Frankly, they give a damn

Atlanta is burning again, this time with indignation. The American Civil War of 1861-5, at the end of which the city burned for the first time, was ostensibly about race, but more covertly about money as well. The new conflict, fought in courts, legal offices and the media, concerns many of the same issues. In April, public attention in the US was captured by an impending court case involving copyright law. Such cases are not uncommon, but this one had the makings of a media Molotov cocktail. Houghton Mifflin, the publishing house, was about to launch a book by Alice Randall, a country songwriter: "a parody" of the epic novel Gone With The Wind by Margaret Mitchell.

Immortalised by the 1939 film based on it, the novel is a sacred part of US cultural heritage?????? politically incorrect depiction of black people. You'd have trouble finding an American who couldn't tell you the plot in some detail Randall's novel, called The Wind Done Gone, rewrites the story through the eyes of Cynara, Scarlett O'Hara's illegitimate mulatto half-sister. Randall says in the original. "I wrote The Wind Done Gone for those who were silenced, for people like my character ... I've been quoted as saying that my father frequently instructed me to 'speak for those who cannot speak for themselves'. Somewhere along the way, I decided to write for those who could not write for themselves."

Joseph Beck, a lawyer for Houghton Mifflin, put it more strongly. "This is a racist book," he said of Gone With The Wind. "The Wind Done Gone tells us, for the first time, how African-Americans read Gone With The Wind." Unconvinced, the Mitchell estate - Mitchell's surviving nephews, the tenacious guardians of the copyright for Gone With The Wind, which they hold until 2036 - decided this was an unauthorised sequel too far, and sought to have it banned. The Wind Done Gone represents "wholesale theft of major characters" from the original, according to Tom Selz, a lawyer for the Mitchell Trusts. The solicitor representing the Mitchell estate, Martin Garbus, presented the court with a 34-page list of characters and scenes that are similar in the two books. "It took too much," he says. "The Wind Done Gone is a sequel, not a parody ... This is not just plagiarism; it is a wholesale lifting of material ... The owner of copyright has the right to control sequel rights." Judge Charles Pannell agreed and injuncted publication.

The story of Gone With The Wind as it has crystallised in American culture upholds a comfortable, clean, black-and-white image of society at the time, but it is an image that has insulted and frustrated contemporary blacks. When the Mitchell estate authorised the sequel Scarlett, they stipulated that Alexandra Ripley's novel contain no homosexuality or interracial sex. The Wind Done Gone, in its refracted image of the original plot, has both. According to reports - the court banned not only publication but also the distribution of review copies to the media - Ashley Wilkes, renamed Dreamy Gentleman, is portrayed as a homosexual; his wife, Melanie, is called Mealy Mouth and is a serial murderer.

Scarlett, referred to as "Other", eventually dies, freeing Rhett Butler to have a liaison with Cynara, whom secretly he had always fancied. Tata - formerly Tara - is managed by the slave Garlic, who corresponds to the slave Pork in the original. In The Wind Done Gone he - not Scarlett's father - is the true, if publicly unacknowledged, master of the mansion. Even Prissy is there, whose sudden admission that she "don't know nothin' 'bout birthin' no babies" has quite a different purpose: she wants Melanie/Mealy Mouth to die in labour.

Houghton Mifflin had argued in court that it was a parody of the original, and as such was protected by the first amendment of the US constitution, which ensures freedom of speech and expression. It duly appealed Pannell's ruling. The media, which identified in his decision a potentially fatal precedent that threatened their freedom of speech - spoken, written or broadcast - and thereby their livelihood, created a furore. Bootleg copies of The Wind Done Gone were available on the Internet hours later, auctioned off at horrendous prices. A crowd of muscle-laden media companies, including the New York Times, CNN and Microsoft, filed briefs in support of the book, adding weight to a statement, signed by a slew of prominent authors, including Toni Morrison, author of Beloved, and Harper Lee, author of To Kill A Mockingbird, submitted in the initial court case.

High-profile advocates of the first amendment joined the fray. The case went back to court 10 days ago. Within a morning, the injunction was lifted. Had the case not gone to court at all, The Wind Done Gone might have had a respectable but hardly noticeable print run. The initial order for the Borders book store in the World Trade Centre in New York, for example, amounted to a puny seven copies. The attention heaped on both books almost guarantees them runs in the best-seller list.

Those on both sides of the debate insist it's not about money. Perhaps, but everyone involved in the ethical issues still stands to make a mint. "Today's decision is an absolute victory for both the first amendment and the fair-use doctrine of the Copyright Act, both crucial to American culture and freedom of expression," enthused Wendy Strothman, an executive vice-president at Houghton Mifflin after the ban was lifted.

"Never in my 30 years of book publishing have I seen such an outpouring of support for a book; it's clear that many writers and others concerned with our country's free exchange of ideas understood, as did this court, the urgent issues raised by this case."

James Hickey, a Dublin solicitor who specialises in the area, says he is keen to look into the development of US copyright law with regard to the case. Although "the copyright system in the US is historically different to that of the rest of the world", it "could have significance on a world-wide basis". Particularly with regard to the Internet, he says, "the world has to learn what copyright is supposed to protect ... It was only intended to protect people from others reproducing copies of their work.

"Obviously, a parody has to be allowed. Every case is different - a judge has to decide if a new work is original, if a parody is a copy." Garbus agrees, saying: "we need to take another look at these laws, passed long ago. We need to identify what copyright is, and what should be protected." The Mitchell estate is appealing the appeal. "This is the first round," Garbus insists. "There is a high possibility that this case may wind up in the supreme court."

In the meantime, Houghton Mifflin intends to have copies of The Wind Done Gone in US book stores by the end of the month. Randall says she is "delighted that the American people will now be able to read my book", which she wrote "so all of America would have a deep-healing belly laugh". Now, who's going to write a parody of the dispute?