Margaret Mitchell's Gone With the Wind (32 page)

Saunders and Hale took Eayrs's story at face value, and the party line became that Macmillan Canada had applied for the copyright registration concurrently with the American and Canadian publications on June 30. Anxious to salvage the deal, Saunders asked Frederic Melcher, editor of
Publishers Weekly
, for an expert opinion on whether the requirements of the “backdoor” Berne provision had been complied with under this scenario. The editor reviewed Eayrs's version of the facts and expressed his opinion that the delayed registration was inconsequential given that, as he understood it, application had been made promptly upon publication.
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Melcher's assurances were not enough for Brusse. The negotiations were scuttled when, in June, another Dutch publisher, Zuid-Hollandsche Uitgevers Maatschappij, known as ZHUM, announced it was preparing to release a multivolume illustrated edition of Mitchell's book. Citing the May publication date in the first printing, ZHUM asserted that the Canadian and American editions of
Gone With the Wind
had not been published simultaneously and, thus, Mitchell's book was not protected under the Berne Convention. The company claimed it was free to publish
Gone With the Wind
without Mitchell's permission and without paying her royalties. Saunders had a major problem on her hands. If ZHUM was correct, then publishers in all Berne signatory nations would have the same right, and her hopes of earning any commissions off Mitchell's European royalties would go up in smoke. To prevent that from happening, she approached ZHUM and tried to convince the firm to sign a contract with Mitchell.

Eager to avoid trouble with Marsh, Saunders did not initially tell her clients what was going on. She discussed the situation only with Macmillan, which she considered at fault for having released the books with the May printing date and not ensuring that the Canadian publication was registered properly. In a June 29, 1937, letter, she chastised Latham for failing to oversee matters more vigilantly, given that he had known before publication that Mitchell's book would prove valuable. Saunders warned him that if ZHUM refused to sign a contract, she would look to Macmillan to make things right, including paying any necessary legal fees. In a vaguely threatening tone she wrote, “Our friends in Atlanta do not know very much about Holland, and as there is this difference in the copyright dates, I hope you will not mind my bothering you with the details.”
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By the middle of July, Saunders had not convinced ZHUM to sign a contract. The agent came clean with the Marshes and gave them a crash course in international copyright law. Dismayed at the perilous position of the book's overseas copyright, Mitchell was offended that the American government did so little to protect her interests abroad while taxing her within an inch of her life. More troubling, she realized what a mess the Berne problem presented in terms of the movie contract's “God Almighty clause,” which obligated her to protect the copyright overseas. It was further proof to the Marshes of how ill prepared they had been to negotiate the movie contract and how poorly Mitchell had been represented by Macmillan in the negotiations.

Regardless of what the Berne treaty said, Mitchell considered ZHUM a thief. But what could she to do stop it? Taking on a character like Rose in Texas was one thing, battling international copyright law in The Hague quite another. The Marshes had no connections there, did not speak the language, and knew nothing about the Dutch legal system. Yet, if they did not fight ZHUM, they could be viewed as conceding that the copyright was not protected in Europe. Mitchell understood she had an obligation to Selznick to protect the copyright and, therefore, had no choice but to jump on ZHUM “like a duck on a June bug.”
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So, at the same time the Marshes were working on the Rose matter, they also had to deal with finding Dutch legal counsel. With Saunders's assistance, Stephens Mitchell hired a lawyer named J. M. W. Knipscheer, whom the agent said had been recommended by the Netherlands Chamber of Commerce. He had an office in New York and worked with an associate in The Hague named Dr. Pot, who could handle any court filings and proceedings overseas. As in the Rose case, the lawyers advised Mitchell to file a lawsuit and that Macmillan should join as a co-plaintiff. She summed up her affairs on July 22, 1937: “To misquote Gilbert and Sullivan, ‘An author's life is not a happy one!' . . . Life is going to be a trifle complicated for some time to come.”
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The couple surely did not relish approaching Macmillan with news of two potential lawsuits—one across the country, the other across the Atlantic. However, they had no choice.

