Margaret Mitchell's Gone With the Wind (31 page)

They reached their deal just in time. The next day, a federal trial court in New York dismissed the Davis case. The judge found that because both authors were “Southern women steeped in Southern tradition, writing about the South” it was natural there should be some similarities in their writing, but there was not enough resemblance to be actionable. While the ruling negated the excuse for Macmillan to retain Mitchell's funds, the judge left for vacation the following day, which meant there would be a delay of several weeks before he could enter a dismissal order. Brett directed Macmillan personnel not to release any formal announcement on the decision until the judge returned.
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Even after the judge dismissed the case that fall, the firm still held on to Mitchell's money on the theory that Davis might challenge the court's ruling. Not until March 1938, when the appeal period expired, did Macmillan pay Mitchell the overdue royalties.
¹³

With the Davis case disposed of, Cadwalader, Wickersham & Taft sent the author a bill for services rendered. Based on Brett's earlier prediction about what the case would cost, Mitchell had expected to owe a few hundred dollars in legal fees. But the New York lawyers were asking for a remarkable $7,581.83. The amount surprised even Brett, who thought the bill might be $2,500 at the most. He offered to pay that amount toward the invoice.
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Admitting Cadwalader's bill took her breath away, Mitchell again declined Brett's offer to help; she wanted to live up to her obligation to pay the cost of the suit.
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The only relief for Mitchell was that the court had ordered Davis to pay two thousand dollars of Macmillan's legal fees. It was a Pyrrhic victory though because Davis refused to pay and died of a heart attack in a Washington, D.C., hotel before Mitchell could wrest any of the money from her. Mitchell went after the estate and was not surprised to learn Davis was insolvent.*

The spring of 1937 presented further difficulties when the Marshes learned that a Danish newspaper,
Politiken
, had been running a serialization of
Gone
With the Wind
without having signed a contract or paying royalties. It was, in publishing terms, a literary piracy. John Marsh was also concerned that the newspaper had failed to include the Macmillan copyright notice in its installments and had not agreed in writing to refrain from distributing its publication in the United States, the two requirements Macmillan had imposed on Mitchell's acceptance of the foreign rights. To make matters worse, Marion Saunders knew what
Politiken
was doing and had done nothing to stop it.
¹⁶
When questioned, the agent explained she had been in negotiations with the publication for a royalty agreement and saw nothing wrong with the paper getting started with its serialized version while the details were being finalized. As for
Politiken
's failure to comply with Macmillan's requirements, Saunders gave a proverbial shrug. She did not think any foreign publisher would accept such terms and thought it absurd to ask.

Stephens Mitchell contacted Brett, begging forgiveness: “We are exceedingly regretful that this has happened and that we have failed unintentionally in safeguarding Macmillan's rights. . . . It is a matter of great embarrassment to us, and Mr. and Mrs. Marsh ask me to say to you that they stand ready to make whatever is the proper restitution.” What did Macmillan want them to do?
¹⁷
In a magnanimous mood, Brett told him not to worry. The publisher admitted that Mitchell would never be able to prevent distribution of translations in the United States and agreed to waive the requirement on one condition: Mitchell would have to indemnify Macmillan if a foreign serial translation was ever used to create an unauthorized edition in the United States. He acknowledged this was an onerous term but noted Mitchell could afford to bear the risk if she were careful about making the newspaper publishers agree in writing that adequate copyright notices would be included in every translation. Having accepted the foreign rights, Brett thought the responsibility ought to be hers.
¹⁸

Stephens Mitchell could not argue with Brett's logic. His sister had signed a contract with Macmillan specifying how the foreign rights would be handled and had to assume responsibility for its compliance. He thanked the publisher and assured him it would not be an issue in the future. Realizing it would be almost impossible to control foreign newspapers and magazines, the Marshes decided not to allow any other serializations overseas.
¹⁹
As for
Politiken
, Margaret Mitchell reluctantly agreed the publisher could finish running the story on the condition that it include in all future installments an appropriate statement regarding Macmillan's copyright.

Mitchell put the
Politiken
matter to rest just in time to face another problem. In June, the
New York Herald Tribune
announced that Broadway producer and lyricist Billy Rose was preparing a theatrical production of
Gone With the Wind
as part of an upcoming revue in Fort Worth, Texas. A thirty-six-year-old former nightclub owner, Rose was a small man—nicknamed the Bantam Rooster—known for big ideas. Married to Ziegfeld Follies “Funny Girl” Fanny Brice, he achieved fame co-writing musical standards such as “Me and My Shadow” and “It's Only a Paper Moon.” In 1935, he staged a spectacular musical circus extravaganza,
Jumbo
, at New York's Hippodrome Theatre and, the following year, in commemoration of the one hundredth anniversary of Texas's independence from Mexico, mounted a massive revue called the
Fort Worth Frontier Centennial
. The show featured a restaging of
Jumbo
and fan dancer Sally Rand hiding her curvaceous charms behind a balloon.

