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Cyber Vulnerabilities as Trade Secrets

Can a cybersecurity vulnerability—like a bug in code or a backdoor into a system—be a trade secret? Claiming a flaw as a trade secret may sound strange. Usually, talk of trade secrets conjures up images of scientists in laboratories or complex computer algorithms. But nothing in the definition of a trade secret excludes vulnerabilities. As the electronic theft of company secrets increases, recognizing cyber vulnerabilities as trade secrets could play an important role in safeguarding business information. For companies that depend on trade secret protections, increased digitalization means that their trade secrets may be exposed. And this exposure could result not only in diminished legal protections but also in a devastating loss of company profits, strategic advantage, or cutting-edge research. This Essay proposes that recognizing cyber vulnerabilities as trade secrets can limit those harms and protect important company information.

Introduction

Every year, trade secret theft costs American businesses between $225 billion and $600 billion.1 1.Fed. Bureau of Investigation, Executive Summary—China: The Risk to Corporate America (2019), https://www.fbi.gov/file-repository/china-exec-summary-risk-to-corporate-america-2019.pdf/view [https://perma.cc/93BF-FGZR].Show More Some of the thefts are perpetrated from the inside, like by a disgruntled employee who takes confidential files with him to his next job. But a significant portion of this figure comes from cyber espionage—digitally stealing confidential information or trade secrets from a commercial entity.2 2.See, e.g., Nicole Sganga, Chinese Hackers Took Trillions in Intellectual Property from About 30 Multinational Companies, CBS News (May 4, 2022, 12:01 AM), https://www.cbs‌news.com/news/chinese-hackers-took-trillions-in-intellectual-property-‌from-about-30-multi‌national-companies/ [https://perma.cc/WT93-T5HL] (noting that “[t]he CCP continues to increase its theft of U.S. technology and intellectual property” via hacking operations).Show More The digitalization of business records and data assist this form of cyber theft.3 3.Tim Maurer & Arthur Nelson, The Global Cyber Threat, Fin. & Dev. 24, 25 (Mar. 2021), https://www.imf.org/en/Publications/fandd/issues/2021/03/global-cyber-threat-to-financial-systems-maurer [https://perma.cc/6DN4-3YQR].Show More No longer do thieves need to break into a company’s offices and sneak out with physical files. Now, the crime can happen from anywhere, including the other side of the world.4 4.See, e.g., Phil Mercer, China Accused of Economic Espionage on an Unprecedented Scale, VOA News: East Asia (Oct. 18, 2023, 2:39 AM), https://www.voanews.com/a/china-accused-of-economic-espionage-on-an-unprecedented-scale/7315625.html [https://perma.cc/5ZPY-K‌4EV].Show More And as companies increase the amount of information they store digitally, “they have more bits and bytes worth stealing.”5 5.Corporate Espionage Is Entering a New Era, Economist (May 30, 2022), https://www.‌economist.com/business/2022/05/30/corporate-espionage-is-entering-a-new-era [https://perm‌a.cc/8NJ3-S4T8].Show More

Accompanying this increase in corporate espionage is an increase in the kinds of businesses targeted. The world of corporate spying is “no longer cent[e]red on a few ‘sensitive’ industries, such as defen[s]e and pharmaceuticals.”6 6.Id.Show More Any business is at risk of having its proprietary information electronically stolen. Instead of a rarity, corporate espionage has “become a general business risk.”7 7.Id.Show More

On top of the direct economic costs of corporate spying, this increase in cyber espionage greatly reduces companies’ incentives for innovation and investment.8 8.Steve Morgan, Global Cybercrime Damages Predicted to Reach $6 Trillion Annually by 2021, Cybercrime Mag. (Oct. 26, 2020), https://cybersecurityventures.com/annual-cyber‌crime-report-2020/ [https://perma.cc/JG3C-Q8WL].Show More And understandably so. There is less incentive to devote resources to research and development if that research, or any related proprietary information, could be compromised in a cyberattack. A competitor hiring a hacker to break into your system and steal your cutting-edge research is the modern-day version of a competitor hiring a photographer to take aerial photographs of your company’s new factory from an airplane. (Yes, that actually happened.)9 9.See E. I. duPont deNemours & Co. v. Christopher, 431 F.2d 1012, 1013 (5th Cir. 1970).Show More A foreign government may target American companies’ data to help their own businesses “catch up with advanced U.S. technology.”10 10.Eamon Javers, Inside China’s Spy War on American Corporations, CNBC (June 21, 2023, 9:10 PM), https://www.cnbc.com/2023/06/21/inside-chinas-spy-war-on-american-corporatio‌ns.html [https://perma.cc/LXB2-3MCU].Show More Or a cybercriminal may target your data in the hopes of selling it to a third party for a profit.11 11.See, e.g., United States v. Genovese, 409 F. Supp. 2d 253, 255 (S.D.N.Y. 2005) (describing defendant’s charges for attempting to resell Microsoft source code on his personal website).Show More Given the range of threats, keeping trade secrets “safely locked in the digital vault can be devilishly difficult.”12 12.Corporate Espionage Is Entering a New Era, supra note 5.Show More

Fortunately for companies, trade secret law has developed rapidly over the last few decades to provide robust protection against these thefts. The Economic Espionage Act was passed in 1996 to “protect the trade secrets of all businesses operating in the United States, foreign and domestic alike, from economic espionage and trade secret theft and deter and punish those who would intrude into, damage, or steal from computer networks.”13 13.President William J. Clinton, Statement on Signing the Economic Espionage Act of 1996, 32 Weekly Comp. Pres. Doc. 2040 (Oct. 11, 1996), reprinted in 1996 U.S.C.C.A.N. 4034.Show More The Computer Fraud and Abuse Act, most recently amended in 2008, allows for both criminal charges and civil suits against anyone who breaks into a computer “without authorization or exceeding authorized access.”14 14.18 U.S.C. § 1030(a)(1).Show More Nearly all fifty states have adopted the Uniform Trade Secrets Act (“UTSA”),15 15.Trade Secrets Act Enactment Map, Unif. L. Comm’n, https://www.uniformlaws.org/‌committees/community-home?CommunityKey=3a2538fb-e030-4e2d-a9e2-90373dc05792 [https://perma.cc/ML7V-BSCT] (last visited Feb. 26, 2024).Show More and Congress passed a federal version of the UTSA—the Defend Trade Secrets Act—in 2016.16 16.Defend Trade Secrets Act, Pub. L. No. 114-153, 130 Stat. 376 (2016).Show More So if a company’s top-secret formula is stolen, the legal system affords the company a variety of ways to remedy the issue.

