Through the Looking Glass: Alice and the Constitutional Foundations of the Public Domain

Abstract

Alice Randall, an African-American woman, was ordered by a government official not to publish her criticism of the romanticization of the Old South, at least not in the words she wanted to use. The official was not one of the many in Congress and the Administration who share a romantic view of the Confederacy. It was a federal judge in Atlanta who told Randall that she could not write her critique in the words she wanted to use?a judge enforcing copyright law. Randall is the author of a book called The Wind Done Gone. In it, she tells a story that takes off from Gone with the Wind from the perspective of Scarlet O'Hara's mulatto half-sister. In 2001, more than fifty years after Margaret Mitchell died, and years after the original copyright for the book would have expired under the law in effect when Mitchell wrote it, a federal district judge ordered Randall's publisher not to publish The Wind Done Gone. The Court of Appeals then overturned the injunction as a prior restraint.