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What — me worry? Judge's suppression of Gone With the Wind parody raises concerns

Inside the First Amendment

By Kenneth A. Paulson
Senior vice president, the Freedom Forum
Executive director, First Amendment Center

05.20.01

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And now testifying for the defense: Alfred E. Neuman.

I immediately thought of the MAD magazine cover boy after hearing of a federal district judge's decision to bar the production or sale of The Wind Done Gone, a new book that retells Gone With the Wind from the perspective of the child of a white man and his black slave.

While Judge Charles Pannell acknowledged that the new book by Alice Randall includes the author's social commentary on the antebellum South, he concluded that the book violates copyright law because of the extensive use of fictional characters and scenes from the Margaret Mitchell novel.

Copyright laws are intended to protect the property rights of an author, but there are a number of exemptions, including the "fair use" of a segment of the work for nonprofit, educational purposes and the targeting of a work by a parody.

I learned about fair use in law school, but I learned about parody at my hometown newsstand. For almost 40 years, MAD has lampooned books, films, television shows and the rest of popular culture, giving most young Americans their first glimpse of parody.

Movies, books, television shows and all forms of pop culture have been the target of MAD's editors and writers.

Witness the magazine's classic parody entitled "Groan With the Wind." Like Randall, MAD used all the pivotal figures from the book (and the film). Like Randall, MAD changed their names: "Retch Butler" romances "Harlott." Like Randall, MAD makes some points about society as a whole (comparing slavery to college basketball) and like The Wind Done Gone, the parody offers new twists: "Retch" runs off with "Ashtray Witts."

Of course, MAD parodies are full of high camp and low humor. There's no mistaking the satirical intent and the often-adolescent finger-pointing.

Randall's work is considerably more restrained. It's a thoughtful book laced with political and social viewpoints.

That probably contributed to Judge Pannell's determination that while "The Wind Done Gone in part criticizes and satirizes Gone With The Wind its overall purpose and effect is to create a sequel to the older work."

Parody is important in a society that prides itself on a free exchange of ideas. We should have the right to freely make light of serious institutions. And make no mistake, Gone With the Wind is a serious institution.

The most disturbing aspect of Judge Pannell's ruling was his remedy. Rather than let the book be published and then allow the Mitchell estate to sue for damages, he instead decided to keep the book from being sold or read by anybody. The Supreme Court has made clear that suppression of a publication is only permissible under the rarest of circumstances: demonstration of an immediate and concrete risk to the nation.

The Wind Done Gone hardly poses such a risk. In this case, a federal judge has suppressed a book containing political and social commentary, ignoring the fundamentals of the First Amendment in the process. Writing about our society — past, present and future — is at the heart of our nation's values.

Judge Pannell's preliminary injunction will be followed by a judicial decision on the merits of the case. I believe The Wind Done Gone will eventually be published.

Satire shouldn't have to be as over-the-top as what appears in MAD magazine to warrant First Amendment protection. If we allow property rights to trump free expression, we make copyright holders richer and make society pay the price.

Ken Paulson is executive director of the First Amendment Center with offices in Arlington, Va., and Nashville, Tenn. His mailing address is:
Ken Paulson
First Amendment Center
1207 18th Ave. S
Nashville, TN 37212

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