But the problem of corporate espionage is not limited to stealing data or research outright. Though companies spent $219 billion globally on cybersecurity defenses in 2022,17 17.Matt Kapko, Global Cybersecurity Spending to Top $219B This Year: IDC, Cybersecurity Dive (Mar. 17, 2023), https://www.cybersecuritydive.com/news/cybersecurity-spending-increase-idc/645338/ [https://perma.cc/6TV9-D7QT].Show More there is no such thing as perfect cybersecurity, meaning that vulnerabilities—weaknesses in a system that can be exploited by an attacker—exist in any system.18 18.Jay Pil Choi, Chaim Fershtman & Neil Gandal, Network Security: Vulnerabilities and Disclosure Policy, 58 J. Indus. Econ. 868, 869 (2010).Show More Rather than hacking into a system and selling the data or information located within, some cybercriminals try to monetize these flaws by selling hacking tools, hidden exploits, or discovered system vulnerabilities on the black market.19 19.See, e.g., Kate O’Flaherty, Notorious Hacking Forum and Black Market Darkode is Back Online, Forbes (Apr. 10, 2019, 12:06 PM), https://www.forbes.com/sites/kateoflahertyuk/20‌19/04/10/notorious-hacking-forum-darkode-is-back-online/ [https://perma.cc/‌LX4Y-HY8J] (discussing a site on the black market which “serves as a venue for the sale & trade of hacking services, botnets, malware, and illicit goods and services”).Show More This market for previously undiscovered software flaws (otherwise known as zero-day vulnerabilities) is of particular concern because, unlike data theft, it is unregulated.20 20.Tom Gjelten, In Cyberwar, Software Flaws are a Hot Commodity, NPR (Feb. 12, 2013, 3:25 AM), https://www.npr.org/2013/02/12/171737191/in-cyberwar-software-flaws-are-a-ho‌t-commodity#:~:text=In%20the%20context%20of%20escalating,inside%20his%20‌ene‌my%‌27s%20computer%20network [https://perma.cc/JT9J-NZSL].Show More

Currently, there is a private market for weeding cybersecurity vulnerabilities out of companies’ systems. Some cyber specialists, often dubbed “white hat hackers,” search company systems and equipment for vulnerabilities and report their findings to the company, sometimes for a small reward.21 21.Chris Teague, White Hat Hacker Cracked Toyota’s Supplier Portal, Autoblog (Feb. 8, 2023, 9:35 AM), https://www.autoblog.com/2023/02/08/white-hat-hacker-toyota-supplier-po‌rtal/ [https://perma.cc/B8V2-7NPE].Show More More proactive companies hire hacking specialists to find weak spots in their systems so they can address these issues before they are exploited.22 22.David Rudin, Safety Net: Hackers for Hire Help Companies Find Their Weak Spots, Fin. Post (Mar. 3, 2023), https://financialpost.com/cybersecurity/hackers-help-companies-find-we‌ak-spots [https://perma.cc/HPV2-H3D9].Show More

But the private market goes both ways: just as some hackers choose to sell their findings back to the company whose system is at risk, others choose to sell the information to competitor companies, foreign governments, or other interested parties.23 23.Andi Wilson, Ross Schulman, Kevin Bankston & Trey Herr, New Am., Cybersecurity Initiative, Open Tech. Inst., Bugs in the System: A Primer on the Software Vulnerability Ecosystem and Its Policy Implications 15–18 (2016), https://www.newamerica.org/oti/policy-papers/bugs-system/ [https://perma.cc/53AM-DYRN].Show More And for good reason—the price on the black market for vulnerabilities is often ten to one hundred times higher than on the white market.24 24.Lillian Ablon, Martin C. Libicki & Andrea A. Golay, Markets for Cybercrime Tools and Stolen Data: Hacker’s Bazaar 26 (2014).Show More As the black market for vulnerabilities grows, companies’ proprietary information is put increasingly at risk.

Unfortunately, due to the lack of regulation of this market, there has been little stopping the growth in corporate espionage. Existing suggestions in academic literature for tackling the global trade in zero-day vulnerabilities include criminalization,25 25.Mailyn Fidler, Regulating the Zero-Day Vulnerability Trade: A Preliminary Analysis, 11 I/S: J.L. & Pol’y for Info. Soc’y 405, 424 (2015).Show More regulation through export controls,26 26.Id. at 432.Show More and “increasing the payouts offered on the white market through a combination of liability protections, tax benefits, and subsidies.”27 27.Nathan Alexander Sales, Privatizing Cybersecurity, 65 UCLA L. Rev. 620, 620 (2018).Show More This Essay offers a simple alternative—or supplement—to these options: protecting cyber vulnerabilities through trade secret law.

By correctly applying trade secret law to zero-day vulnerabilities, companies will be afforded many options to protect their cybersecurity weaknesses from falling into the hands of their competitors or the public. A company whose system has been poked and prodded for vulnerabilities could bring trade secret claims under the applicable law, which could award them not only damages but also an injunction to prevent disclosure or use of the weakness. Federal trade secret law also allows for courts to issue warrants for property seizure, which could prevent the offending individual or organization not only from disseminating the vulnerability but also from conducting further operations.28 28.18 U.S.C. § 1836(b)(2)(A)(i).Show More Under the Economic Espionage Act or Computer Fraud and Abuse Act, an offending hacker—or competitor who knowingly uses stolen information—could be held criminally liable.29 29.Id. §§ 1832, 1030(a), (c).Show More Trade secret law provides companies with many powerful tools for combatting the growing vulnerability black market. By treating vulnerabilities as trade secrets, the legal system will provide companies with far more protections for their systems’ weaknesses than currently exist. This, in turn, will help protect their underlying research and data.

One case has contemplated the application of cybercrime law to system vulnerabilities. In 2008, three undergraduate students at the Massachusetts Institute of Technology (“MIT”) planned to present research at a cybersecurity conference that exposed “weaknesses in common subway fare collection systems,” particularly the Massachusetts Bay Transportation Authority (“MBTA”).30 30.Complaint at 1, 7, Mass. Bay Transp. Auth. v. Anderson, No. 08-cv-11364 (D. Mass. Aug. 8, 2008).Show More Their demonstration promised to “present several attacks to completely break the CharlieCard” (the MBTA’s subway card), “release several open source tools [they] wrote to perform these attacks,” and reveal “how [they] broke these systems.”31 31.Id. at 7.Show More

Ironically, the students’ presentation included a slide with the text: “What this talk is not: evidence in court (hopefully).”32 32.Complaint, Exhibit 7 at 3, Mass. Bay Transp. Auth., No. 08-cv-11364 (emphasis added).Show More But before they could give their presentation, the MBTA sued, alleging the students’ research violated the Computer Fraud and Abuse Act (“CFAA”).33 33.Complaint, supra note 30, at 12.Show More Though the MBTA was initially granted a temporary restraining order, the U.S. District Court for the District of Massachusetts later denied the MBTA’s request for a preliminary injunction and dissolved the restraining order, finding that discussing the system’s vulnerabilities was likely not the sort of “transmission” covered by the CFAA.34 34.Transcript of Motion Hearing at 60, 65, Mass. Bay Transp. Auth., No. 08-cv-11364(D. Mass. Aug. 19, 2008).Show More

But the District of Massachusetts’s ruling is not the end-all-be-all for legal protection of vulnerabilities. The MBTA brought suit under the Computer Fraud and Abuse Act, not the Uniform Trade Secrets Act, as Massachusetts had yet to adopt the UTSA.35 35.Complaint, supra note 30, at 12.Show More Nearly a decade later, the Massachusetts legislature passed the Massachusetts Uniform Trade Secrets Act, bringing it up to speed with forty-eight other states.36 36.Aaron Nicodemus, Massachusetts Adopts Uniform Trade Secret Law, Bloomberg L. (Aug. 16, 2018, 5:29 PM), https://news.bloomberglaw.com/ip-law/massachusetts-adopts-unif‌orm-trade-secrets-law [https://perma.cc/FYS3-QAG4]. New York has not adopted the Uniform Trade Secrets Act and instead still relies on common law tort claims. Though North Carolina has not adopted the UTSA, it is counted as one of the forty-nine because its state trade secrets law is very similar to the UTSA. See Christopher T. Zirpoli, Cong. Rsch. Serv., IF12315, An Introduction to Trade Secrets Law in the United States (2023).Show More

Under the UTSA, the court’s decision to dissolve the temporary restraining order and deny preliminary injunctive relief could have come out very differently. A vulnerability or weakness in a company’s cybersecurity could qualify as a trade secret under the UTSA. Not only will recognizing vulnerabilities as trade secrets protect against innocent disclosures of proprietary information, as in the MBTA case, but it will also help reduce the growing threat of cyber espionage and weaken the market for vulnerabilities.

