NTER EMORY ALUMNUS JOE BECK, a top Atlanta intellectual property lawyer with a head for First Amendment cases and a soft spot in his heart for progressive causes, particularly when it comes to racial issues in the South. Growing up in Alabama, Beck heard how his father, attorney Foster Campbell Beck, vigorously defended a black man accused of raping a white woman in the 1930s. The man was eventually executed, and the story made an indelible impression on the younger Beck. Recently he succeeded in helping the Martin Luther King Jr. estate protect the copyright on the “I Have A Dream” speech and defended the right of the rap group OutKast to use civil rights activist Rosa Parks’ name in a song.

For a lawyer who has argued for King and against Parks, taking Randall’s case—an intellectual property dispute on its face, but with complex racial tensions simmering below the surface—seemed like a natural role.

The plot took a turn, though, soon after Beck signed on, when U.S. District Court Judge Charles A. Pannell Jr. found that Randall’s book followed Gone With the Wind too closely, exhibiting the “substantial similarity” that signals illegal copyright violation. Pannell issued a temporary injunction stopping the publication of The Wind Done Gone.

“That is unheard of in this country,” Beck says. “If the publisher is wrong, they may have to pay damages, but you just don’t block publication.

”A lot of us Southerners hate to see strident criticism of our icons, but we also need to open our eyes and see what this is really all about, which is the First Amendment and artistic freedom,“ Beck added. ”In my view, no one would have raised objections if this had been a scholarly article attacking Gone With the Wind, published in an academic journal. But a novel has a certain power in replying to another novel.

“Alice Randall ought to be able to meet Margaret Mitchell on her own turf.”

Due to widespread public interest in the cultural implications of the case, the press pricked up its ears. Beck rolled up his sleeves and filed an appeal. He based his defense on three principles: First, he says, The Wind Done Gone did not infringe on the copyright of Gone With the Wind because it was not a sequel and no reader would ever mistake it for an authorized sequel. Second, Beck says, Randall’s book is a literary parody, an artistic form that is protected under law. And third, under the First Amendment, Randall has a right to have her book published, copyright or no.

Beck assembled an impressive cast of supporters on Randall’s side. Statements were filed by witnesses Harper Lee, Toni Morrison, Pat Conroy, Shelby Foote, Henry Lewis Gates, and Arthur Schlessinger. Barbara McCaskill ’88PhD, a professor of African-American and multicultural literature at the University of Georgia, submitted a declaration on behalf of The Wind Done Gone, pointing out that Randall joins a rich tradition of disenfranchised minority writers who have used parody as a creative device to mock and ridicule their oppressors.

Beck also called on Charles Howard Candler Professor of English John Sitter, who teaches a course on satire and parody, to offer expert witness testimony that The Wind Done Gone is in fact a literary parody and not a sequel or empty spin-off.

“My role was to make the distinction over and over between copying and alluding to Gone With the Wind in order to parody it,” Sitter says. “I had to show there was a purpose involved, that the result was something transformative, which is an element of parody. The basic concept is that a parody is a work that comments on another work.”

The challenge, Sitter says, was to overcome the common assumption that parodies are humorous imitations rendered in the style of the original. Randall’s book, written in a dense literary tone, departs from Gone With the Wind dramatically. The contrast made it fairly simple to show the book is not a sequel, Sitter said; a sequel “preserves a kind of contract with the author of the first work.”

The necessity of revealing the unique relationship between the two Wind novels, Beck says, was the tricky part of arguing Randall’s case. “We had to show that Alice did not intend a sequel; the characters are different, the story is different,” he says. “But you have to conjure up a work in order to parody it. At what point do you get too close? We say we didn’t get that close.”

A number of expert witnesses on the Mitchell side, though, say The Wind Done Gone did get too close, attaching itself to Gone With the Wind while failing to offer originality. Alan Lelchuk, novelist and English professor at Dartmouth College, wrote in a statement that “The Wind Done Gone is, to me, a sub-literary parasitical work, dependent in its publication solely on its relation to Gone With the Wind, and having little or no literary value.”

Much of the Mitchell Trusts’ argument rests on this codependence between Mitchell’s novel and The Wind Done Gone. “It really is a sequel,” Anderson says. “It takes the story and some of the characters, particularly that of Rhett Butler, and narrates events which follow the end of Gone With the Wind. That’s what a sequel is.”

Just over a month after the temporary injunction stopping publication of The Wind Done Gone was issued, a three-judge panel in the Eleventh Circuit Court of Appeals, headed by Chief Judge Stanley Birch ’70L-’76LLM, heard arguments from both sides. They then issued a partial ruling from the bench, saying they would vacate the prior injunction immediately, finding it to be an unlawful violation of the First Amendment. The panel did not rule on the copyright matters, but within the hour Beck had an order in hand allowing publication of The Wind Done Gone to go forward.

“That moment,” Beck says, “was one of the high points of my career and my life.”

In a more complete opinion handed down in October, the panel of judges acknowledged Randall borrowed liberally from Mitchell’s work in The Wind Done Gone but strongly indicated that the fair use claim will prove a viable defense if the case advances further.

“[Randall’s work] is principally and purposefully a critical statement that seeks to rebut and destroy the perspective, judgments, and mythology of [Gone With the Wind],” Judge Birch wrote. Halting its publication, he concluded, “was at odds with the shared principles of the First Amendment and the copyright law, acting as a prior restraint on speech because the public had not had access to Randall’s ideas or viewpoint in the form of expression that she chose.”

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