What the hell is Martin Garbus up to?

May 25, 2001 12:22 PM

What the hell is Martin Garbus up to? Oozing incredulity, a federal appeals court smacked down the injunction barring publication of "The Wind Done Gone", a parody of "Gone With The Wind" from the perspective of a slave, flatly describing the lower-court ban as "an unlawful prior restraint in violation of the First Amendment" -- pretty much what most right-thinking copyright thinkers have asserted all along.

So since when is Martin Garbus, lead counsel selected by EFF to run the DeCSS case, a man who got started by defending Lenny Bruce, a lawyer Feed described as having "a long and unparalleled record as an advocate for first amendment rights", whose free speech bona fides include at one point hiding the Pentagon Papers in his apartment -- why is this man representing Margaret Mitchell's heirs on the definitively wrong side of an open-and-shut First Amendment case?
posted by bumppo (16 comments total)

Perhaps his action is due to what he learned in his trade: a buck is a buck. Go get it.
posted by Postroad at 12:38 PM on May 25, 2001

If I were willing to accept that assumption off the bat (with no supporting evidence), I wouldn't have bothered to post the question.

It's not necessarily wrong, just strikingly out of sync with the man's rhetoric. This isn't a case you take just to make a buck. It's high-profile and ideological, and his stance gives every appearance of running counter to his own beliefs, going back years.
posted by bumppo at 2:31 PM on May 25, 2001

like postroad said. can you say 'billable hours'? noble rhetoric or no, this is a lawyer we're talking about...
posted by quonsar at 2:48 PM on May 25, 2001

I haven't read either book of the books involved -- and an important thing to remember is that most pundits commenting on the issue haven't read the newer of the two because it hasn't been permitted to be published yet -- but from the sidelines, it always looked to me like a pretty open-and-shut case of derivative work, i.e., copyright infringement. The Wind Done Gone is being described as a "parody" by its author and her defenders, but that doesn't mean it actually is one. Copyright law has long protected authors from having their characters and stories appropriated by others, except in very narrowly-defined circumstances which qualify as "fair use." If it's not actually a parody, but is merely claimed to be one in order to receive "fair use" protection, then the whole case falls apart. Thus the case might ride on the precise definition of "parody" employed by the judge, which might vary as the case moves through the appeals process. in the meanwhile, of course, The Wind Done Gone gets a ton of publicity.

Dan Gillmor has a point that Gone With The Wind would be out of copyright now under the old laws, and then we wouldn't have this problem. I frankly don't don't see how they could not be Constitutional; the Constitution specifically assigns the right to set copyright terms to Congress and it gives broad leeway to Congress in that department.
posted by kindall at 3:07 PM on May 25, 2001

Kindall:
I think the key here is that this is a 'prior restraint' issue, not a copyright issue.

IANAL, but I don't think this decision means that The Wind Done Gone is completely free from charges of copyright infringement. I believe it is saying that Mitchell's estate does not have enough evidence of infringement to justify the government (via the court injunction) shutting down its publication before it ever sees the light of day.
posted by Dirjy at 3:58 PM on May 25, 2001

In other words, the government is saying "You should let them go ahead and publish it, then sue them."

That makes somewhat more sense.
posted by kindall at 4:29 PM on May 25, 2001

Not only is it a parody, it shows the exact reason parody is protected. This is bigger than an SNL sketch. This is commentary on issues brought up in a previous, well-known novel using parody. It's not like it's a cheap knock-off to get money from fans of Gone With the Wind, fans of GWTW are the sorts of people who would definitely not buy it. The only thing it gains from the connection is the notoriety this lawsuit gives it.
posted by dagnyscott at 4:58 PM on May 25, 2001

Has anyone noticed who Margaret Mitchell's estate consists of? Two lawyers in their 80s, no relation to Mitchell, who inherited the copyright from Mitchell's late brother, their partner. Given that this novel's had a 60-some year run as a cash cow, in large part for these two milkmaids, at what point can we say enough, it's in the public domain? This isn't a piece of real estate, it's a work of bad art that has virtually defined the Old South for generations of Americans; shouldn't other writers have a crack at sending it up? Jonathan Yardley (WashPost) had some interesting things to say on this subject, but the link has passed into the pay-archive zone, and I can't find it.
posted by nance at 6:42 PM on May 25, 2001

Also, I believe Martin Garbus argued the exact opposite position in the case of "Lo's Diary," a retelling of "Lolita" from the plundered girl's perspective. Hard to see the difference.
posted by nance at 6:44 PM on May 25, 2001

...it's a work of bad art...