His new show,
Frontier Fiesta
, also promised to be quite a spectacle. The
Herald Tribune
described the planned
Gone With the Wind
segment:

You will see a plantation in the Old South. Ladies and gentlemen will appear at a garden party, and Harriet Hoctor, famous ballerina, will arrive in a carriage drawn by four horses. She will portray Scarlett O'Hara, characterizing the romance of the book in dance. Mr. [Everett] Marshall will portray Rhett Butler and will sing
Gone With the Wind
. . . . Pickaninnies will dance and there will be an ensemble dance. The distant booming of cannon is heard, and Marshall gallops in on a horse, to shout that the end of a civilization is at hand. As the huge stage begins to turn, the mansion bursts into flame.
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The Fort Worth city fathers had high hopes that Rose would recapture the previous year's success with another extravaganza.

For all his elaborate planning, Rose forgot one essential detail—to ask Mitchell for permission to dramatize her novel. The author was shocked at his gall in laying claim to her story and characters. However, she was unsure how to proceed. With all the press attention over the Davis case, Mitchell was loath to take any action that would put her name back in the spotlight. She also did not want to cause trouble for a community event, especially in Texas, where her paternal grandfather had served in the Civil War. Yet, with the guidance of her brother and father, she decided to take a stand. If she allowed Rose to walk away with the dramatic rights for free, no one else would be willing to pay for them should she ever decide to sell. The day before the scheduled opening on June 26, 1937, Stephens Mitchell wrote the Frontier Fiesta Association, the planning organization in Fort Worth, pointing out that his sister owned the dramatic rights to
Gone With the Wind
and had never granted those rights to Rose or anyone else. The Fiesta's lawyers were nonplussed. They claimed to understand the author's rights in her literary property but said Mitchell had nothing to worry about because not a word of her text would be used in Rose's production. Suggesting that she should not place too much reliance on newspaper reports, the association invited Mitchell to Texas to see the show, which opened as planned.
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Mitchell had no intention of traveling to Texas or of being brushed off. As soon as Rose's show opened, press reports confirmed that the producer had usurped
Gone With the Wind
for his own benefit. On July 7, the
New
York Evening Post
carried a report confirming the parallels, and a four-page feature in the July 19 edition of
Life
included two photographs from the
GWTW
sequence: one of costumed belles and beaux in front of a mansion facade, which the magazine referred to as the home of Scarlett O'Hara, and the other of a group of black children, with a caption stating “From
Gone
With the Wind
.” Stephens Mitchell hired legal counsel in Texas to approach the Fiesta in a more direct fashion. This time, the officials denied wrongdoing on the grounds that Rose had cleared the copyright matters through his friend, David O. Selznick. When the lawyers explained that Selznick had no authority to grant such rights, the officials reversed course and agreed to cooperate with Mitchell. However, they had no money to offer her in damages. The show was running a deficit and some of the smaller entertainment features were already scheduled to be eliminated in an attempt to cut costs. The officials warned Mitchell that Rose was committed to proceeding with the
Gone With the Wind
scenes and had discussed taking that portion of the show on a road tour.
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Marsh hired Howard Reinheimer, a well-known literary rights lawyer in New York, to assess whether Mitchell had a viable claim for copyright infringement against Rose. Reinheimer concluded that the author did have a case and pointed out that she arguably had a legal obligation to file suit, given that she had promised Selznick she would defend the
Gone With the
Wind
copyright. The lawyer advised that the next step would be asking Macmillan to join her in a legal action. Although she owned the dramatic rights to her novel, Macmillan was the copyright owner of record and, thus, an interested party. If the publisher did not join the case, Rose would likely try to bring the publisher in involuntarily. Such action might result in Mitchell's contract with Macmillan being made public, something the author did not want to happen. She also did not like giving the impression that she and her publisher were not on the same team.

Although Mitchell wanted to get matters moving against Rose, it was not an ideal time for her to be asking Macmillan any favors. As luck would have it, this was the same week the Davis hearing was being held and all the machinations on the tax issue were being resolved. Further complicating matters, Saunders advised the Marshes that questions had been raised about the legitimacy of
Gone With the Wind
's copyright in Europe. It would be yet another reason Mitchell needed Macmillan's assistance.

The European trouble began that busy spring of 1937. Saunders had been negotiating a contract with a Dutch publisher named W. L. Brusse when rumors began to surface in the Netherlands questioning whether
Gone With
the Wind
's copyright was protected under the “backdoor” Berne provision. The difficulty centered on the fact that the first printing of the American edition showed a publication date of May 1936, a month before the Canadian edition's publication. Brusse would not finalize the deal until Saunders proved to him that the American and Canadian editions had been published simultaneously, as required by the Berne Convention.
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At Saunders's behest, Macmillan's Everett Hale wrote to Brusse, stating that the editions in Canada and the United States were both released on June 30, 1936.
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Not satisfied with Hale's statement, Brusse wanted Macmillan Canada to provide further assurances. Matters began to unravel. Hugh Eayrs of Macmillan Canada checked his records and noticed there had been a twoweek delay in registration of the Canadian copyright after the June 30 publication. He wrote to Hale on May 21, 1937, claiming that his office had applied for registration of the
Gone With the Wind
copyright on June 30, suggesting the delay had been the copyright office's fault.
²⁵
Did Eayrs not know his office had failed to file the registration until July 14? In any event, it was unclear to him how he should respond to Brusse, so he asked Hale to tell him what to say.
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