Copyright owners say, 'Frankly, my dear,....' More and more, parody risks charge of plagiarism
When a work is as well known as "Gone With the Wind," people naturally assume it's fair game for parody.Skip to next paragraph
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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.