Well, it's certainly a work of un-PC art. Some people might view that as the same thing as "bad", but not everyone.
posted by Potsy at 7:58 PM on May 25, 2001

Well, it's certainly a work of un-PC art. Some people might view that as the same thing as "bad", but not everyone.

Actually, it's bad art because it's a piece of shit, all politics aside. Have you ever read it? It's absolute garbage.
posted by jpoulos at 8:50 PM on May 25, 2001

I thought no one's read Wind Done Gone. It's not published. How can you call it garbage without ever having given it a chance? Now me? I have never read Gone With The Wind and never will. I consider it garbage. Not because of the quality of writing. No doubt the quality is exceptional, being considered one of the greatest twentieth century classics of literature by people with more impeccable taste than myself. I consider it garbage because it glorifies a part of American history which I don't think should be glorified. If Wind Done Gone attempts to look at the American Civil War without rose-colored glasses, I might actually read it.

It's like The Godfather. I saw part of it - enough to know this is definitely not a movie I want to see. It glorifies the mafia. Makes them look heroic. Puh-leeze. Other people can hail it as a great work of art. I'm sure it is. It's not art I personally want to experience. It's not that it IS bad. It's that I think it's bad.

Just because the Mitchell estate thinks something's bad, that's not ground to silence it. The only reason this even went to court was cuz Mitchell's nephews are a couple rich, old, spoiled schmucks. For me it brings to question the entire copyright debate. Property rights of a literary work should not outlive the original artist. But then I question literary work as property anyway. Imitation is the sincerest form of flattery. What's the point of flattering someone if they're not alive to experience it?

Besides, I don't wanna have to wait 75 years to subject the world to the sixth installment of the HitchHiker's Guide to the Galaxy trilogy: The Big Bang Burger Bar.
posted by ZachsMind at 9:16 PM on May 25, 2001

I read a few articles about The Wind Done Gone, with some plot summaries and excerpts, and it doesn't sound like it really meets the definition of "parody". Of course, just because you don't think something is funny doesn't mean it's not parody, and I haven't read the book itself, so take my opinion for what it's worth.

I don't believe, though, that this should even be an issue, because by now there shouldn't be anyone enforcing copyright on Gone With The Wind.
posted by binkin at 4:46 AM on May 26, 2001

>Well, it's certainly a work of un-PC art.

Excuse me, but please. To call "Gone With the Wind" un-PC is grounds enough for retiring "politically incorrect" from the lexicon forever. It portrays an Old South where slaves were happy to be enslaved, the only misegenation occurs between Yankee soldiers and "trashy" slaves and where a war was fought for the purpose of ruining Scarlett's social life. Don't get me wrong: The book is immensely readable and perhaps the best bad novel ever published. But if you can call passages like this "un-PC," you need to reread the book at gunpoint:

"(Yankees) didn't know that negroes had to be handled gently, as though they were children, directed, praised, petted, scolded. They didn't understand negroes or the relations between the negroes and their former masters."

This is one of scores that turn up throughout. I disapprove of judging the people of yesterday by the moral codes of today. But if black authors can be stopped from taking vigorous whacks at this book, in whatever form they prefer, that's wrong.
posted by nance at 7:24 AM on May 26, 2001

Quonsar: "noble rhetoric or no, this is a lawyer we're talking about..."

Oh that's right, I forgot, everyone else works for free.
posted by Outlawyr at 11:05 AM on May 26, 2001

Obviously, I haven't read The Wind Done Gone either. But I think the larger point here is that certain artistic creations, like Gone With the Wind, or Mickey Mouse, or Barbie, have become so ubiquitous a part of American culture that protecting them from appropriation or other forms of provocative commentary amounts ultimately to a denial of free speech. The courts have ruled that even a gesture as extreme as burning the American flag is free speech, protected under the First Amendment. But if you put up a website defacing Barbie or Mickey Mouse you will not get any such protection--since in these cases, copyrights or trademarks (I know, they are not the same thing) are allegedly being violated. It seems clear to me that in such cases the original purposes of copyright law are not being furthered; rather, corporations are being allowed to dictate the limits of speech, in a way that the government is not allowed to do.
posted by Rebis at 11:13 AM on May 26, 2001