Who's right?

When a work is as well known as "Gone With the Wind," people naturally assume it's fair game for parody.

Carol Burnett's TV version of "Starlet" O'Hara wearing a curtain rod and drapes is one of the most humorous examples. Now, Alice Randall's novel "The Wind Done Gone," told from the viewpoint of a slave, is trying to make it into history as a more provocative one.

Tomorrow is a big day in her battle, as Ms. Randall's new book makes its second court appearance in as many months. Her publisher will try to persuade an appeals court that a previous judge erred in April when he stopped the novel's publication because it is too like the original.

The case, though not a particularly unusual one in terms of copyright law, has stirred discussion about how Americans regard their cultural icons.

Just as journalists have a more liberal standard when writing about public figures, should artists be able to more freely invoke classic cultural symbols?

"People are caught up in this, as if there's some special category for those [classical] works," says Richard Dannay, a copyright and publishing lawyer at Cowan, Liebowitz & Latman in New York.

Cases like this send tremors through the journalism and artistic communities, which are primarily concerned about free speech. They worry that creativity could be stifled if the right to bounce off previous works is limited too much. After all, the argument goes, culture develops by building on itself. And critics say creativity was dealt a blow when Congress passed an amendment in 1998 allowing copyright holders, including corporations, to control their works far longer.

Copyright part of Constitution

But copyright and free speech are both part of the Constitution, and the tension between them creates situations like the current one, in which a judge is forced to act as a literary critic.

Ken Paulson, who heads The Freedom Forum's First Amendment Center, says he thinks the judge got it wrong when he called "The Wind Done Gone" a sequel (which requires the copyright holder's permission) and not a parody.

Mr. Paulson, a lawyer and former newspaper editor, is among those who think the barring of the publication amounts to a violation of free speech. He points to other spoofs, like one he found in Mad Magazine called "Groan With the Wind," that also borrowed heavily from Margaret Mitchell's classic.

Parody has long been an acceptable form of "fair use" of a copyrighted work. The idea is that you can't criticize something unless you can invoke it. But parody is increasingly absent from American culture, say some observers, and that may make it harder to recognize.

Author Laura Zigman's short story "Out of New York" was mimicking Isak Dinesen's "Out of Africa" when she opened with: "I had an apartment, in New York, on the edge of the East River, that had not its like in all the world."

She wrote the story in 1987 for a quirky literary journal (which renamed it) and was surprised when an Australian magazine that reprinted it accused her of plagiarism. Though nothing came of the charge, it shook her up.

"The art of parody is sort of a lost art," she says. "The only place you see it anymore is on television, and it's bad. People don't really know what it is."

The Supreme Court defined parody in 1994 when determining if racy rap group 2 Live Crew had used it in their song "Pretty Woman," a rap take on Roy Orbison's "Oh, Pretty Woman."

Tracing the word's root to the Greek parodeia, meaning "a song sung alongside another," the court said that by nature it is a work that draws on the original. The court also distinguished between parody and satire: "Parody needs to mimic an original to make its point," wrote Justice David Souter in the decision, "whereas satire can stand on its own two feet and so requires justification for the very act of borrowing." They found the new song transformed the original, but they didn't decide if it borrowed from it too much -one of the issues in "The Wind Done Gone" case, where the judge said the borrowing went "well beyond" what's required for parody.

Though 2 Live Crew knew they were borrowing from a copyrighted song, other artists say they aren't always thinking about the law when they draw on well-known cultural works that seem a part of the public domain.

When Zigman wrote her recent book, "Dating Big Bird," for example, she didn't think twice about using the "Sesame Street" muppet who's been a fixture on PBS for decades. And yet, it did prompt her publisher to look into usage rights. "It's so hard to think I'm infringing on someone's copyright because it feels like it's so a part of the world; it's so familiar. You don't even think about it, and in a way you shouldn't have to think about it," she says.

Some lawyers, like Mr. Dannay, say the idea that iconic works should have different status sets a dangerous precedent - affording their copyright owners fewer less rights, and leaving judges to decide what works qualify as icons.

He also says that the law is not as restrictive as it's being portrayed in "The Wind Done Gone" case. Pop culture is full of allusions to works that have come before, but that don't borrow directly from the original. His biggest concern is retellings of stories, which if allowed, could cause an open season on copyrighted works: "Creativity is not served by law encouraging this sort of thing."

The publisher of Randall's book agrees, saying icons are not fair game and that "The Wind Done Gone" is not an unauthorized retelling. "If you have characters whose race has changed, it can't be a retelling," says Wendy Strothman, head of Houghton Mifflin's trade and reference division. "There's no sense that anybody would think that Scarlett had black blood in 'Gone With the Wind.' In Alice's book, that person ... is part black."

Should cultural icons be exempted from copyright?

One exception to the rule, argue some legal experts, are those icons that are key to the telling of history. They object to the heirs of Martin Luther King Jr. suing USA Today for printing the reverend's famous "I Have a Dream Speech," wondering if that means such a speech would be left out of classrooms and textbooks. Or what about famous photos from Vietnam or the footage of the Rodney King beating?

"That seems to me stuff that should be in the public domain. As a matter of law, it's not. But I think if you're telling history, you should be able to make allusions to things," says Martin Garbus, a First Amendment lawyer who is representing author Margaret Mitchell's heirs against "The Wind Done Gone." "Alice Randall has every right to make allusions to 'Gone With the Wind'," he adds, "the question is how much."

In an interview in advanced copies of her book, Randall says she first read "Gone With the Wind" when she was 12 and fell in love with it, but also came to feel that this part of American mythology offers an incorrect and a racist point of view.

"Where are the mulattos on Tara?" she asks. "Where is Scarlett's half-sister?.... I knew I had to tell her story, the story that hadn't been told."

She created a new character - Cynara, the product of a union between a slave named Mammy and a plantation owner named Planter -and drew on old ones: Scarlett becomes Other (whose father is also Planter), and Rhett Butler is simply R. Ms. Strothman says it is a parody in the sense of ridicule, one of the definitions for the word. "Alice's book absolutely ridicules the naivete and the rampant racism of 'Gone With the Wind'," she says.

Mr. Garbus suggests that the book was not referred to as a parody until after the lawsuit, but Strothman says the contract with Randall says the work was always to be a parody. They avoided the word in publicity materials, she says, because "we thought that 'parody' would give the misimpression that it was slapstick."

A court will consider the issues further on Friday. Until then, those involved can take comfort in the wisdom of the big-screen Scarlett: "Tomorrow is another day."

Stretching copyright limits public access

When the Founding Fathers envisioned copyright protection - something the US imported from England - they thought it should last for a limited time. In the Constitution, they gave Congress the power to promote "the progress of science and the useful arts" by securing "for limited times to authors and inventors the exclusive right to their respective writings."

The number of years a work is protected has grown in modern times, offering copyright owners more protection in an age when the Internet is absorbing everything. But the extended protection also limits public access to such works.

Since 1978, the copyright term was the life of the author plus 50 years. In 1998, the protection was expanded by the Sony Bono Copyright Term Extension Act. Now, for any work created after Jan. 1, 1978, the copyright lasts for the author's lifetime plus 70 years, although different rules apply to pre-1978 works.

That's good for authors and corporations like Disney and Time-Warner, who lobbied for the change. Now a company can protect a work made by an employee or contractor for 95 years from publication or 120 years from creation, whichever is shorter. The law brings the US in line with laws in other countries.

(c) Copyright 2001. The Christian Science Monitor