Cathay Smith (The University of Montana Alexander Blewett III School of Law) has posted Rewriting History: Copyright, Free Speech, & Reimagining Classic Works (69 Villanova Law Review (forthcoming 2024)) on SSRN. Here is the abstract:
On February 17, 2023, news broke that Puffin Books, a subsidiary of Penguin Random House and publisher of Roald Dahl’s books, had edited at least ten of Dahl’s classic children’s books to “make them less offensive and more inclusive.” These edits included changing words related to characters’ appearances, race, gender, weight, and mental health, such as removing descriptions of children as “fat,” women as “ugly,” and people as “crazy,” replacing phrases like “the old hag” with “the old crow,” and updating “weird African language” so it was no longer “weird.” The public backlash to the news was significant and attracted criticism from several high-profile public figures. But, despite the significant media coverage and public discussion of those announcements, little attention has been paid to any actual legal implications of revising classic books.
This Article offers a comprehensive examination of the copyright and free speech implications of revising classic works, including books, films, and dramatic works. Through extensive research of primary materials and secondary sources outside the legal literature, this Article surveys the history of revising classic children’s books, films, and dramatic works to remove offensive content and make them palatable to modern audiences. It then explores three questions: Do edits to classic children’s works advance social justice or do they rewrite history? Do they censor speech or do they promote copyright’s purpose of encouraging free expression? How do these edits to classic works implicate copyright doctrines of infringement, fair use, and derivative rights? By answering these questions, this Article uncovers potential conflicts between copyright policy, free speech, and social policy, and reimagines copyright’s role in serving the diverse interests of society.