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Pride and Property

The Gone With the Wind case pits our notion of freedom against someone else's commercial interest. What happened to writers on the way to the entertainment economy?

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The media business is the search for annuities. A character, a concept, a title, a catchword, an image, a ditty, whatever . . . anything that achieves any kind of cultural currency is a potential revenue stream for shareholders and heirs for generations to come.

The Tennessee Legislature extended to Elvis Presley, and to anyone else in Tennessee who might warrant it, a "right of publicity" that would continue after death. Elvis's heirs, in other words, can continue to control and sell the Elvis image and personae. No one else can make use of Elvis -- even as a historical figure. This "right of publicity" concept spread naturally to California, where it was of great benefit to the many heirs of the celebrity industry (it is much better for a celebrity to die in California than, say, New York, which does not have such a right).

The Rock and Roll Hall of Fame has tried to charge photographers who photograph its building -- the theory is that not only do the owners of the building own the real property, but they own, too, the unreal property of identity and image.

The McDonald's corporation, as part of this unreal property grab, is trying to trademark virtually every Mc-prefix derivative ("McQuestion," "McSymphony," "McProduct," "McMillion").

The Martin Luther King Jr. estate demands payment for and approval of any use of King images or words, even in a historical context (the estate has most recently turned him into a corporate pitchman for Alcatel).

Then there are the hundreds of cease-and-desist letters sent out by Viacom lawyers to the Websites of Star Trek fans.

All of which brings us to The Wind Done Gone, the story of the mulatto half-sister of Scarlett O'Hara, recently enjoined from publication by the rights holders of Gone With the Wind, which, were it not for the extension of the copyright laws as part of another concerted effort to squeeze more dough for the families of dead authors and artists, would now be in the public domain.

The victory for the GWTW heirs -- a ruling that, if it stands on appeal, promises to extend the range of intellectual-property claims -- was the work of the literary lawyer Martin Garbus, who proclaimed it a victory for writers everywhere. (He refers to the Mitchell estate -- really various lawyers from the Sun Trust Bank in Atlanta acting on behalf of Margaret Mitchell's nephews, Eugene and Joseph Mitchell -- as "the author.")

Garbus, with all the floridness and vanity of an old-time trial attorney, is the best-known free-speech lawyer in the country. He's represented Lenny Bruce, Susan Sontag, Philip Roth, Timothy Leary, Daniel Ellsberg, Samuel Beckett, the estate of John Cheever, Andrei Sakharov, and Nelson Mandela, among others (Salman Rushdie, however, who often appears on this list, has felt compelled to publicly deny any association with Garbus).

Now, it is true that, in a somewhat less visible role, and on behalf of some of these same clients, he's also been quite a thwarter and enjoiner. He tried to stop a biography of Susan Sontag; he managed to block a collection of uncollected Cheever stories (the family had agreed but then thought it could get a better deal); there was a Beckett production he threatened with a temporary restraining order; and he writes fulminating letters on behalf of clients, sometimes writers, who have managed to get themselves, unflatteringly, in other people's books (I myself have gotten, to no great consequence, such a Garbus letter).

Certainly, though, it's his reputation as a defender of writers that precedes him ("Perhaps the closest thing in New York to a modern-day Daniel Webster, Garbus has made a living by fighting the dark side in all its forms," wrote The Village Voice not long ago). Garbus had even recently represented the author of a parody of Lolita when the Nabokov estate tried to stop its publication.

He solemnly, and sadly, told the GWTW court in Atlanta: "I have never been in the position of trying to stop a book from being published."

Obviously, you wouldn't want a philistine, or Southerner, arguing the virtues of prior restraint or offering his opinion on literary matters.

Indeed, Garbus managed to get the case to turn on the most literal of literary notions: What is a parody? If the book, all parties agreed, could have been shown to be a parody (an argument being made, for and against, by men who, one might assume, do not often read parodies or, probably, many books of any sort), then its publication would have been allowed, but if it is just "revisionism," in Garbus's characterization ("You can write revisionist history," he says, but not, he argues, a "revisionist novel"), then it would have to be disallowed.


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