The legitimate applications of the First Amendment are difficult enough to protect and defend without the obfuscation of revisionists who would exploit it for their own purposes.

Gone With the Injunction

We have not read Alice Randall’s novel, The Wind Done Gone. None of us may ever be able to — legally.

Ms. Randall, heretofore a screen writer and songwriter, set out to use the setting and characters from Margaret Mitchell’s Gone With the Wind, but to write from the perspective of a slave whom she portrays as Scarlett O’Hara’s half sister.

The trustees of Margaret Mitchell’s estate — who have over the years fiercely protected the rights to and perceived sanctity of the original work — sued. Last week, they won, with a federal district judge in Atlanta granting an injunction based on plagiarism and copyright infringement — in essence using too much of Margaret Mitchell’s legally protected intellectual property.

Supporters of Ms. Randall, including numerous literary luminaries, have argued for her free speech rights, for the right to parody a well-known work, even for the right to advance the cause of social justice through her reinterpretation of a classic novel that defined a time and place for more people than objective histories have.

We point this out to demonstrate that tension between the First Amendment and intellectual property rights occupies an uncomfortable Old World space even before one approaches the New World contretemps over Napster. At the risk of taking a persistent stand, the Center for Individual Freedom believes, as most judges are finding, on the facts and on the law, that only the most tortured reading of the First Amendment produces any conflict with the solid body of law that protects intellectual property. Ironically, those tortured readings seem to occur only after someone has been caught with a hand in someone else’s cookie jar.

The legitimate applications of the First Amendment are difficult enough to protect and defend without the obfuscation of revisionists who would exploit it for their own purposes.

Update:

Appeals Court Lifts Injunction on ‘Wind Done Gone’

On May 25, a three-judge panel of the 11^th U.S. Circuit Court of Appeals lifted an injunction against publication of "The Wind Done Gone." According to the ruling, the injunction was an "extraordinary and drastic remedy" that "amounts to an unlawful prior restraint in violation of the First Amendment."

On May 31, lawyers for the estate of Margaret Mitchell filed an appeal in federal court to overturn the ruling. According to Ms. Randall’s publishers, the book will be released in the next several weeks.

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