The Wind Done Gone: Parody or Piracy? a Comment on Suntrust Bank v. Houghton Mifflin Company

• Publication year: 2010

The Wind Done Gone: Parody or Piracy?
A Comment on Suntrust Bank v. Houghton Mifflin Company

Barbara S. Murphy

Introduction

The recent publication of Alice Randall's The Wind Done Gone (TWDG)[1] created more of a stir in legal circles than in literary ones.[2] Alice Randall used elements from Gone with the Wind (GWTW)[3] to "retell" Margaret Mitchell's famous tale, this time from the perspective of Cynara, a newly imagined mulatto half-sister of Scarlett (named "Other" in TWDG).[4] The Mitchell Trusts, who own the GWTW copyright, sought to enjoin further publication and distribution of TWDG.[5] The conflict that followed centered on the "blurry boundary between unlawful plagiarism and legitimate critical reinterpretation."[6] For the U.S. District Court for the Northern District of Georgia and the United States Court of Appeals for the Eleventh Circuit, the case presented an opportunity to revisit an issue Learned Hand called "the most troublesome in the whole law of copyright"—fair use.[7]

The fair use doctrine has always protected commentary, criticism, and scholarly appropriation of copyrighted materials from claims of copyright infringement.[8] Since the Supreme Court decided in Campbell v. Acuff-Rose Music, Inc.,[9] that 2 Live Crew's rap version of "Oh, Pretty Woman" could claim fair use as a parody, the fair use doctrine has protected parody as well.[10] Although both the district court and the circuit court agreed that TWDG borrows extensively from GWTW, whether it did so solely in the pursuit of parody became the ultimate question in the case.[11] The district court found that TWDG was primarily a sequel; the circuit court, in reversing the lower court's decision, said the book was primarily a parody.[12] Both courts relied heavily on the Campbell decision to arrive at opposite conclusions.[13]

In Campbell, although the Court confirmed that parody could be a legitimate fair use defense to infringement, some questions remained unresolved.[14] For example, courts still differ on a legal definition of parody for the purposes of fair use defense analysis.[15] Some courts state that a true parody must target the original work from which it borrows, while others say it may use the borrowed work as a weapon to comment on or ridicule something else.[16] Additionally, courts still disagree on whether, even if a work is found to be a parody, the law limits how much it may take from the original.[17]

This Comment reviews how the courts dealt with these questions in the case of Suntrust Bank v. Houghton Mifflin Co., and whether that decision advances the goal of copyright law in general and the fair use doctrine in particular. This Comment also proposes that further broadening the definition of parody beyond the definition in Campbell, although in line with the goal of copyright law to have the freest possible access to and dissemination of knowledge, could weaken the incentive offered to those who create and develop the knowledge. By lowering the threshold to allow more allegedly infringing works the opportunity to claim fair use as a defense, the court not only departs from Campbell's guidelines, but fails to recognize that the granted term of copyright well exceeds the purpose it is intended to serve.

Part I provides a brief overview of the history and scope of copyright protection. Part II explains the fair use doctrine and how it applies to parody, including a brief description of the leading parody case, Campbell v. Acuff-Rose Music, Inc.[18] Part III relates the background of the Suntrust Bank v. Houghton Mifflin Co. case. The first section of Part IV discusses the district court opinion, followed by the circuit court opinion on the prima facie case of infringement, where the courts agreed. The second section of Part IV relates the courts' differing opinions on the fair use defense analysis. This Comment concludes that although the circuit court's decision reaffirms Campbell's central holding that copyright law sufficiently protects parody, the circuit court's fair use analysis departs from Campbell in significant ways that add confusion, not clarity, to this area of the law.