Part I of this Essay explains why vulnerabilities ought to qualify for trade secret protections under the definition of a trade secret in the Uniform Trade Secrets Act. Part II makes a normative argument for including vulnerabilities in trade secret protection. The Essay concludes by briefly revisiting the MBTA case to show how affording vulnerabilities protection under the UTSA would prevent future harms to the MBTA.

  1.  Fed. Bureau of Investigation, Executive Summary—China: The Risk to Corporate America (2019), https://www.fbi.gov/file-repository/china-exec-summary-risk-to-corporate-america-2019.pdf/view [https://perma.cc/93BF-FGZR]. ↑

  2.  See, e.g., Nicole Sganga, Chinese Hackers Took Trillions in Intellectual Property from About 30 Multinational Companies, CBS News (May 4, 2022, 12:01 AM), https://www.cbs‌news.com/news/chinese-hackers-took-trillions-in-intellectual-property-‌from-about-30-multi‌national-companies/ [https://perma.cc/WT93-T5HL] (noting that “[t]he CCP continues to increase its theft of U.S. technology and intellectual property” via hacking operations). ↑

  3.  Tim Maurer & Arthur Nelson, The Global Cyber Threat, Fin. & Dev. 24, 25 (Mar. 2021), https://www.imf.org/en/Publications/fandd/issues/2021/03/global-cyber-threat-to-financial-systems-maurer [https://perma.cc/6DN4-3YQR]. ↑
  4.  See, e.g., Phil Mercer, China Accused of Economic Espionage on an Unprecedented Scale, VOA News: East Asia (Oct. 18, 2023, 2:39 AM), https://www.voanews.com/a/china-accused-of-economic-espionage-on-an-unprecedented-scale/7315625.html [https://perma.cc/5ZPY-K‌4EV]. ↑
  5.  Corporate Espionage Is Entering a New Era, Economist (May 30, 2022), https://www.‌economist.com/business/2022/05/30/corporate-espionage-is-entering-a-new-era [https://perm‌a.cc/8NJ3-S4T8]. ↑
  6.  Id. ↑
  7.  Id. ↑
  8.  Steve Morgan, Global Cybercrime Damages Predicted to Reach $6 Trillion Annually by 2021, Cybercrime Mag. (Oct. 26, 2020), https://cybersecurityventures.com/annual-cyber‌crime-report-2020/ [https://perma.cc/JG3C-Q8WL]. ↑
  9.  See E. I. duPont deNemours & Co. v. Christopher, 431 F.2d 1012, 1013 (5th Cir. 1970). ↑
  10.  Eamon Javers, Inside China’s Spy War on American Corporations, CNBC (June 21, 2023, 9:10 PM), https://www.cnbc.com/2023/06/21/inside-chinas-spy-war-on-american-corporatio‌ns.html [https://perma.cc/LXB2-3MCU]. ↑
  11.  See, e.g., United States v. Genovese, 409 F. Supp. 2d 253, 255 (S.D.N.Y. 2005) (describing defendant’s charges for attempting to resell Microsoft source code on his personal website). ↑
  12.  Corporate Espionage Is Entering a New Era, supra note 5. ↑
  13.  President William J. Clinton, Statement on Signing the Economic Espionage Act of 1996, 32 Weekly Comp. Pres. Doc. 2040 (Oct. 11, 1996), reprinted in 1996 U.S.C.C.A.N. 4034. ↑
  14.  18 U.S.C. § 1030(a)(1). ↑
  15.  Trade Secrets Act Enactment Map, Unif. L. Comm’n, https://www.uniformlaws.org/‌committees/community-home?CommunityKey=3a2538fb-e030-4e2d-a9e2-90373dc05792 [https://perma.cc/ML7V-BSCT] (last visited Feb. 26, 2024). ↑
  16.  Defend Trade Secrets Act, Pub. L. No. 114-153, 130 Stat. 376 (2016). ↑
  17.  Matt Kapko, Global Cybersecurity Spending to Top $219B This Year: IDC, Cybersecurity Dive (Mar. 17, 2023), https://www.cybersecuritydive.com/news/cybersecurity-spending-increase-idc/645338/ [https://perma.cc/6TV9-D7QT]. ↑
  18.  Jay Pil Choi, Chaim Fershtman & Neil Gandal, Network Security: Vulnerabilities and Disclosure Policy, 58 J. Indus. Econ. 868, 869 (2010). ↑
  19.  See, e.g., Kate O’Flaherty, Notorious Hacking Forum and Black Market Darkode is Back Online, Forbes (Apr. 10, 2019, 12:06 PM), https://www.forbes.com/sites/kateoflahertyuk/20‌19/04/10/notorious-hacking-forum-darkode-is-back-online/ [https://perma.cc/‌LX4Y-HY8J] (discussing a site on the black market which “serves as a venue for the sale & trade of hacking services, botnets, malware, and illicit goods and services”). ↑
  20.  Tom Gjelten, In Cyberwar, Software Flaws are a Hot Commodity, NPR (Feb. 12, 2013, 3:25 AM), https://www.npr.org/2013/02/12/171737191/in-cyberwar-software-flaws-are-a-ho‌t-commodity#:~:text=In%20the%20context%20of%20escalating,inside%20his%20‌ene‌my%‌27s%20computer%20network [https://perma.cc/JT9J-NZSL]. ↑
  21.  Chris Teague, White Hat Hacker Cracked Toyota’s Supplier Portal, Autoblog (Feb. 8, 2023, 9:35 AM), https://www.autoblog.com/2023/02/08/white-hat-hacker-toyota-supplier-po‌rtal/ [https://perma.cc/B8V2-7NPE]. ↑
  22.  David Rudin, Safety Net: Hackers for Hire Help Companies Find Their Weak Spots, Fin. Post (Mar. 3, 2023), https://financialpost.com/cybersecurity/hackers-help-companies-find-we‌ak-spots [https://perma.cc/HPV2-H3D9]. ↑
  23.  Andi Wilson, Ross Schulman, Kevin Bankston & Trey Herr, New Am., Cybersecurity Initiative, Open Tech. Inst., Bugs in the System: A Primer on the Software Vulnerability Ecosystem and Its Policy Implications 15–18 (2016), https://www.newamerica.org/oti/policy-papers/bugs-system/ [https://perma.cc/53AM-DYRN]. ↑
  24.  Lillian Ablon, Martin C. Libicki & Andrea A. Golay, Markets for Cybercrime Tools and Stolen Data: Hacker’s Bazaar 26 (2014). ↑
  25.  Mailyn Fidler, Regulating the Zero-Day Vulnerability Trade: A Preliminary Analysis, 11 I/S: J.L. & Pol’y for Info. Soc’y 405, 424 (2015). ↑
  26.  Id. at 432. ↑
  27.  Nathan Alexander Sales, Privatizing Cybersecurity, 65 UCLA L. Rev. 620, 620 (2018). ↑
  28.  18 U.S.C. § 1836(b)(2)(A)(i). ↑
  29.  Id. §§ 1832, 1030(a), (c). ↑
  30.  Complaint at 1, 7, Mass. Bay Transp. Auth. v. Anderson, No. 08-cv-11364 (D. Mass. Aug. 8, 2008). ↑
  31.  Id. at 7. ↑
  32.  Complaint, Exhibit 7 at 3, Mass. Bay Transp. Auth., No. 08-cv-11364 (emphasis added). ↑
  33.  Complaint, supra note 30, at 12. ↑
  34.  Transcript of Motion Hearing at 60, 65, Mass. Bay Transp. Auth., No. 08-cv-11364 (D. Mass. Aug. 19, 2008). ↑
  35.  Complaint, supra note 30, at 12. ↑

