Rewrite of Gone With The Wind: A Fair Use - Essay Example

?Ali Alkhalfan Ms. Roberts English 105 18 November Rewrite of Gone With The Wind: A Fair Use Writing back of literary works is an invaluable practice to the society because it examines another author’s ideas, message and presentation in a different perspective. In addition, writing back also exposes some issues that may have been left untouched by the original author, yet they are of great significance to the society. According to Lessig, the society encourages and allowsthe rewrites to flourish because of the immense importance that they hold (124). Thus, copyright law though protects originality and creativity of the authors, gives room for rewrites by providing exemptions under which they are not entitled to infringement.However, this has also created a room for copyright conflicts and other related issues. Numerous copyright issues have dominated the debate scene prompting the question as to what should be considered fair use and what should not. One notable copyright battle was between Gone With The Wind (GWTW) and The Wind DoneGone (TWDG). In this case, the author, Randall rewrote the GWTW by retelling the story through a slave’s perspective. This encompasses writing back to society and power, which has a rich contribution to the society. Nevertheless, the conflict here was whether TWDG violated copyright laws by copying GWTW. Through evaluation of free speech, fair use, parody and satire, it is clear that TWDG did not cause infringement of copyright laws. The infringement law allows rewrites based satire and parody. As a result, there was no infringement in the case of GWTW and TWDG since the rewrite was based on satire. Nevertheless, when solving the conflict, other concepts such as free speech and its application also came up. Thus, it is essential to understand how fair use, parody and satire, and free speech apply in rewrite cases. In the case, SunTrust Bank v Houghton Mufflin, SunTrust Bank aimed at stopping Houghton from publishing TWDG on the grounds that it infringed the novel GWTW. However, the 11th Circuit found that TWDG was not guilty of infringement, and thus, allowed for the publication of the rewrite. The Supreme Court made this decision citing the sufficient transformative nature of TWDG, which warrants as fair use. This marked the beginning of a long-term battle on TWDG’s infringement of copyright laws with regard to the rewrite of GWTW. Nevertheless, what arose from this case is that fair use sets the legal framework that accommodates both commercial and creative decisions. In analyzing a literary work or any other thing for fair use, there are four factors that play a key role in the determination of fair use. According to Netanel in Making Sense of Fair Use, these are provisions of Section 107 of the United States Copyright Act (Making Sense of fair Use 715). The first factor deals with character and purpose of the uses, for example, it considers whether the use is for nonprofit educational or for commercial nature purposes. The second factor provides for the nature of the work copyrighted. The third factor looks at the work copyrighted as a whole and determines the substantiality and amount of the portion used with respect to the entire work. Finally, the fourth factor provided for by the US Copyright Act under Section 107 looks at the impact of the rewrite on the potential market, and how the copyrighted work is valued. Beebe notes that the four factors are a test that must be applied in every case to determine fair use, and there is no bright line rule that can determine the issue of fair use (558). The major goal of fair use is to provide a flexible approach of determining and making a decision as to whether fair use applies in a particular case. The major concern is whether the use of the original work that is copyright protected is fair or not. In addition, the fair use doctrine does not base its arguments on equity, but is rather a creature of the common law courts. Furthermore, in the application of fair use, the secondary user’s motives are generally irrelevant as the main concern is the characterization of the overall use as unfair or fair. In principle, the four factors mentioned above must be given weight in the analysis of fair use, but in practice only two have emerged as the most crucial in determining fair use.These two, according to Beebe, are the first and the fourth conditions, which provide different perspectives to fair use (558). For instance, the first condition provides for a transformative use approach to fair use while the fourth one deals with the market failure approach to the doctrine of fair use. Using this to evaluate fair use in the rewrite of GWTW, it is clear that there is enough transformation to fulfill the first condition of fair use.For example, Randall borrows settings, characters, and plot twists from GWTW, but he does not merely copy them, he transforms them into another creative piece. The story is uniquely told from a slave’s perspective, and scenes are inverted to transform the piece from the original copyright work. Similarly, the rewrite also passes the test for market; thus, the rewrite of GWTW qualifies as fair use. Hence, according to the fair use evaluation, TWDG did not infringe copyright law. Another issue that provides for exemption in infringement of a copyrighted work is free speech. Free speech is one of the values of the First Amendment, and such, it is a crucial subject that must be taken into account in making a decision about infringement. This is because everyone in the society has the right to express themselves, as long as this expression does not present harm to other individuals. Several factors make up free speech,as Bollinger notes, “There are three justifications put forward for free speech: the search for truth, autonomy and democracy” (465). The basis for the search for the truth argument is that if speech is truly free then the truth can be discovered in an unrestrained discourse. Similarly, the autonomy argument ties free speech to personal liberty. This means that copyright law has to take into account the provision of free speech, and this could be done by creating an infringement exemption on the basis of free speech. Free speech is a powerful consideration in copyrighted works because it allows for social criticism, which helps in making a broader point about the society. This makes the determination of fair use in a rewrite even more complex than it already is with parody and satire. Thampapillai suggests that application of free speech in rewrite issues can be evaluated in two ways (428). One, free speech