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How Copyright Law Protects Art From Criticism

A case for allowing the copyright on Gone With the Wind to expire.
A parody sequel of Gone With the Wind created contrary legal opinions. (Photo: marysolra/Flickr)

A parody sequel of Gone With the Wind created contrary legal opinions. (Photo: marysolra/Flickr)

Aesthetics aren't supposed to affect the law. You can't dump a bucket of fishheads on Kevin Costner, even if he is a festering boil on the body of American cinema. You can't hack Amazon and delete every copy of every Pearl Jam album, no matter how ludicrous the bellowing of Eddie Vedder may be. Ruth's Journey, Donald McCaig's authorized sequel to Gone With the Wind, which will be published later this month, may be wonderful or it may be horrible or it may just be blasé. But, no matter its quality, you're not legally allowed to sell pirated copies of it.

You can't dump a bucket of fishheads on Kevin Costner, even if he is a festering boil on the body of American cinema.

The rationale here is easy enough to follow. The law is supposed to apply to everyone equally. Aesthetic judgments are contradictory and individual. Some benighted people may even like Kevin Costner or Eddie Vedder. Ruth's Journey, told from the viewpoint of Gone With the Wind's Mammy, looks fairly tedious to me from reviews, but other folks may love it. That's why, in a famous copyright decision dealing with banal advertising art, Oliver Wendell Holmes declared:

It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.

Holmes' admonition is often cited in intellectual property cases, and it's widely seen as the correct legal position on copyright issues. Courts, everyone agrees, shouldn't be ruling on whether Kevin Costner or Eddie Vedder or Ruth's Journey are good art or bad art. Courts should enforce copyright regardless of how good or bad the copyrighted work may be.

Again, this is the theory. The practice, though, is messier, according to an article last month by Southwestern University law professor John Tehranian. Tehranian points particularly to the example of an earlier Gone With the Wind sequel: Alice Randall's unauthorized The Wind Done Gone, published in 2001.

Randall's novel upends many of the characters and situations in Gone With the Wind. The book is told from the viewpoint of Scarlett's half-sister, Cynara, who is the illegitimate daughter of Scarlett's father, Gerald, and Scarlett's black nurse, Mammy. Told from the view of a black character, everything in Gone With the Wind is reversed. Gerald isn't an industrious self-made man, but an incompetent whose fortune is made for him by his slave Pork (named Garlic in Randall's version). The indecisive suitor Ashley Wilkes isn't indecisive; he's gay. Ashley's wife, the virtuous Melanie, has his black lover whipped to death. And so forth through the novel, with just about every characterization overturned and every supposed fact undone and turned back on itself, so even GWtW's most basic truths—like, for example, Scarlett's whiteness—are called into question.

As Tehranian explains, a district court at first forbade publication of The Wind Done Gone, arguing that Randall's work was a sequel rather than a parody, and therefore didn't warrant fair-use protection. Tehranian argues that the court's decision was based specifically on aesthetic criteria:

The tenor of the judge’s opinion is particularly revealing. It begins by immediately emphasizing Gone With the Wind’s place in the cultural canon and its commercial significance–noting both its "widespread acclaim" and its impressive sales in the "tens of millions." These facts are, of course, largely irrelevant to any aesthetically neutral analysis of infringement and fair use. But, they set the tone for the court’s opinion, which reflects a strong deference to the work’s favored aesthetic status—its presumed import and cultural and economic value.

In its decision, the court pointed in particular to the fact that Scarlett and Mammy died in The Wind Done Gone as evidence that the sequel harmed the original. In financial terms, this objection doesn't make much sense—as Tehranian points out, Kirk and Spock died in the Star Trek series at various points, and no one had any trouble bringing them back to life when needed. But the court's objection does make sense if Gone With the Wind is viewed as inviolable, if any tarnishing of it is seen as illegitimate. "Thus, it is not whether the work is parody or sequel that truly appears to drive the court’s decision;" Tehranian concludes, "it is destruction of the work’s romanticism—a romanticism that is grounded in a distinctly whitewashed vision of the antebellum."