  36.  Aaron Nicodemus, Massachusetts Adopts Uniform Trade Secret Law, Bloomberg L. (Aug. 16, 2018, 5:29 PM), https://news.bloomberglaw.com/ip-law/massachusetts-adopts-unif‌orm-trade-secrets-law [https://perma.cc/FYS3-QAG4]. New York has not adopted the Uniform Trade Secrets Act and instead still relies on common law tort claims. Though North Carolina has not adopted the UTSA, it is counted as one of the forty-nine because its state trade secrets law is very similar to the UTSA. See Christopher T. Zirpoli, Cong. Rsch. Serv., IF12315, An Introduction to Trade Secrets Law in the United States (2023). ↑

One Year Post-Bruen: An Empirical Assessment

In the year after New York State Rifle & Pistol Association v. Bruen, a steady stream of highly publicized opinions struck down a wide range of previously upheld gun restrictions. Courts declared unconstitutional policies ranging from assault weapon bans to domestic abuser prohibitions to various limits on publicly carrying handguns. Those opinions can frequently be paired with others reaching the opposite conclusion. The extent to which Bruen shook up the Second Amendment landscape and has caused widespread confusion in the courts is starting to come into focus.

This Essay measures Bruen’s aftereffects by statistically analyzing a year’s worth of Second Amendment opinions. We coded more than 450 challenges for dozens of variables including both case and judge characteristics, resulting in a comprehensive post-Bruen Second Amendment dataset. The findings of our analysis provide an objective basis for assessing the upheaval wrought by Bruen and highlight both unanswered questions and immense challenges for Second Amendment doctrine in the coming years.

Introduction

In District of Columbia v. Heller, the Supreme Court announced that the Second Amendment protects an individual right to keep and bear arms for private purposes like self-defense, while emphasizing that the right—like all constitutional rights—is subject to various forms of regulation.1 1.554 U.S. 570 (2008).Show More The Court did not announce any overarching test for evaluating the constitutionality of gun laws but invited such doctrinal development in the lower courts. Thereafter, in well over 1,000 opinions, doctrine took shape and seemed to solidify, with judges achieving near-uniformity regarding both methodology2 2.See N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2125 (2022) (“[T]he Courts of Appeals have coalesced around a ‘two-step’ framework for analyzing Second Amendment challenges that combines history with means-end scrutiny.”); id. at 2174 (Breyer, J., dissenting) (“[E]very Court of Appeals to have addressed the question has agreed on a two-step framework for evaluating whether a firearm regulation is consistent with the Second Amendment.”).Show More and outcomes.3 3.Eric Ruben & Joseph Blocher, From Theory to Doctrine: An Empirical Analysis of the Right to Keep and Bear Arms After Heller, 67 Duke L.J. 1433 (2018) [hereinafter Ruben & Blocher, From Theory to Doctrine] (empirically analyzing post-Heller Second Amendment case law).Show More But in New York State Rifle & Pistol Association v. Bruen, the Supreme Court declared that the consensus doctrine was wrongheaded,4 4.Bruen, 142 S. Ct. at 2127 (“Despite the popularity of this two-step approach, it is one step too many.”).Show More announcing a novel and heavily originalist approach to evaluating modern gun laws. Bruen gave the Second Amendment a second wind, and thus set up a remarkable “natural experiment”: How does a dramatic methodological overhaul affect constitutional litigation and success rates?

Legal scholarship after Bruen has focused primarily on analyzing the Supreme Court’s historical-analogical test. Bruen cast aside a conventional methodological approach that combined textual and historical analysis with consideration of contemporary costs and benefits, instead announcing that Second Amendment decisions should be based solely on textual and historical analyses.5 5.Id. (“[H]ellerand McDonald do not support applying means-end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”).Show More Particularly, the Supreme Court indicated that the government must point to analogous regulations from the era of the Second Amendment’s enactment in 1791, or from the era of the Fourteenth Amendment’s enactment in 1868, to justify the constitutionality of modern-day gun regulations.6 6.Id. at 2131–34. Justice Amy Coney Barrett wrote a concurring opinion to emphasize that the majority did not resolve the proper temporal focus for Bruen’s historical-analogical test. Id. at 2162–63 (Barrett, J., concurring). Lower court judges have diverged on this point. CompareNat’l Rifle Ass’n v. Bondi, 61 F.4th 1317, 1322 (11th Cir.), reh’g en banc granted, opinion vacated, 72 F.4th 1346 (11th Cir. 2023) (“[H]istorical sources from the Reconstruction Era are more probative of the Second Amendment’s scope than those from the Founding Era.”), with United States v. Price, 635 F. Supp. 3d 455, 460 (S.D.W. Va. 2022) (“[The Second Amendment] analysis is constrained by the Supreme Court’s definition of ‘historical tradition’ as the time of the founding and ratification of the Second Amendment in 1791.”).Show More Scholarship has compared Bruen’s “originalism-by-analogy” with existing originalist approaches,7 7.See, e.g., Joseph Blocher & Eric Ruben, Originalism-by-Analogy and Second Amendment Adjudication, 133 Yale L.J. 99, 102–03 (2023) [hereinafter Blocher & Ruben, Originalism-by-Analogy] (describing debate).Show More assessed Bruen’s departure from other constitutional rights doctrines,8 8.See, e.g., Timothy Zick, Second Amendment Exceptionalism: Public Expression and Public Carry, 102 Tex. L. Rev. 65, 67 (2023) (rejecting Supreme Court’s claim that Bruen’s approach comports with First Amendment free-speech doctrine).Show More critiqued Bruen’s test as underspecified,9 9.See, e.g., Jacob D. Charles, The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History, 73 Duke L.J. 67, 76 (2023).Show More and taken issue with Bruen’s reading of the historical record.10 10.See, e.g., Andrew Willinger, The Territories Under Text, History, and Tradition, 101 Wash. U. L. Rev. 1, 20 (2023); Patrick J. Charles, The Fugazi Second Amendment: Bruen’s Text, History, and Tradition Problem and How to Fix It, 71 Clev. St. L. Rev. 623, 692 (2023); Saul Cornell, Cherry-Picked History and Ideology-Driven Outcomes: Bruen’s Originalist Distortions, SCOTUSblog (Jun. 27, 2022, 5:05 PM), https://www.scotusblog.com/‌2022/‌06/cherry-picked-history-and-ideology-driven-outcomes-bruens-originalist-distortions [https://perma.cc/HN2Q-H64F].Show More

But Bruen also offers a unique opportunity for empirical legal analysis. Within days of Bruen, on Westlaw, red flags accompanied nearly every post-Heller Second Amendment case, a warning that those decisions were no longer good law.11 11.See Blocher & Ruben, Originalism-by-Analogy, supra note 7, at 114 n.80.Show More And litigants ranging from individual gun owners to criminal defendants to gun rights advocacy groups heeded that signal, bringing challenge after challenge, leading to 326 Second Amendment opinions ruling on 464 claims in the span of one year. Bruen effectively restarted the Second Amendment litigation clock, and the resulting opinions make up a discrete data source.

