Derivative Works: Where Is the Line?

Speaking of making unlikable characters sympathetic, there’s a good example in Sharyn McCrumb’s THE DEVIL AMONGST THE LAWYERS, which I’m rereading. This novel concerns a Depression-era murder case in the mountains of Virginia and focuses on several of the out-of-town reporters covering the trial. One of them, from a wealthy Philadelphia family, comes across as an aloof, condescending snob. Yet by showing through introspection and flashbacks how this man has been scarred by traumatic events in his past, the author brings us to sympathize with him by recognizing that his persona serves as a shield against further pain.

This week, though, I started thinking about fanfic and other derivative works when I read a notorious ten-year-old work, THE WIND DONE GONE. Here’s a draft of the mini-review of it that will appear in my October newsletter:

THE WIND DONE GONE, by Alice Randall. You may remember that this 2001 novel raised a lot of controversy because of the lawsuit against it by Margaret Mitchell's estate. A court ruled that its publication was legal on the principle that parodies don't constitute copyright infringement. Well, this story isn't a "parody" of GONE WITH THE WIND any more than THE WIDE SARGASSO SEA is a parody of JANE EYRE. THE WIND DONE GONE is a spinoff, most of which occurs after the end of Mitchell's novel, with Rhett already having left Scarlett. The narrator, Cynara, Rhett's mulatto mistress, fills in details about the other characters' earlier lives in brief flashbacks and, later, moments of revelation when she learns facts previously hidden from her. The narrative is not satirical but quite serious. The only feature that might be considered parody is Cynara's habit of giving nicknames to Mitchell's characters, as well as the plantation itself (she refers to Tara as either "the Cotton Farm" or "Tata"). Rhett gets off easily, being identified simply as "R." for most of the novel (but later as "Debt Chauffeur"). For example, Scarlett, Cynara's half sister, is Other; Scarlett's parents are Planter and Lady; Belle Watling is Beauty; Bonnie is Precious; Melanie is Mealy Mouth; Ashley is Dreamy Gentleman. Prissy's pseudonym as Miss Priss stays closest to the original, and Mammy is still Mammy. This technique ensures that the story never explicitly duplicates the contents of GONE WITH THE WIND, making Randall's novel all the more obviously a transformative rather than merely derivative work. Cynara, the daughter of Gerald O'Hara and Mammy, was sold away in her teens and eventually ended up in Belle Watling's brothel. Working as a maid, not a prostitute, she met Rhett Butler and became his mistress about a year before he met Scarlett. In fact, it was at Cynara's instigation that Rhett first became aware of Scarlett. Cynara's memoir's knife-sharp reflections on the events of GONE WITH THE WIND give the black perspective on the story with a different slant, revealing that the way Mitchell tells the family's history is not necessarily what really happened. Births and deaths play out differently from the way Mitchell tells them. Mammy and Pork (called "Garlic" by Cynara) steer the course of life at Tara behind the scenes. Ancestral secrets are revealed to the reader, though not usually to the oblivious white characters. As was notoriously mentioned when the book first came out, Ashley is gay—well, not exactly. Bisexual, maybe, and that facet of his character receives only a few brief mentions. Given his willingness to accept a sexless marriage with Melanie after the birth of Beau, it's not unbelievable to read that Ashley at one point in his early life had a liaison with a male slave. I started reading the novel to decode its rewriting of GONE WITH THE WIND, but I gradually became interested in Cynara herself as a strong, complex character. Her love-hate relationship with her Mammy and Scarlett unfolds little by little. She accompanies Rhett to Washington at the height of Reconstruction, when educated black men occupied the seats of power, and becomes involved with a black Congressman. Through her viewpoint, Reconstruction represents a brave new world, in contrast to Mitchell's portrayal of those years as nothing but brutal oppression against the South. This embryonic utopia soon falls apart, of course, and Cynara's Congressman loses the next election. Her first-person diary is framed by a prologue explaining how it came to be published and an epilogue summarizing the rest of her life.

On the basis of the content described above, I consider THE WIND DONE GONE a sort of rebuttal to GONE WITH THE WIND, in dialogue with its famed predecessor. Although it relies on the reader’s knowledge of the source novel, it’s a strong, original story in its own right. In my opinion, it’s neither parody nor plagiarism. Plagiarism and copyright infringement, of course, aren’t the same thing (although the former is usually the latter, too, but not always). Plagiarism means reproducing someone else’s work and claiming it as one’s own. A novel that changed all the names in DRACULA but nothing else in the text and tried to sell the result with a new author’s name on it would be plagiarism but not copyright infringement, since DRACULA is now in the public domain. Fanfic is a delicate area because, although fan writers don’t claim ownership of the original author’s characters and setting, if they use these without the creator’s permission they are legally violating copyright. Most copyright holders tacitly ignore fanfic, to the benefit of readers in my opinion. I’ve read fanfic based on TV shows that I think has deeper characterization and storytelling than the source material.

THE WIND DONE GONE falls into a different category because it was published commercially. However, I think it’s transformative enough to escape the charge of copyright violation, and a judge obviously agreed.

In the era of the rise of the novel in the eighteenth century, standards for such things seem to have been looser. Henry Fielding’s first two books were fanfic—or maybe anti-fanfic—of Samuel Richardson’s PAMELA. The first, SHAMELA, is an outright parody of Richardson’s sentimental romance. Fielding’s JOSEPH ANDREWS, rather than a direct imitation, is a sequel or spinoff, starring the naïve younger brother Fielding invents for Pamela. If PAMELA and Fielding’s two derivative works were written nowadays, though, he would not be able to get away with commercial publication of either one.

Where do you think the line falls?

Margaret L. Carter
Carter's Crypt