"Thus, it is not whether the work is parody or sequel that truly appears to drive the court’s decision; it is destruction of the work’s romanticism."

The Eleventh Circuit Court of Appeals eventually reversed the lower court. But aesthetics were involved in that decision as well. The appeals court based its decision on the estimation that Gone With the Wind was not an inviolable classic, but was instead a flawed and indeed racist work. The court particularly singled out the fact that the Mitchell estate had prevented authorized sequels from discussing homosexuality or miscegenation. The Mitchell estate was trying to prevent re-evaluation or criticism of Gone With the Wind, and, implicitly, of its vision of the South. The appeals court ruled that such re-evaluation and criticism was in fact aesthetically valuable. "To the Eleventh Circuit," Tehranian concludes, "the time had come to de-canonize Gone With the Wind and its inviolability."

So both the decision against Randall's book and the decision for it were based in aesthetic judgments. Does that invalidate them? Tehranian, interestingly, argues that it does not. As he points out, the Constitution specifically provides for copyright protection in order to advance "the Progress of Science and useful Arts"—a goal which "virtually demands such ‘aesthetic determinations.’" Courts need to decide what does and does not qualify as "useful Arts" before they can apply copyright. To do that, they need to make aesthetic judgements. Is The Wind Done Gone a worthless and duplicative cash-grab of the sort that lowers the value of an original work and thereby reduces incentives for the creation of great works? Or is The Wind Done Gone a trenchant commentary that will encourage creative engagement with the nation's historical and literary legacy?

Aesthetic decisions, then, are always going to be a part of copyright law. The problem is not that aesthetics are involved, but that they're too often simplistic. In the case of The Wind Done Gone, for example, the lower court decided that Gone With the Wind was a classic, and should be protected. The appeals court decided it maybe wasn't so great after all, and could be parodied. But it seems like it would be closer to the truth to say that Gone With the Wind is an important and canonical work, and that parodies of it are valuable for that very reason. It's because Gone With the Wind is admired and influential that questioning it is worthwhile. The aesthetic value of a work shouldn't always protect it as inviolable into perpetuity, quite the contrary.

Oliver Wendell Holmes is right—judges aren't necessarily going to be experts on, or very thoughtful about, aesthetic issues. Courts have to consider aesthetics in copyright law, but the result is often going to be messy and painful and often even unjust. There isn't any way out of that.

However, there is a change that could ameliorate the situation to some extent. Gone With the Wind was published in 1936. That means that it's 78 years old. The first American copyright act of 1790 allowed for a copyright term of 14 years, which could be renewed for another 14-year term if the author was alive. If that original law was still in effect Gone With the Wind would have gone out of copyright almost 50 years ago. For that matter, Star Wars, Star Trek, Spider-Man, Faulkner's oeuvre, and Stephen King's early books would all be out of copyright. If you wanted to do a parody or sequel to any of those, no court would have to rule on the aesthetic value of anything. It wouldn't matter if a court believed Stephen King's work was canonical, or if they thought Faulkner's racial views deserved to be undermined and questioned. When a work is out of copyright, it's aesthetic value, or lack thereof, is irrelevant. Whether it's great or whether it's awful, the work is fair game for parodists, remixers, piraters of cheap editions, and anyone else.

Thirty years may seem like too short a time for copyright. But our current setup—70 years from the death of the author for works published after 1978 and 95 years from the date of publication for those published before that year—seems like it tips over too far in the other direction. As long as a work is under copyright, what you can say about it, and what other work it can inspire, is going to be left up to the aesthetic preferences of judges, some of whom probably like Kevin Costner or even Eddie Vedder. Authors should be granted protection for a while to encourage creation, but it shouldn't be for so long that important, canonical works remain inviolable generations after their creation. It's long past time that people had the right to kick Gone With the Wind, The Great Gatsby, Catcher in the Rye, and Superman—not because they aren't aesthetically valuable, but because they are.*

*UPDATE — September 30, 2014: We originally wrote that copyright covered works for 95 years from the death of the author, and 120 years after their creation. These numbers have been replaced with the accurate terms.