This Essay analyzes that data to take an initial measurement of the post-Bruen world.12 12.We join one other published empirical analysis conducted after Bruen. See Charles, supra note 9. Our results corroborate Charles’s excellent qualitative analysis and build on it by including state opinions, additional variables including attitudinal variables, and more advanced statistical analysis. As with any comparison of empirical studies, it is important to keep in mind methodological differences. One worth mentioning because it affects our overall claim count is that we separated claims more granularly, for example, by separately counting each challenge to different sensitive places within a single opinion. Cf. id. at 124 n.346 (grouping claims by topic rather than separating out each individual provision).Show More Doing so at this early stage has a key benefit of capturing judicial work from first principles. Many empirical legal analyses focus solely on appellate cases.13 13.See, e.g., Adam M. Samaha & Roy Germano, Is the Second Amendment a Second-Class Right?, 68 Duke L.J. Online 57, 59 (2018).Show More But we see value in providing a snapshot of the first judicial attempts to implement Bruen, before appellate precedent builds up and stare decisis crowds out the sort of historical-analogical reasoning Bruen mandates.14 14.As Justice Benjamin Cardozo put it, precedent “fix[es] the point of departure from which the labor of the judge begins.” Benjamin N. Cardozo, The Nature of the Judicial Process 20 (1921); see also Amy Coney Barrett & John Copeland Nagle, Congressional Originalism, 19 U. Pa. J. Const. L. 1, 1 (2016) (“Precedent poses a notoriously difficult problem for originalists.”).Show More Bruen places novel and, in many ways, extraordinary demands on trial courts, including the evaluation of centuries of historical evidence. Now is a good time to take stock of the consequences of announcing such a new Second Amendment test by assessing the relationship between case characteristics, judge characteristics, and success rates, and then comparing our findings with pre-Bruen statistics.

Of course, empirical legal analysis has well-known limitations and cannot answer all questions about evolving Second Amendment doctrine. Setting outcomes as the dependent variable and omitting deeper consideration of the reasoning judges provide for those outcomes omits a key aspect of the judicial process.15 15.See H. Jefferson Powell, A Response to Professor Knight, Are Empiricists Asking the Right Questions About Judicial Decisionmaking?, 58 Duke L.J. 1725, 1727 (2009) (observing the importance of considering “[t]he form and content of the judicial opinion” in addition to outcomes).Show More Moreover, codable proxies for multitudinous concepts such as using the party of nominating president for ideology16 16.See generally Adam Bonica & Maya Sen, Estimating Judicial Ideology, 35 J. Econ. Persps. 97 (2021) (assessing strengths and drawbacks of different measures of judicial ideology).Show More or using a binary “relief granted at least in part” for “success” overlook finer distinctions. And, of course, stopping our data collection at the one-year mark after Bruen necessarily omits developments after that cut-off point. Similar drawbacks inhere in all legal empirical projects, and ours should be qualified accordingly.

We nonetheless believe empirical legal studies are valuable for raising questions about constitutional litigation, and Second Amendment litigation in particular, even if they do not always point to obvious answers. They can “help[] inform litigants, policymakers, and society as a whole about how the legal system works.”17 17.Theodore Eisenberg, Why Do Empirical Legal Scholarship?, 41 San Diego L. Rev. 1741, 1741 (2004).Show More And this is especially so in the Second Amendment context in light of Bruen’s extraordinary doctrinal upheaval and the pending Second Amendment case before the Supreme Court, United States v. Rahimi.18 18.United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023), cert. granted, 143 S. Ct. 2688 (2023) (No. 22-915).Show More An express rationale in Bruen for prescribing a new test of historical analogy was to make the doctrine “more administrable” than conventional means-ends scrutiny.19 19.N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2130 (2022).Show More The majority dismissed as “unpersua[sive]” the dissent’s complaint that historical analogy would be difficult to apply by lower court judges, who would, at worst, rely on their policy preferences to make decisions.20 20.Id. at 2130 n.6; id. at 2179–80 (Breyer, J., dissenting).Show More Analyzing post-Bruen outcomes in similar cases is one way to test whether the early returns support the Bruen majority’s rejection of the dissent’s concerns.

And, indeed, our analysis demonstrates Bruen’s seismic impact. The pace of litigation after the opinion has far surpassed the tremendous pace of litigation after Heller.21 21.See infra Section II.A.Show More And litigants have good reason for alacrity: the success rate of Second Amendment claims also far surpasses the post-Heller success rate.22 22.See infra Section II.B.Show More But readily apparent fault lines, and widespread inconsistencies, have also emerged.23 23.See infra Section II.C.Show More Judicial ideology is one explanation for discrepancies, as a statistically significant gap exists between the rate that Republican- and Democratic-nominated judges grant Second Amendment relief.24 24.See infra Section II.D.Show More Other factors, such as the type of law being challenged, also matter, with challenges to sensitive place restrictions having a particularly high likelihood of success.25 25.See infra Part III.Show More Still, our findings suggest that Bruen has not meaningfully constrained judges—indeed, judicial ideology is predictive of outcomes after Bruen, even when taking into account other case characteristics.

This Essay proceeds in three Parts. Part I describes our methodology. Part II presents our data and offers a descriptive analysis. Part III reports the results of our regression analysis.