I. Brief Overview of Copyright Protection

A. History of Copyright

English common law held that one had a property right to the product of his intellectual labor.[19] The Statute of Anne[20] first codified the recognized rights of authors and granted "authors and their assigns" the sole right of publication for a renewable term of years.[21] The basis for the law was to compensate an author by granting him a limited monopoly, but the government retained the right to lower unfairly high book prices upon the public's petition.[22] Thus, from the beginning of copyright law, the government sought to promote public access to new ideas while simultaneously encouraging authors to create them. Much of continental Europe took a different route, treating an author's right in his work as a fundamental "moral right."[23] French law, in particular, recognized and sought to protect the "intimate bond" between an author's personality and his work.[24] This view of copyright established the author's control over his work as paramount—beyond a limited property right and superceding society's right of access to it.[25]

U.S. copyright law derives from the English, utilitarian theme by proposing to advance creative expression for the benefit of the public at large by granting a copyright to the individual author as both an economic incentive and a reward.[26] Article I, Sec. 8, cl. 8 of the U.S. Constitution granted the power to Congress "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their Respective Writings and Discoveries."[27] The ultimate aim was to promote broad public availability of literature, music, and the arts for the public good.[28] The copyright granted a limited monopoly as an incentive to encourage authors to create.[29] The competing claims of the public interest were to be balanced by the time limit imposed on the right.[30] The public would have complete access to the work after the term of protection expired, when it entered the public domain.[31]

Authorized by the Constitution, with an eye toward resolving conflicting state copyright laws, Congress passed the first national copyright law, the Copyright Act of 1790,[32] with very little debate.[33] The law granted an author the exclusive right to "print, reprint, publish, or vend" the work, limited to books, for fourteen years with an additional fourteen year renewal.[34] The Copyright Act of 1909[35] significantly expanded the scope of protection from books to "all writings," and extended the length of protection to twenty-eight years, with an additional twenty-eight years upon renewal.[36] The Copyright Act of 1976[37] (the Copyright Act) also expanded the scope of copyright law to include unpublished writing, codified the judicially created "fair use" doctrine, and preempted much state and common copyright law.[38] The Copyright Act again expanded the term of copyright to the life of the author plus fifty years, among other provisions.[39] In 1998, Congress extended the term to the life of the author plus seventy years, under the terms of the Sonny Bono Copyright Term Extension Act (CTEA).[40]

Critics have called these continual congressional extensions of the protected term of years unwise and even unconstitutional.[41] But courts have consistently held that the Constitution grants to Congress, not the courts, the right to decide the term of copyright.[42] In addition, the Copyright Act's idea/expression dichotomy and the latitude the Act affords through fair use adequately protects First Amendment free speech guarantees.[43]

B. Scope of Copyright Protection

The Copyright Act codifies the requirements of copyrightable subject matter: "Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression . . . ."[44] The Copyright Act limits copyright protection to an author's expression, not his idea(s): "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."[45] As the Supreme Court emphasized in Harper & Row v. Nation Enterprises:[46] "No author may copyright his ideas or the facts he narrates."[47] By protecting only a particular expression of an idea, the idea/expression dichotomy helps to ensure free access to ideas, and thus avoids confrontation with the First Amendment guarantee of free speech.[48]

C. Infringement of Copyright

To show a prima facie case of infringement in a copyright action, the copyright holder must show (1) that he owns the copyright, and (2) that the defendant copied the original so that (3) it constituted an unlawful appropriation.[49] If no direct proof of copying exists, the plaintiff may prove copying by demonstrating that (1) the defendant had access to the original, and (2) substantial similarity exists between the alleged infringement and the original.[50] Substantial similarity requires that the copying be both "quantitatively and qualitatively sufficient to support the legal conclusion that infringement (actionable copying) has occurred. The qualitative component concerns the copying of expression, rather than ideas . . . . The quantitative component generally concerns the amount of the copyrighted work that is copied . . . ."[51] Courts have applied various tests, such as the "ordinary observer"[52] test, the "total concept and feel"[53] test, the "fragmented literal similarity"[54] test, or the "comprehensive nonliteral similarity"[55] test to determine whether works are substantially similar.[56]

II. The Fair Use Doctrine

A. The Source of the Fair Use Doctrine

Tension exists between...