Judge Blocks 'Wind Done Gone'; HM Appeals

Despite the support of various literary figures and industry organizations backing the publication of Alice Randall's The Wind Done Gone, the controversial forthcoming novel based on Margaret Mitchell's Gone with the Wind, a district court judge in Atlanta has issued a temporary restraining order that prevents Houghton Mifflin from further publication and distribution of the work.

Houghton Mifflin has been granted an expedited appeal with the 11th Circuit Court of Appeals in Atlanta in hopes of overturning the April 20 injunction. Barring some kind of settlement, the case would likely go to trial in June. Randall's novel retells the story of Gone with the Wind from a slave's perspective and the Mitchell trustees have claimed that her retelling infringes the Mitchell copyright.

Martin Garbus, of the firm Frankfurt, Garbus, Kurnit Klein & Selz, attorneys for the Mitchell trust, told PW that "the judge found unabated piracy; that this book is a sequel and has nothing to do with parody or satire. If it were either, I would have defended the book myself." Garbus told PW there was no chance for a settlement in the case.

Wendy Strothman, executive v-p and publisher of HM, said of the appeal, "We stand by our belief that Alice Randall's work is a political parody and the publication of The Wind Done Gone is proper." Strothman also told PW, "We're disappointed. I've been in publishing since 1973 and I've never seen anything like this ruling." Strothman also noted that HM had offered to place the words "unauthorized parody" on the cover of the finished book, but the estate has declined the offer.

"We care about copyright," said Strothman. "The Mitchell trust can't ban ridicule or criticism of their work. Computer hackers are the real threat to copyright, not a young African-American writer."

Nevertheless, Judge Charles Pannell agreed overwhelmingly with the Mitchell trustees and ruled against HM and Randall on virtually every legal issue. The preliminary injunction indicates a strong likelihood that the plaintiff would prevail on its claims in court.

Pannell said that the Randall novel uses 15 well-known and copyrightable characters from Gone with the Wind along with the "physical attributes, mannerisms and the distinct features that Ms. Mitchell used to describe them." And while HM claimed that the work is a parody of GWTW, and therefore within the realm of legal fair use, Pannell roundly disagreed, describing the Randall novel as "some parody coupled with extensive duplication of the original."

Pannell noted that while The Wind Done Gone does offer new, more historically accurate information about plantation life in the post–Civil War South, this new information has been added to an existing, protected story to produce, in effect, an unauthorized sequel. "If the work is intended to supply the missing story of the earlier work... then it is a sequel," wrote Pannell. "If the work tells the same story through different eyes, then it infringes on the copyright owner's right to create and control derivative works."

The judge also emphasized that fair use, the right to borrow from an original work without seeking permission, affords "greater protection" for a work of "creative, imaginative" fiction than for a scholarly or historical nonfiction work. Pannell even ruled that Randall's novel would likely interfere with the potential sales of St. Martin's Press's forthcoming GWTW sequel, which is expected to feature GWTW's Rhett Butler, "a story that Ms. Randall attempts to largely tell in The Wind Done Gone."

Garbus told PW that galleys of The Wind Done Gone were offered for sale on the eBay aution site. EBay has since removed the galleys.