  1.  554 U.S. 570 (2008). ↑
  2.  See N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2125 (2022) (“[T]he Courts of Appeals have coalesced around a ‘two-step’ framework for analyzing Second Amendment challenges that combines history with means-end scrutiny.”); id. at 2174 (Breyer, J., dissenting) (“[E]very Court of Appeals to have addressed the question has agreed on a two-step framework for evaluating whether a firearm regulation is consistent with the Second Amendment.”). ↑
  3.  Eric Ruben & Joseph Blocher, From Theory to Doctrine: An Empirical Analysis of the Right to Keep and Bear Arms After Heller, 67 Duke L.J. 1433 (2018) [hereinafter Ruben & Blocher, From Theory to Doctrine] (empirically analyzing post-Heller Second Amendment case law). ↑
  4.  Bruen, 142 S. Ct. at 2127 (“Despite the popularity of this two-step approach, it is one step too many.”). ↑
  5.  Id. (“[H]eller and McDonald do not support applying means-end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”). ↑
  6.  Id. at 2131–34. Justice Amy Coney Barrett wrote a concurring opinion to emphasize that the majority did not resolve the proper temporal focus for Bruen’s historical-analogical test. Id. at 2162–63 (Barrett, J., concurring). Lower court judges have diverged on this point. Compare Nat’l Rifle Ass’n v. Bondi, 61 F.4th 1317, 1322 (11th Cir.), reh’g en banc granted, opinion vacated, 72 F.4th 1346 (11th Cir. 2023) (“[H]istorical sources from the Reconstruction Era are more probative of the Second Amendment’s scope than those from the Founding Era.”), with United States v. Price, 635 F. Supp. 3d 455, 460 (S.D.W. Va. 2022) (“[The Second Amendment] analysis is constrained by the Supreme Court’s definition of ‘historical tradition’ as the time of the founding and ratification of the Second Amendment in 1791.”). ↑
  7.  See, e.g., Joseph Blocher & Eric Ruben, Originalism-by-Analogy and Second Amendment Adjudication, 133 Yale L.J. 99, 102–03 (2023) [hereinafter Blocher & Ruben, Originalism-by-Analogy] (describing debate). ↑
  8.  See, e.g., Timothy Zick, Second Amendment Exceptionalism: Public Expression and Public Carry, 102 Tex. L. Rev. 65, 67 (2023) (rejecting Supreme Court’s claim that Bruen’s approach comports with First Amendment free-speech doctrine). ↑
  9.  See, e.g., Jacob D. Charles, The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History, 73 Duke L.J. 67, 76 (2023). ↑
  10.  See, e.g., Andrew Willinger, The Territories Under Text, History, and Tradition, 101 Wash. U. L. Rev. 1, 20 (2023); Patrick J. Charles, The Fugazi Second Amendment: Bruen’s Text, History, and Tradition Problem and How to Fix It, 71 Clev. St. L. Rev. 623, 692 (2023); Saul Cornell, Cherry-Picked History and Ideology-Driven Outcomes: Bruen’s Originalist Distortions, SCOTUSblog (Jun. 27, 2022, 5:05 PM), https://www.scotusblog.com/‌2022/‌06/cherry-picked-history-and-ideology-driven-outcomes-bruens-originalist-distortions [https://perma.cc/HN2Q-H64F]. ↑
  11.  See Blocher & Ruben, Originalism-by-Analogy, supra note 7, at 114 n.80. ↑
  12.  We join one other published empirical analysis conducted after Bruen. See Charles, supra note 9. Our results corroborate Charles’s excellent qualitative analysis and build on it by including state opinions, additional variables including attitudinal variables, and more advanced statistical analysis. As with any comparison of empirical studies, it is important to keep in mind methodological differences. One worth mentioning because it affects our overall claim count is that we separated claims more granularly, for example, by separately counting each challenge to different sensitive places within a single opinion. Cf. id. at 124 n.346 (grouping claims by topic rather than separating out each individual provision). ↑
  13.  See, e.g., Adam M. Samaha & Roy Germano, Is the Second Amendment a Second-Class Right?, 68 Duke L.J. Online 57, 59 (2018). ↑
  14.  As Justice Benjamin Cardozo put it, precedent “fix[es] the point of departure from which the labor of the judge begins.” Benjamin N. Cardozo, The Nature of the Judicial Process 20 (1921); see also Amy Coney Barrett & John Copeland Nagle, Congressional Originalism, 19 U. Pa. J. Const. L. 1, 1 (2016) (“Precedent poses a notoriously difficult problem for originalists.”). ↑
  15.  See H. Jefferson Powell, A Response to Professor Knight, Are Empiricists Asking the Right Questions About Judicial Decisionmaking?, 58 Duke L.J. 1725, 1727 (2009) (observing the importance of considering “[t]he form and content of the judicial opinion” in addition to outcomes). ↑
  16.  See generally Adam Bonica & Maya Sen, Estimating Judicial Ideology, 35 J. Econ. Persps. 97 (2021) (assessing strengths and drawbacks of different measures of judicial ideology). ↑
  17.  Theodore Eisenberg, Why Do Empirical Legal Scholarship?, 41 San Diego L. Rev. 1741, 1741 (2004). ↑
  18.  United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023), cert. granted, 143 S. Ct. 2688 (2023) (No. 22-915). ↑
  19.  N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2130 (2022). ↑
  20.  Id. at 2130 n.6; id. at 2179–80 (Breyer, J., dissenting). ↑
  21.  See infra Section II.A. ↑
  22.  See infra Section II.B. ↑
  23.  See infra Section II.C. ↑
  24.  See infra Section II.D. ↑

  25.  See infra Part III. ↑

Editing Classic Books: A Threat to the Public Domain?

Over the past few years, there has been a growing trend in the publishing industry of hiring sensitivity readers to review books for offensive tropes or racial, gender, or sexual stereotypes. In February 2023, for instance, reports that Puffin Books had edited several classics by Roald Dahl—in consultation with sensitivity readers—generated immediate backlash from the public and several renowned authors and politicians. While most of that backlash focused on accusations of “censorship” and “cancel culture,” this Essay examines an actual legal consequence of revising classic books: the creation of copyrightable derivative works in updated editions. Derivative works are new works based on or built off of preexisting works. The creator of a derivative work can obtain copyright protection by adding sufficient original expression to the preexisting work. The creation of derivative works, especially from public domain works, is generally encouraged because derivative works can foster creativity, disseminate culture and knowledge, and allow original works to reach new audiences. However, this right can also be misused and misapplied. Specifically, while copyright in derivative works only extends to the new materials added to an underlying work, there are instances where overreaching copyright claims and ambiguous lines between the original work and the derivative work can have the practical effect of extending exclusive rights in the original underlying works. This Essay examines instances where editors have claimed copyright in new illustrations or new editions of classic books. More specifically, it considers the potential creation of copyrightable derivative works when editors revise and publish new editions that remove cultural, ethnic, and gender stereotypes. It argues that copyright law must strike a balance to ensure that follow-on creativity is encouraged and editors are rewarded for updating classic books to suit a modern readership, but it must also guard against the inadvertent consequence of diminishing the public domain of classic books.