Perhaps to soften the blow, they did not present both cases to the firm simultaneously. On August 3, a lawyer from Reinheimer's office, William Bratter, telephoned Macmillan to discuss Mitchell's concerns about the Texas show. George Brett was on vacation, so the operator transferred the call to Richard Brett. Bratter described Mitchell's determination to fight Rose and asked Macmillan to join the cause. Brett received the entreaty coolly. The
Frontier Fiesta
was getting good reviews and coverage in major publications. He did not see why Macmillan would want to spend money fighting good publicity. Only after Bratter promised that Mitchell would pay all litigation costs did Brett agree to consider it.
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While Richard Brett mulled over the Rose case, Stephens Mitchell broached the subject of the Dutch piracy. He wrote George Brett on August 4, asking if the firm, as copyright owner, would join in the fight against ZHUM.
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Here, too, the matter was referred to Richard Brett, who demonstrated little inclination to volunteer Macmillan's services.
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The younger Brett ran the issue by Taft and learned that Macmillan was not obligated to join the lawsuit. That was all Brett needed to hear. He got back to Stephens Mitchell right away, telling him that, although he would like to be of assistance, Macmillan could not get involved.
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He excused his lack of helpfulness on the fact that the United States had not signed the Berne Convention, as if that somehow precluded the firm from taking a stand in support of the book's copyright. In a thinly veiled brush-off, the younger Brett suggested the author ask Macmillan Canada for help. Evidence of Brett's lack of sympathy for her plight can be found in a letter he wrote to Eayrs cautioning him that Mitchell might ask the Canadian firm to join the litigation. Brett advised his Canadian counterpart to assist her only if he could do so at no expense.
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Richard Brett had a harder time deciding how to handle the Rose litigation. He recognized the validity of the author's claim but felt that the “Mitchell Tribe,” as he referred to the Atlantans, was making an unnecessary fuss.
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He asked Taft and the Macmillan sales department for guidance. The lawyer again advised that the publisher was not required to assist the author, and Herman Beaty, manager of trade advertising, recommended Brett not join the suit. He warned that Rose might play the victim by claiming Macmillan had made millions off the story of Scarlett and Rhett and was picking on a poor artist trying to earn a little money for a charitable event.
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This made sense to Brett, and he called Stephens Mitchell to tell him that Macmillan did not have a dog in that fight either. The publisher would not join the suit, and Richard Brett urged the Marshes to reconsider the idea of going after Rose.
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As had happened the previous summer, George Brett returned from vacation to find an unhappy Margaret Mitchell. This time, he did not dismiss her concerns out of hand. He agreed with his brother that Macmillan had no stake in the Dutch case; Mitchell had accepted the foreign rights, and she had to protect them.
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However, on the Rose matter, he reversed course and agreed to join the lawsuit. On September 2, he wrote to Marsh and apologized for the company's unhelpful attitude. Brett understood Mitchell's anxiety about Rose's show and said that, although it was not in the best interests of Macmillan's sales department, he had no qualms about coming to her aid.
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With Macmillan's cooperation, Mitchell's lawyers filed suit in Texas, seeking an injunction and damages. Rose reacted with characteristic swagger, claiming the case did not worry him in the least. He extended an invitation to the Marshes to experience the
Frontier Fiesta
in person, offering to fly them down at his expense. According to Mitchell, when her husband refused, Rose threw down the gauntlet. He knew the author was averse to traveling and newspaper publicity and said he would make her come to Fort Worth to testify, where she was sure to find plenty of public attention.
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Marsh replied that they were willing to take that chance.

Mitchell never had to make the trip. On September 14, a Texas court issued a restraining order, precluding the Frontier Fiesta Association from paying Rose any income from the performances. The judge set a hearing date of September 27 on the issue of whether to halt the show. In the face of almost certain failure, Rose agreed to bring the curtain down on September 26, three weeks earlier than scheduled. With the show canceled, the only remaining issue was damages. The parties negotiated over the next several months and reached an out-of-court settlement that called for a formal apology to Mitchell and payment of three thousand dollars in damages by Rose. The agreement required an additional penalty of twenty-five thousand dollars should the defendants again use the author's title or characters without her permission.

Mitchell's decision to take action paid off. She stopped Rose and sent a clear message that
Gone With the Wind
was not fair game. The experience gave her a new appreciation for the seriousness of the task before her. Chiselers lurked around every corner, she now felt, and it was up to the Mitchell-Marsh family to protect her rights. She might be a housewife from Atlanta, but that did not make her a doormat.

Mitchell put this new resolve to the test in dealing with Saunders. Amidst all the difficulties with ZHUM and Rose that summer, it had come to light that
Politiken
continued to omit the Macmillan copyright notice in its serialization. Saunders brushed the matter aside on the grounds that copyright notices were not required in Berne nations. She also did not see how such wording would have any practical effect deterring piracies. The Marshes were appalled by her reaction and let her know it:

If your . . . argument were carried to its logical conclusion, you would be in the position of saying that there should be no laws against murder, arson and theft, simply because murder, arson and theft do take place in this naughty world, in spite of the laws against them. Just because there is always a danger that some evil person may attempt to steal
Gone With the Wind
, is that any reason why we should abandon any efforts to prevent theft? Is it any reason why we should not take sensible precautions to safeguard the property?
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The Marshes once again had to ask Macmillan for guidance.

This was another issue put before George Brett when he returned from vacation. He advised the couple that they needed to demonstrate the seriousness of the matter to
Politiken
and demand that it halt publication. Failure to include Macmillan's notice, he warned, could jeopardize the copyright, which Mitchell had an obligation to defend on behalf of both Selznick and Macmillan.
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Marsh accepted the reproach and directed Saunders to fix things. But, once again, she balked. To her, it was not an issue worthy of expending effort, no matter what the Marshes had promised Macmillan or Selznick. The author and her husband were shocked at the agent's boldness in defying their instructions. Mitchell described their dealings with Saunders to Brett:

We have had to write interminable letters, argue over long distance and in general wear out our nervous systems, trying to get her to do the things she had promised in her contract with me to do. Never before in the history of our legal-minded family have we ever had dealings with this kind of person, and complete bewilderment was added to our weariness. We are all accustomed to people who do not thoughtlessly sign agreements and then refuse to live up to them.
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After talking themselves “blue in the face” trying to get Saunders to act, Marsh had had enough. Yet, he was not anxious to fire her. They were close to finalizing contracts in several countries; bringing in a new agent would only serve to cause further delays. He swallowed his pride and asked Brett to step in and knock some sense into Saunders.
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Once again, Brett proved himself on Mitchell's side. He took the agent out to lunch and set her straight on the seriousness of the situation. Coming from Brett, arguably the most powerful publisher in the United States, the medicine went down easier for her. She immediately cabled
Politiken
and demanded that the newspaper add the copyright notice to its future installments.
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Mitchell thanked Brett for taking “a hand in the matter” and putting “things to rights.” She conceded that Saunders may be “right and that we are indeed ignorant, country and prone to see trouble in the future where no trouble will ever come,” but she was not ashamed of their position. “All of us would rather take steps immediately to prevent any possibility of future trouble rather than have it develop.”
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