I am looking for a copy of this work, preferably electronic.
My dad sent me a copy of the court's order - I thought it was interesting enough to quote here:
From Section I:
The contract for the Second Sequel specifically provides that neither Scarlett O'Hara nor Rhett Butler may die, thereby, according to the plaintiff, preserving the reading public's expectations, as well as the Mitchell Trusts' ability to authorize sequels in the future.
I guess the reason I find this interesting is because the Mitchell Trust seems only to care about money, not about the story, characters, or any other literary merit. This is a strong argument for a shorter copyright term.
From section II:
First, it lifts quotes directly from Gone With the
Wind. For example the first page of The Wind Done Gone states, "She was not beautiful, but men seldom recognized this, caught up in the cloud of commotion and scent in which she moved." Alice Randall, The Wind Done Gone at 1. By comparison, the opening line of Gone With the Wind states "Scarlett O'Hara was not beautiful, but men seldom realized it when caught by her charm...." Margaret Mitchell, Gone With the Wind at 3 (Macmillan Publishing
Co.1964) (1936).
So, Randall is kinda stupid. She would have had a much higher chance of survival if she had refrained from blatant copying for at least the first page. Of course, she still would have been screwed. Unfortunately, the law considers
fan fiction to be infinging, in part because an author has a copyright not only on a work, but also on the characters and invented settings (though not historical settings, such as the Reconstruction) therein.
According to the
defendant, any of the numerous events in The Wind Done Gone that "echoes an element" of Gone With the Wind does so to make that element appear ridiculous, or to suggest Gone With the Wind 's limitations, as understood in the new context. See Defendant's Response at 17 (relying upon Sitter
Decl. Ex. 1 at [paragraph] 15) [FN8] Doc. No. 11-1.
Well, that first line could really go either way. On Randall's side, it replaces charm with the appearance of charm - "commotion and scent". On the other hand, maybe that's not Randall's intent, and it was merely a rephrasing of the same thing. Without reading the rest of the work, I can't decide - which is why I want a copy.
The new work reverses the stereotypes of the earlier novel and thereby "endows the stereotypical black characters in Gone With the Wind with agency, cunning, and effectiveness." Sitter Declaration at [paragraph] 10. Thus, the defendant concludes that The Wind Done Gone mocks and ridicules Gone With the Wind and thereby achieves a parodic
effect. [FN9]
Well, I would say this is tranformative, but not parodic - that is, it rewrites the book in the way Randall wishes it had been written, rather than actually criticizing the original work. But what's wrong with that? Legally, it's obvious what's wrong with it - but here, the law is, IMO, making a mistake.
The new work is distinguishable from pure parody, because it does not simply engage in "[b]iting criticism" that may or may not suppress demand for the original but, instead, usurps the original's right to create its own sequel.
GWTW is going to create its own sequel? Help, books are becoming sentient! Don't let them get to the
Tree of Life, or there will be nothing left for people to do! (
Update: too late (yeah, this link will be broken for a while, as the book isn't out yet. The first chapter is on the www and is hilarious: http://www.sff.net/people/Jim.Morrow/witchpart1.html ))
So, if that's not what the court meant, what did they mean? Did they mean that the authorized sequels somehow followed from the original more naturally than Randall's sequel? Had Mitchell, directly or through her writings, authorized them, this might make sense - she could have chosen an author whom she trusted to continue her vision. But I don't think that the Mitchell Trust has any more claim (morally) to Mitchell's vision than any other reader of
GWTW. In fact, it has less, because its vision is clouded by an overriding desire to profit from
GWTW - it would not, for example, authorize a sequel in which Rhett Butler were to be kidnapped, raped, and murdered by Winnie the Pooh, because such a sequel would be virtually unsellable (although I would buy it). An independant author, however, could write such a thing without this worry (assuming she had the financial resources to publish it privately or on the net).
Could there be multiple possible sequels which follow from a novel? Certainly there could. Consider a sequel identical to the authorized sequel in every way, except with the name of some minor character (who was not in the first sequel) changed to a similar name - "Mark Smith" to "John Smith", for example (although then it would emphasize faith over works....) The idea that there's only one possible sequel is an extremely closed-minded view. A real-world example of multiple parallel sequels is
Speaker For The Dead and
Shadow of the Hegemon - both sequels to
Ender's Game. Since the same author wrote both, he must have considered them to both follow naturally from the story of
Ender's Game.
Of course, as
yerricde points out, "the original author ('s estate) was probably worried that the public would accept the [unauthorized] sequel as canon." This could definately affect the market for the authorized sequels, but that doesn't particularly bother me -- after all, MM is still dead. From a legal perspective, however, her estate has all the rights in the work that she had.
Now I'm going to talk about
Ebay. Briefly, if they keep them up (after being told of this case), they're screwed. See
Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 (
9th Cir. 1996) for details. This situation is different from
Sony v. Universal, because they are acting in a continuing capacity to provide the service (of selling the infringing product), rather than simply selling a product and abdicating control over its use to consumers.
Editor's note: As outlined by Lucy-S at SFF Net, the site referenced above has gone offline. As of March 2017, you can find the James Morrow at http://www.jamesmorrow.info but I could not find the referenced article there.