Introduction

Some called it “absurd censorship.”1 1.Salman Rushdie (@SalmanRushdie), Twitter (Feb. 18, 2023, 5:41 PM), https://twitter.‌com/‌SalmanRushdie/status/1627075835525210113 [https://perma.cc/28DV-U‌NWF].Show More Others labeled it “corporate safetyism.”2 2.Helen Lewis, Roald Dahl Can Never Be Made Nice, Atlantic (Feb. 21, 2023), https://www.theatlantic.com/ideas/archive/2023/02/without-nastiness-roald-dahl-isnt-roald-dahl/673141/ [https://perma.cc/73B5-NEXP].Show More It was criticized as “cultural vandalism,”3 3.Brendan O’Neill, The Rewriting of Roald Dahl Is an Act of Cultural Vandalism, Spectator (Feb. 19, 2023, 10:57 AM), https://www.spectator.co.uk/article/the-rewriting-of-roald-dahl-is‌-an-act-of-cultural-vandalism/ [https://perma.cc/SAG9-USZ4].Show More “the woke’s ‘war’ against culture,”4 4.Sky News Austl., ‘Vandalism’: Roald Dahl the ‘Latest Victim’ of the Woke’s ‘War’ Against Culture, YouTube (Feb. 20, 2023), https://www.youtube.com/watch?v=K7crI‌cZ‌3qM [https://perma.cc/6VKJ-VMNU].Show More and “gobblefunk[ing] around with words.”5 5.William James, UK PM Sunak Condemns ‘Gobblefunk’ Changes to Roald Dahl’s Books, Reuters (Feb. 20, 2023, 10:25 AM), https://www.reuters.com/lifestyle/uk-pm-sunak-condemn‌s-gobblefunk-changes-roald-dahls-books-2023-02-20/ [https://perma.cc/WNV2-QUGP].Show More In February 2023, news outlets reported 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.”6 6.Derrick Bryson Taylor, Roald Dahl’s Books Are Rewritten to Cut Potentially Offensive Language, N.Y. Times (Feb. 20, 2023), https://www.nytimes.com/2023/02/20/books/roald-dahl-books-changes.html [https://perma.cc/2X6N-8R4X]. See generally Ed Cumming, Abigail Buchanan, Genevieve Holl-Allen & Benedict Smith, Roald Dahl Rewritten: The Hundreds of Changes Made to Suit a New ‘Sensitive’ Generation, Telegraph (Feb. 24, 2023, 4:20 PM), https://www.telegraph.co.uk/news/2023/02/17/‌roald-dahl-books-rewritten-offensi‌v‌e-matilda-witches-twits/#:~:text=By%20comparing%20the%20latest%20editions,‌are%‌2‌0n‌ow%20the%20Cloud%2DPeople [https://perma.cc/C89B-HDG2] (comparing older and newer excerpts from Roald Dahl’s books).Show More With the public’s increasing awareness of racial, gender, and sexual stereotypes in classic books, more publishers appear to be hiring sensitivity readers to review books for offensive tropes and insensitive content. In consultation with sensitivity readers, Puffin Books published new editions of Dahl’s classic books, altering words used to describe characters’ appearances, race, gender, weight, and mental health. These edits included, for instance, removing descriptions of children as “fat,” women as “ugly,” and people as “crazy,” replacing phrases like “you old hag” with “you old crow,” and updating “weird African language” so it was no longer “weird.”7 7.Cumming et al., supra note 6.Show More The public backlash to the news was immediate and attracted criticism from several high-profile public figures, including renowned authors Salman Rushdie and Philip Pullman,8 8.Rushdie, supra note 1; Taylor, supra note 6.Show More filmmaker Wes Anderson,9 9.Christian Holub, Wes Anderson Criticizes Editing of Roald Dahl Books to Remove ‘Offensive’ Language: ‘What’s Done Is Done,’ Ent. Wkly. (Sept. 1, 2023, 1:36 PM), https://ew.com/movies/wes-anderson-criticizes-editing-of-roald-dahl-books-i-dont-even-wan‌t-the-artist-to-modify-their-work/ [https://perma.cc/5QHS-83LX].Show More U.K. Prime Minister Rishi Sunak,10 10.James, supra note 5.Show More U.K. Queen Consort Camilla,11 11.Jane Dalton, Queen Consort Attacks Censorship of Authors as Roald Dahl Row Rages, Independent (Feb. 23, 2023, 5:49 PM), https://www.independent.co.uk/life-style/royal-family/camilla-queen-roald-dahl-censorship-b2288196.html [https://perma.cc/TXN2-MV‌KA].Show More and the CEO of powerful nonprofit organization PEN America.12 12.Armani Syed, Why Rewrites to Roald Dahl’s Books Are Stirring Controversy, Time (Feb. 21, 2023, 1:21 PM), https://time.com/6256980/roald-dahl-censorship-debate/ [https://perma.‌cc/82ST-AF2S].Show More Shortly after the Dahl controversy, certain media outlets reported that Scholastic Corporation had similarly revised R.L. Stine’s popular Goosebumps series, and publishers had hired sensitivity readers to review and suggest updates to classic works by Agatha Christie and Ian Fleming, causing further public criticism.13 13.See, e.g., Lucy Knight, Sensitivity Readers: What Publishing’s Most Polarising Role Is Really About, Guardian (Mar. 15, 2023, 4:00 AM), https://www.theguardian.com/books/‌2023/mar/15/sensitivity-readers-what-publishings-most-polarising-role-is-really-about [https://perma.cc/THS6-VA2T]; Althea Legaspi, Agatha Christie Novels Edited to Remove Racist Language, Rolling Stone (Mar. 27, 2023), https://www.rollingstone.com/culture/‌culture-news/agatha-christie-novels-edited-remove-racist-language-1234704199/ [https://perma.cc/54GT-JE2T].Show More In spite of the significant media coverage and public discussion of those announcements, little attention has been paid to any actual legal controversy of revising classic books.

This Essay focuses on one possible legal consequence of revising classic books: the creation of copyrighted “derivative works” in updated editions of classics. Derivative works are new works based on or built off of preexisting works. The creator of a derivative work can obtain a copyright to the original expression that they add to the preexisting work. The creation of derivative works, especially from public domain works, is generally encouraged because they can foster creation, disseminate culture and knowledge, and allow original works to reach new audiences.14 14.The Public Domain and New Derivative Works, Authors All. (Jan. 12, 2021), https://www.authorsalliance.org/2021/01/12/the-public-domain-and-new-derivative-works/. [https://perma.cc/MNF9-ZAX3].Show More However, in certain circumstances, this right can have the practical effect of extending exclusive rights in original underlying works. Even though copyright in derivative works only extends to the new materials added to an underlying work, the difference between the original work and the derivative work is not always clear. Additionally, overreaching copyright claims and copyright assertions to trivial edits to classic books can threaten the public domain of classic books and disrupt the copyright bargain between creators and the public.

This Essay examines the potential creation of derivative works when editors revise and publish new editions of classic books to remove cultural, ethnic, and gender stereotypes, and how granting copyright to those new editions of classic books can incentivize the creation of socially valuable edits but also threaten the public domain of classic books. It proceeds as follows: Part I briefly highlights the many updates to classic books, especially children’s books, over the past decades. This history shows that revising classic books to update offensive terms or remove stereotypes is not a new practice. Part II explains the legal right that allows authors, copyright owners, and publishers to revise classic books, and provides some of the arguments for and against revising classic books. Part III describes how new editions of classic books could be considered copyrightable derivative works and provides examples of editors claiming copyright in their updated editions of classic books. Finally, Part IV examines some of the overreaching practices of editors claiming copyright in updated books to the detriment of the public domain.

I. A Brief History of Revising Classic Books

Editing books is not a new practice. Sometimes classic books are edited for accuracy and relevance, other times to decrease page numbers, and often to remove outdated or offensive racial stereotypes to make books more palatable to modern readers. Authors have often updated their own books. In 1974, ten years after Roald Dahl first published Charlie and the Chocolate Factory, he changed the Oompa Loompas from pygmies that Willy Wonka shipped from “the very deepest and darkest part of the African jungle where no white man had ever been before” to white people from Loompaland with long hair and rosy cheeks.15 15.Livia Gershon, Roald Dahl’s Anti-Black Racism, JSTOR Daily (Dec. 10, 2020), https://daily.jstor.org/roald-dahls-anti-black-racism/ [https://perma.cc/AU7X-87PL].Show More In 1978, Theodore Seuss Geisel, more commonly known as “Dr. Seuss,” removed the bright yellow skin and pigtail from an Asian character in his 1937 book And to Think That I Saw It on Mulberry Street and changed the accompanying text from “[a] Chinaman [w]ho eats with sticks” to “[a] Chinese man [w]ho eats with sticks.”16 16.Taylor Weik, Why Dr. Seuss Got Away with Anti-Asian Racism for So Long, NBC News (Mar. 12, 2021, 2:46 PM), https://www.nbcnews.com/news/asian-america/dr-seuss-got-away-anti-asian-racism-long-rcna381 [https://perma.cc/6KQL-8ZFV]; Katie Ishizuka & Ramón Stephens, The Cat Is Out of the Bag: Orientalism, Anti-Blackness, and White Supremacy in Dr. Seuss’s Children’s Books, 1 Rsch. on Diversity Youth Literature, Feb. 2019, at 1, 15, https://sophia.stkate.edu/cgi/viewcontent.cgi?article=1050&context=rdyl [https://perma.cc/6KQL-8ZFV].Show More Beginning in 1980, Richard Scarry updated his 1963 Best Word Book Ever to include father-bunny cooking in the kitchen alongside mother-bunny, change gendered terms like “pretty stewardess” to “flight attendant” and “policeman” to “police officer,” add a menorah to a holiday scene, and remove a stereotypical Native American outfit and feather headdress from a mouse in a canoe.17 17.Laura Willard, 8 Changes That Were Made to a Classic Richard Scarry Book to Keep Up with the Times. Progress!, Upworthy (Feb. 17, 2023), https://www.upworthy.com/8-changes-that-were-made-to-a-classic-richard-scarry-book-to-keep-up-with-the-times-progress [https://perma.cc/C82F-KKC7].Show More

