In an interview, Randall said that, sometime in the past, African-Americans were prohibited by law to read and write. She then very sadly noted how and why obstacles were placed on the way of a black woman at this time to tell her story. She also said that she had to do a parody, not a sequel to Mitchell's work, or her family would take offense against it.

Records reveal that the original working title for "Gone with the Wind" in 1936 was "Bugles Sang True," and that the Southern heroine's earlier name was not Scarlett but Pansy (O'Hara). If Randall chose other names for her characters, all that court battle could have been prevented (Ellison 2001).

Houghton Mifflin Company hoped that the same thing would happen to "The Wind Done Gone" as did to a 1989 dispute where it figured, also involving a parody by Roy Orbison's hit song, "Pretty Woman." Rock group 2 Live Crew later came out with "Ugly Woman" and Orbison's estate sued the group for violation of copyright. In 1994, the Supreme Court ruled that "Ugly Woman" was a parody and, thus, was protected by the First Amendment (Amanillo Globe News).

Houghton Mifflin Company also noted that famous works, such as Herman Melville's Moby Dick" and Charlotte Bronte's "Jane Eyre" had "spin-offs and hoped that case of Randall's novel would be decided the same way.

Limitations to Copyright

It could have been an oversight or the consequence of impulse. But Alice Randall's novel was protected, not only by the First Amendment, which provides and protects one's rights to free speech and press without interference from the government. It was, more importantly and ironically, protected by the Copyright Law itself, which Mitchell's lawyers invoked in filing for an injunction to stop the publication of Randall's book. Section 107 of the same Chapter

Chapter I) and same title (Title 7) establishes the limitations to the exclusive right through "fair use" for criticism and comment, which do not constitute infringement of copyright according to:

a. The purpose and character of use if commercial or non-profit) b. The nature of the copyrighted work c. The amount and substantiality of the portion used to the copyrighted work d. effect of use upon the potential market or value of the copyrighted work

Since Randall's novel was/is basically a caricature of how the blacks were treated in the South, especially in those times (of Mitchell's setting), "The Wind Done Gone" fulfilled the requirement for purpose and character of use (a) as well as for the value of the work (d). For these reasons, Randall's novel would qualify as an exception to the rule of copyright or fall under two of the four categories of limitations to the exclusiveness of copyright (Findlaw.com).

To these grounds, however, Mitchell's estate's lawyers argued that Randall used all of Mitchell's main characters and, thus, could not qualify as a simple parody. Lead lawyer Morrison also reasoned that Randall would only get rich off Mitchell's work if her book was allowed to be published. He, moreover, refused to acknowledge that "The Wind Done Gone" would expose "Gone with the Wind" as a sympathetic work of racism of the South, rather that Randall, who was very thorough in lifting the storyline and characters of Mitchell, according to Morrison, would just make a ton of money by plagiarizing "Gone with the Wind."

Morrison emphasized that the most important thing to the heirs and readers of Mitchell was "protecting her image," which materialized through the establishment of a two-story, red-brick museum building. It was in this structure where Mitchell spent nine years writing her novel by tapping out the manuscript on a second-hand Remington typewriter.

When asked about the "glaring stereotypes in her novel, the lawyers said that these proceeded from Mitchell's childhood in the South, which became the setting of her novel.

On its May 25 hearing of the case, the 11th Circuit Court of Appeals in Atlanta lifted the injunction placed by the U.S. District Court, which banned the publication of Randall's novel, "The Wind Done Gone" by Houghton Mifflin Company.

Houghton Mifflin Company Executive Vice President for the Trade and Reference Division Wendy Strothman, called that day's court decision "an absolute victory for both the First Amendment and the Fair Use Doctrine of the Copyright Act." She saw these laws as both crucial to American culture and freedom of expression, and expressed her company's gratitude for the speed by which the Court acted on the issue, which would benefit "prominent authors, corporations, media companies and First Amendment advocates" of Randall's "parody."

Houghton Mifflin planned to continue with the publication of the book, the author's first. The first printing would run 25,000 copies and estimated to be in bookstores in two to three weeks' time.


1) Associated Press (The). (2001).Judge Suppresses "The Wind Done Gone" Novel.

2) Davis, Claire. (2002). "The Wind Done Gone": a Mild Breeze. Book Review.

Cable News Network LP

3) Ellison, Michael.(2001). Frankly, Writer's Estate Gives a Damn about "The Wind Done

Gone." New York: The Guardian

4) Findlaw.com. (2002). Copyright Law.

5) Freedomforum. org. The First Amendment

6) Internet Movie Database, Inc.(2002). Gone with the Wind. plot summary.

7) Mitchell, Margaret. (1936) Gone with the Wind.

8) Nomad Group (The). (2002). Margaret Mitchell and "The Wind Done Gone."

9) Randall, Alice. (2001) The Wind Done Gone. Houghton Mifflin and Company

10) Strothman, Wendy J. (2001) The Wind Done Gone. Trade and Reference Division:

Houghton Mifflin Company

11) Weaver, Teresa K. (2001).… [END OF PREVIEW]

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