Any comments? How can property rights trump free speech?

From the Washington Post A New Take On the Plantation

By Jed Rubenfeld

Thursday, April 26, 2001; Page A27

A century and a half ago, southern states banned a novel exposing truths about black slavery. Last week a federal district judge in Atlanta banned another novel exposing truths about black slavery. "Uncle Tom's Cabin" had to be suppressed, it was said, to protect slaveowners' property rights. "The Wind Done Gone" has to be suppressed, ruled the federal judge, to protect intellectual property rights.

"The Wind Done Gone," by Alice Randall, is told through the eyes and words of a woman slave born on the plantation from Margaret Mitchell's famous novel "Gone With the Wind." According to the Mitchell estate lawyers, "Wind Done Gone" is a "mere sequel," not a work deeply critical and transformative of the original. Is this true? No one now has any way of knowing. That's the whole problem with censorship -- or what the law calls "prior restraints."

I have read "The Wind Done Gone" because Alice Randall is an old friend and, as of two weeks ago, a pro bono client. Unlike a number of works in this genre -- say, Tom Stoppard's "Rosencrantz and Guildenstern Are Dead" -- the protagonist of "Wind Done Gone" is wholly new. Its heroine is Cinnamon, a mulatto half-sister of Scarlett, the daughter of Scarlett's father and "Mammy." Raised unschooled, unloved and unrecognized on the estate, Cinnamon finds her way to Washington, D.C., in the aftermath of the Civil War, where she sees the all-too-brief flowering of a black presence in Congress during Reconstruction.

The very thought that such a person as Cinnamon lived, never mentioned in Mitchell's book, reminds readers of two things: first, that an entire world of human slave life had to exist behind the scenes of every Tara. And second, that this slave world must vanish, be rendered invisible, in order to make possible the nostalgic, romantic view of the Old South that underlies a beautiful story such as "Gone With the Wind."

The banning of "The Wind Done Gone" is part of a growing conflict between intellectual property and freedom of speech. The Church of Scientology has used copyright law to stop people from publicizing and criticizing its texts. Pharmaceutical companies, claiming a patent on human genomic sequences, are trying to stifle basic scientific research. The International Olympic Committee is trying to curtail "unauthorized" coverage of the Olympics; in fact, at the last Olympics, the IOC tried to censor letters sent home by individual athletes describing their own experiences.

Most Americans are unaware of how seriously these claims threaten freedoms they take for granted. If Bill and Hillary Clinton had wanted to suppress the novel "Primary Colors" on the grounds that it stole their right to exploit commercially the telling of their own life stories, could they have banned that book or the movie that followed?

Intellectual property rights do not trump the First Amendment. If I write an academic book criticizing the invisibility of black life in "Gone With the Wind," I would be exercising my freedom of speech. My book might go over the plot in detail, discuss the characters by name and quote some of Mitchell's memorable lines, but it would undoubtedly be constitutionally protected. Would it make a difference that my book made a profit? Of course not. If profit motive negated freedom of speech, this newspaper would lose its protection.

My book, of course, would reach only a limited number of people, because mass audiences don't read academic criticism. But suppose that a writer came along talented enough to say much the same thing but more powerfully, and to a far larger audience, by telling a story through the halting words of a slave girl, whose freedom begins only when "Gone With the Wind," together with the Old South, comes to its fiery end. Why should this novel have less First Amendment protection than my book? Novels have often been the vehicles for political speech -- as "Primary Colors" illustrates.

No author has the right to steal other writers' texts or to steal their audience by writing "mere sequels." But everyone should be able to see that "The Wind Done Gone" is much more than a "mere sequel" to "Gone With the Wind." No one, however, is going to have a chance to see the book at all, should the present injunction stand.

If the Mitchell heirs want some of the profits from "The Wind Done Gone," let them make their claim to them. But in America, with our history and our Constitution, no book of this kind should be banned.

The writer is a professor at Yale Law School.

© 2001 The Washington Post Company

-- Anonymous, April 26, 2001

Answers

"Last week a federal district judge in Atlanta banned another novel exposing truths about black slavery".

Or, to be more accurate, last week a federal district judge banned another novel which infringed on copyrighted material. From the other side of the story...

http://dailynews.yahoo.com/h/nm/20010421/re/life_book_dc_4.html

[snip] Pannell, [U.S. District Judge] who heard from both sides in court on Wednesday, found that ``substantial similarities'' existed between the two works and that those similarities involved copyrighted material.

``The new work's use of copyrighted materials from 'Gone With the Wind' goes well beyond that which is necessary to create a parody and, thus, makes excessive use of the original work,'' Pannell said in his order.

I fail to see the big deal in the banning of this book. Copyright laws grant exclusive rights and protections. Obviously this judge felt the author of the book crossed the line and infringed on the copyrighted protections due "Gone With the Wind".

The writer of this article makes a strong case against the banning of this book. (That's to be expected, being the author is his "old friend" and "pro bono client".) I'm sure however, that within his 51 page decision the judge also built a very strong case.

I have a problem with this writer's blanket statement; "Intellectual property rights do not trump the First Amendment." I can write and publish a sequel/parody of a well known children's book but, if entitling it "Green Eggs and Spam" is one of the few changes I make from the original material, I can expect it to be banned.

When is a sequel "more" than a mere sequel? Apparently it can be a fine line which on occasion must be decided in court.

-- Anonymous, April 26, 2001

Apparently this event has been out for awhile even though I first read about it this morning. Later in the day I finally opened this weeks Time Mag. and got a different slant on things--similar to what you posted CD.

At least for me, GWTW was a wonderful romantic read. I thought it would be interesting to read the other side of the story.

-- Anonymous, April 26, 2001

Does this explain why Uncle Tom's Cabin was banned?

-- Anonymous, April 26, 2001