The Scale Tips in Favor of Parodists and Freedom of Speech Advocates, as "Other" Version of Gone with the Wind Held Fair Use under Copyright Law

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I. INTRODUCTION

Balancing the competing interests of the First Amendment and copyright continues to be a challenge for courts when dealing with copyright issues. "On the copyright side, economic encouragement for creators must be preserved and the privacy of unpublished works recognized"; (1) on the First Amendment side, "[f]reedom of speech requires the preservation of a meaningful public or democratic dialogue...." (2) Attempts to strike such a balance have been made, in part, through the idea/expression dichotomy and the doctrine of fair use. Under the idea/expression dichotomy, "copyright assures authors the right to their original expression, but encourages others to build freely upon ideas and information conveyed in their work." (3) Authors and speakers are invited to convey the ideas and facts contained within the copyright holder's work--so long as they do so using their own original expression. (4)

First Amendment privileges have also been preserved through the doctrine of fair use. (5) Prior to federal legislation, courts applied the fair use doctrine without any bright lines to follow. Then in 1976, Congress codified the fair use doctrine, in an effort to preserve the doctrine's historical purpose of promoting creativity. (6) The exceptions carved out in the statute allow later authors to use a previous author's copyrighted work to introduce new ideas or concepts to the public. (7)

Some commentators, however, suggest that the idea/expression dichotomy and the fair use doctrine do not continue to protect free speech adequately. (8) For instance, there are times when speech will be less convincing, understandable, or believable if the speaker cannot copy existing expression. (9) Thus, the idea/expression dichotomy may fall short in truly protecting freedom of expression. In addition, because the fair use doctrine is applied on a case-by-case basis, judges are permitted, and in fact, in many circumstances, are required to critique the artistic meaning of a particular work in order to determine whether it merits fair use protection. That subjective determination and broad discretion have allowed some courts to deny fair use in certain cases merely where judges find the work to be distasteful. (10)

Although the debate surrounding copyright and the First Amendment continues, the Eleventh Circuit's decision in SunTrust Bank v. Houghton Mifflin Co. (11) tipped the scale in favor of the First Amendment and its advocates when it adopted a broader definition of parody, as developed in the landmark case, Campbell v. Acuff-Rose Music, Inc. (12) The circuit court's fair use analysis as to parodies also clarified some ambiguities that had remained unclear after Campbell and provided good illustrations for other courts in future cases. This Case Note reviews the decision, explores the court's rationale, and examines the decision's impact on copyright fair use jurisprudence.

II. SUNTRUST BANK V. HOUGHTON MIFFLIN CO.: FACTUAL AND PROCEDURAL BACKGROUND

The Mitchell Trust is the copyright owner of the novel Gone With The Wind, (GWTW) by Margaret Mitchell. (13) Over the years, the Mitchell Trust has authorized derivative works of GWTW, as well as the use of certain elements of GWTW in a wide variety of commercial contexts. (14) After discovering similarities between GWTW and a novel by the name of The Wind Done Gone (TWDG), SunTrust, the trustee of the Mitchell Trust, asked publisher Houghton Mifflin to refrain from publication and distribution of TWDG, which, according to SunTrust, was an unauthorized sequel to GWTW. (15)

TWDG, a novel by Alice Randall, revisits the setting and characters of Margaret Mitchell's classic civil war saga from the viewpoint of a slave. (16) It chronicles the diary of a woman named Cynara, the illegitimate daughter of Planter, a plantation owner, and Mammy, a slave who cared for Planter's children. (17) Cynara, who is of mixed race, is also the half-sister of "Other" (Randall's version of Scarlett O'Hara). …