Saying it considered The Wind Done Gone a parody and thus protected under the terms of fair use, a three-judge panel seriously undermined the Mitchell estate's suit against Houghton Mifflin. Nevertheless, a lawyer for the Mitchell estate said his client will proceed with a trial and may even take the case to the Supreme Court.
The judges, handing down a written ruling on the injunction after vacating such an order in the spring, said that the trial court's ruling was misguided. They did, however, send the case back to the lower court for a trial in which the court will hear live testimony.
Even if the Mitchell estate wins the trial, it would likely lose on appeal, since it would face the same judges who ruled against them here. In such a case, Martin Garbus, attorney for the Mitchell estate, said he could envision the possibility of taking the case to the Supreme Court.
There had been speculation that an especially unfavorable ruling might dissuade the Mitchell estate from going forward with a trial, because they may have already sent the message that they will vigorously defend their copyright. But the possibility of presenting testimony gives them new reason for optimism. "We believe that we have enough proof that [the decision to go to trial] won't just be symbolic," said Garbus.
For her part, Houghton chief Wendy Strothman said she feels "vindicated" by the ruling. The house is scheduled to bring out the paperback edition of Wind in April. The book was a hardcover bestseller.