## Facts

- SunTrust Bank, as trustee for the Margaret Mitchell copyright interests, controlled the copyright in *Gone With the Wind* (GWTW) and had licensed derivatives and related commercial uses.
- Houghton Mifflin planned to publish *The Wind Done Gone* (TWDG) by Alice Randall, a fictional work intentionally based on GWTW and written as a critique of GWTW’s depiction of slavery and the Civil War–era South.
- TWDG borrowed numerous protected elements from GWTW, including recognizable characters, relationships, settings, major scenes, and certain verbatim dialogue and descriptions, to “conjure up” the original while commenting on it.
- SunTrust sued for copyright infringement (and asserted related claims) and sought a preliminary injunction to stop publication.
- The district court found substantial copying, rejected fair use, and entered a preliminary injunction barring publication.

## Issues

1. Whether SunTrust showed a substantial likelihood of success on the merits despite the defendant’s fair-use defense grounded in parody/critique under 17 U.S.C. § 107.
2. Whether the district court abused its discretion by preliminarily enjoining publication of a book where damages might be available and First Amendment concerns were implicated.
3. How the statutory fair-use factors apply to a commercially published, book-length literary parody that borrows extensively from a famous novel.

## Decision

- The Eleventh Circuit vacated the preliminary injunction and remanded for further proceedings on remaining claims.
- The court held that, on the record presented, SunTrust failed to carry its burden for extraordinary preliminary relief.
- The court concluded TWDG plausibly functioned as a transformative parody/critique of GWTW, making SunTrust’s likelihood of success insufficient to justify enjoining publication.
- The court also treated the publication ban as a constitutionally disfavored restraint, reinforcing the need for rigorous satisfaction of injunction prerequisites.

## Legal Principles

- Fair use under 17 U.S.C. § 107 can protect a commercial work when the use is sufficiently transformative and comments on or criticizes the original, including through parody.
- Parody may copy enough of the original to call it to mind; the permissible amount is evaluated in relation to the parodic purpose rather than by mechanical counting.
- In parody cases, the “nature of the copyrighted work” factor often carries limited weight because parody typically targets well-known expressive works.
- Market harm focuses on substitution and lost demand for the original or its legitimate derivatives; reputational or “prestige” harm from criticism is not cognizable market harm under copyright.
- A preliminary injunction requires a clear showing of the traditional prerequisites, including likelihood of success; courts should be particularly cautious about enjoining publication where speech interests and a substantial fair-use defense are present.

## Conclusion

The Eleventh Circuit vacated an order blocking publication of a novel that borrowed heavily from *Gone With the Wind* to criticize it, concluding that the fair-use/parody defense was strong enough to defeat the copyright holder’s request for preliminary injunctive relief and that restraining publication required especially careful application of injunction standards in light of First Amendment concerns.


SunTrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001)