Suntrust Bank, as Trustee of the Stephen Mitchell Trusts F.B.O. Eugene Muse Mitchell and Joseph Reynolds Mitchell v. Houghton Mifflin Company

MARCUS, Circuit Judge,

specially concurring:

I concur in Judge Birch’s thoughtful and thorough opinion but write separately to emphasize that, on this limited record, Suntrust has fallen well short of establishing a likelihood of success on its copyright infringement claim. I stress three points. First, the district court erred by finding that the critical or parodie element of The Wind Done Gone is anything but clear-cut. Far from amounting to “unabated piracy,” 136 F.Supp.2d 1357, 1369 (N.D.Ga.2001), The Wind Done Gone is unequivocally parody, as both Judge Birch and the Supreme Court in…