can be evaluated on the basis of utilitarian theory whereby the decision/outcome should present maximum benefit. Second, free speech can be approached on the basis of essentiality. This is because societies that values and practice democracy highly values free speech as an essential element in the society. In such societies, free speech may override copyright law whenever necessary. According to Samuelson, Free speech promotes self-expression and liberty especially in a democratic society (2549). Thus, a satirical or parody novel is highly allowed in such a society as it makes a political or social point beneficial to the society. Therefore, rewriting a novel in the form of a satire is an act of speech, and allowing such rewrites to flourish mirrors how valuable free speech is to the society. Randall’s rewrite of GWTW draws favor from free speech because it exposes the slavery that the original novel left out. Furthermore, it explores the issue of the race, which relates with political issues, as well as the role of democracy in the society. The United States Copyright Act allows for exemption on the infringement of the law when it comes to rewrites and this is when the rewrite is based on satire or parody. Parody is a form of literary and social criticism with a socially significant value similar to free speech of the First Amendment. Though a rewrite of literary work in the form of parody exempts it from infringement in all cases, one written in the form of satire may not escape infringement in some circumstances. More compelling is the distinction between parody and satire as in practice they appear the same; thus, their applicability is also the same. In an attempt to distinguish between parody and satire, Netanel states, “Parody's humor, or in any event its comment, necessarily springs fromrecognizable allusion to its object through distorted imitation. Its art lies in thetension between a known original and its parodie twin. When parody takesaim at a particular original work, the parody must be able to 'conjure up' atleast enough of that original to make the object of its critical wit recognizable.”(Copyright’s Paradox 56). A pure satire does not qualify as fair use, but a satire combined with parody is fair use and so is a pure parody. A good example of a combination of parody and satire can be drawn from Randall’s TWDG, which satirizes the South and parodies the novel GWTW by Mitchell. Therefore, the rewrite contains elements of political and socialcriticim directed to the society, which means that it is both a parody and satire. This is one of the reasons that the Circuit Court allowed for the publication of TWDG by arguing that it did not violate the copyright law. Netanel illustrates parody and satire as one of the concepts of understanding fair use since the copyright law provides an exception for these two aspects of rewrite (715). TWDG satires and parodies GWTWbecause it exposes the slavery and other atrocities, which had been left out by Mitchell who romanticized of the antebellum era. In addition, the novel tells the story from the perspective of a slave to get a clear picture of the events and racial issues in the South. Furthermore, the Randall’s TWDG is critical transformation, making it a different tale. For example, the novel stays away from original prose used by Mitchell and acquires a different language through Cynara, which is the vehicle of parody in this rewrite, and as we flip through the pages of her diary, we get a clear insight into the race and slavery portrayed in this novel. Finally, the rewrite portrays whites in a different way from Mitchell, that is, powerful, but stupid. The major goal of the rewrite is to strip the romanticism presented by Mitchell, and generally demystify GWTW. Hence, TWDG achieves both parody and satire, which exempts it from infringement of the copyright law and qualifies it as fair use. Undoubtedly, rewrites play an imperative role in society, and thus they should be allowed to flourish. One of the benefits of rewrites is that they provide various cultural products to choose from, thus, making culture richer. However, not all rewrites are beneficial as some may be mere copying or a case of plagiarism, and such add no value to the society. Therefore, it is important to determine the kind of rewrites acceptable in the society, especially those that exposes the social and political issues in a satirical way. According to the copyright law that protects copyrighted works, parody and satire are some of the exemptions to infringement of copyright law. In addition, free speech also plays a critical role in determining fair use of rewrites as it sometimes because it allows for self-expression, mainly in a democratic society. Evaluating the infringement issue surrounding TWDG shows that it passes the test for fair use; hence, the rewrite does not infringe GWTW. Another aspect that marked settling of the case was that the publisher donated money to a college that Mitchel had attended. Copyright issues still present challenges in the society, particularly in the American society where the law allows for certain exemptions concerning infringement of it. However, the most important thing to remember when determining whether there is fair use in a particular rewrite is the value it adds to the society, as well as ensure that the provisions of free speech are upheld at all levels. This means that in a democratic society, such as America, the right to expression and liberty should count towards determination of infringement cases. Nevertheless, it is also important to ensure that the material released for public audience has some beneficial nature, and allows the societal culture to flourish. In every society, there will always be those who come up with original idea, and those who are only good at making a satire out of and criticizing these ideas. Works Cited Beebe, Barton. "An Empirical Study of US Copyright Fair Use Opinions, 1978-2005." University of Philadelphia Law Review (2008): 582-86.Print. Bollinger, Lee. "Free Speech and Intellectual Values' () 9243S." Yale Law Journal (1983): 438. Print. Lessig, Lawrence. Remix: Making Art and Commerce Thrive in the Hybrid Economy. New York:Penguin, 2008. Print. Netanel, Neil. "Making Sense of Fair Use." Levis and Clark Law Reviews (2011): 715. Print. Netanel,N. Weinstoek.Copyright's Paradox. Oxford: Oxford UP, 2008. Print. Samuelson, Pamela. "Unbundling Fair Uses." Fordham Law Review (2009): 2544-56. Print. Thampapillai, Dilan. "The Novel as a Social Satire: 60 Years Later, the Wind Done Gone and the Limitaions of Fair Use." Deakin Law Review (2012): 427-52.Print. Read More