15.048 U.S. copyright decision

From: by way of Willard McCarty (willard@lists.village.Virginia.EDU)
Date: Sat May 26 2001 - 01:38:08 EDT

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                    Humanist Discussion Group, Vol. 15, No. 48.
           Centre for Computing in the Humanities, King's College London

             Date: Sat, 26 May 2001 06:36:26 +0100
             From: NINCH-ANNOUNCE <david@ninch.org>
             Subject: Eleventh Circuit lifts copyright injunction on "The Wind
    Done Gone"

    News on Networking Cultural Heritage Resources
    from across the Community
    May 25, 2001

          Eleventh Circuit Court Lifts Copyright Injunction on "The Wind Done Gone"

                     Court Order Conflicts with Eldred v. Reno statement
                             on Copyrights & First Amendment.

    >Date: Fri, 25 May 2001 16:35:36 -0400
    >To: cc@eon.law.harvard.edu
    >From: Wendy Seltzer <wendy@seltzer.com>
    >>on "The Wind Done Gone"
    Citing the First Amendment to the Constitution, the Eleventh Circuit Court
    of Appeals today lifted the injunction on publication of Alice Randall's
    "The Wind Done Gone":

    "It is manifest that the entry of a preliminary injunction in this
    copyright case was an abuse of discretion in that it represents an unlawful
    prior restraint in violation of the First Amendment."

    The order frees Randall to publish her novel, alternately described as a
    parody of or sequel to Margaret Mitchell's "Gone With the Wind."

    The Eleventh Circuit's order is in direct conflict with the D.C. Circuit's
    statement in Eldred v. Reno, that "copyrights are categorically immune from
    challenges under the First Amendment." Rather than follow the D.C.
    Circuit's limited First Amendment scrutiny of copyright's restrictions, the
    Eleventh Circuit declared the copyright-based injunction to be an "unlawful
    prior restraint."

    Mitchell's estate won the earlier injunction from an Atlanta district court
    on the claim that Randall's novel was an unauthorized sequel copied from
    "Gone With the Wind." Randall argued that her work, told from the
    perspective of Scarlett O'Hara's slave-born half-sister, was permissible
    artistic comedy or parody, making fair use of Mitchell's work. Under the
    56-year copyright term in effect when Mitchell wrote "Gone With the Wind,"
    the entire world of Tara should have become public domain in 1993.

    A copy of the order is online at

    The Eleventh Circuit says an expanded opinion will follow.
    Links to earlier commentary on the case may be found at the Openlaw/Eldred
    v. Reno website:

    Wendy Seltzer -- wendy@seltzer.com
    Fellow, Berkman Center for Internet & Society at Harvard Law School

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