There are other instances where authors’ heirs and copyright holders to classic books are faced with difficult decisions about how to keep classic works relevant, up-to-date, and unproblematic. In the afterword of the 1988 edition of his father Hugh Lofting’s 1920 The Story of Doctor Dolittle, Christopher Lofting summed up his challenge with making changes in that new edition.18 18.Christopher Lofting, Afterword toHugh Lofting, The Story of Doctor Dolittle 152–54 (1988).Show More On the one hand, a publisher’s job is to publish, not to censor. And, where classic works are involved, there is a principled argument they should not be tampered with at all. On the other hand, there was never an intent for Dolittle to be offensive, and the potentially offensive content was not an integral or important part of the story. Should Christopher Lofting nonetheless stand on principle, refuse to make changes, disrespect the feelings of others, and nudge the book into obsolescence, to be hidden away from future generations of children? Ultimately, he authorized changes to the book, including rewriting portions of chapters 11 and 12 about Dr. Dolittle’s escape from Prince Bumpo and his family to tone down their racial stereotyping and to remove references to Prince Bumpo’s dream of turning white.19 19.See Selma G. Lanes, Childrens’ Books; Doctor Dolittle, Innocent Again, N.Y. Times, Aug. 28, 1988, at 20, https://www.nytimes.com/1988/08/28/books/childrens-books-doctor-dolittle-innocent-again.html [https://perma.cc/S6QC-4XPV] (noting that “[t]he centenary edition’s new excisions and revisions are far more extensive” than previous edits to the books); Dewey W. Chambers, How Now, Dr. Dolittle?, 45 Elementary Eng., Apr. 1968, at 437, 438.Show More Christopher justified those edits based on his “strong belief that the author himself would have immediately approved of making these alterations.”20 20.Lofting, Afterword to The Story of Doctor Dolittle, supra note 18, at 153.Show More He added that his father “would have been appalled at the suggestion that any part of his work could give offense and would have been the first to have made the changes himself.”21 21.Id.Show More

The first books in the Nancy Drew mystery series were revised beginning in 1959 to remove racial and antisemitic stereotyping, such as the frequent description of criminals as “darker-complexioned and lower class,” and Nancy Drew solving mysteries through blatant racial profiling.22 22.Marjorie Ingall, Nancy Drew and the Case of the Politically Incorrect Children’s Books, Tablet Mag. (Dec. 17, 2013), https://www.tabletmag.com/sections/community/articles/nancy-drew [https://perma.cc/5U7G-SS3C]; Kelly Robinson, Dr Seuss‘Cancelled’? There’s Nothing New About Cutting Racism from Children’s Books, Guardian (Mar. 9, 2021, 12:15 PM), https://www.theguardian.com/books/2021/mar/09/dr-seuss-cancelled-theres-nothing-new-about-cutting-racism-from-childrens-books [https://perma.cc/QMX8-VVQC].Show More The Hardy Boys series faced similar issues with characters being portrayed through racial stereotypes, and was also updated beginning in 1959.23 23.Brandon Tensley, The Knotty Nostalgia of the Hardy Boys Series, Atlantic (Jan. 27, 2019), https://www.theatlantic.com/entertainment/archive/2019/01/reading-hardy-boys-nosta‌lgia-disappointment-racism/581071/ [https://perma.cc/H9Q5-ZQC8].Show More Older books, such as Mark Twain’s 1885 Adventures of Huckleberry Finn and Helen Bannerman’s 1899 The Story of Little Black Sambo, have also been edited, updated and, in the case of Sambo, entirely retold.24 24.See Matthew Fellion & Katherine Inglis, Censored: A Literary History of Subversion and Control 123 (2017); Brandon Murakami & Brianna Anderson, Mgambo, Sam, and the Tigers: Restorying Little Black Sambo Adaptations of the 1990s, Childs. Literature Educ., Feb. 18, 2022, at 1, 2, https://rdcu.be/cZeyP [https://perma.cc/6QRW-CSSB].Show More NewSouth Publishing, for instance, published an expurgated version of Huckleberry Finn in 2011 that changed a racial slur to the word “slave,” removed an offensive word for Native Americans, and changed “half-breed” to “half-blood.”25 25.Fellion & Inglis, supra note 24, at 123.Show More Sambo has gone through re-illustrations such as in the book The Story of Little Babaji, and several re-tellings that “offer[] readers a distinctively African-American hero,”26 26.Murakami & Anderson, supra note 24, at 3.Show More or create an “emancipatory retelling” of the original story.27 27.Id. at 11.Show More

More recently, Puffin Books updated Roald Dahl’s children’s books after employing sensitivity readers to review those books for controversial or offensive content.28 28.Taylor, supra note 6 (explaining that Puffin Books made changes to Roald Dahl’s books following collaboration with an organization that “champions diversity and accessibility in children’s literature”).Show More Scholastic Publishing, copyright holder to R.L. Stine’s Goosebumps book series, has similarly updated Stine’s popular children’s horror books to replace words such as “crazy” with “silly,” or describing a character as “cheerful” instead of “plump”—apparently without Stine’s knowledge.29 29.Raina Raskin, ‘Goosebumps’ Author Accuses Publisher of Unsanctioned Edits to His Beloved Children’s Series, N.Y. Sun (Mar. 8, 2023, 3:20 PM), https://www.nysun.com/‌article/goosebumps-author-accuses-publisher-of-unsanctioned-edits-to-his-beloved-childrens‌-series [https://perma.cc/GJ2W-GSRY].Show More Finally, recent news reported that both Ian Flemings’s works and Agatha Christie’s novels were also put through sensitivity readers to remove offensive language, including insults and references to race and ethnicity.30 30.Rachel Hall, Agatha Christie Novels Reworked to Remove Potentially Offensive Language, Guardian (Mar. 26, 2023, 9:36 AM), https://www.theguardian.com/‌books/‌2023/mar/26/agatha-christie-novels-reworked-to-remove-potentially-offensive-language [https://perma.cc/V4HQ-UTY5].Show More

II. The Right to Revise & Normative Arguments for Revisions

In all the scenarios above, the editors of classic books had the legal right to revise and publish new editions of those classic books. For books that are still protected by copyright, the copyright owner generally has the exclusive right to revise, republish, or authorize the revision and republication of new editions of their books. If the copyright term for a book has expired, the book is then in the public domain, which would allow anyone to revise and republish the book in any original or updated format.

Regardless of the editors’ legal rights to make changes to classic books, copyright owners and publishers have been accused of “censorship” and “cultural vandalism” when they make changes to classic books to reflect modern attitudes and sensitivities to social and cultural stereotypes.31 31.O’Neill, supra note 3.Show More There is no doubt that something is lost when a classic book is edited. Classic books occupy a special place in literary culture that, like great works of art or historic monuments, can make their preservation feel vital to the very existence of society’s shared heritage. Because of their status, any suggestion of changing them can feel like an attack on a society’s culture itself. Of course, whose shared heritage and whose culture these “classic” books represent are certainly up for debate, especially when original versions of those books included portrayals of people in hurtful or stereotypical ways. Nevertheless, editing classic books does rupture the artistic integrity of a work and can disturb the author’s original intent. It can also make it harder to contextualize a work and to understand the culture of the period in which the work was created. Instead of updating books to reflect modern attitudes, some authors have called for offensive books to be left alone and allowed to fade away or go out of print.32 32.Annabel Nugent, Philip Pullman Suggests Roald Dahl Books Should Go ‘Out of Print’ Amid Edits Controversy, Independent (Feb. 20, 2023, 10:22 AM), https://www.independ‌ent.co.uk/arts-entertainment/books/news/roald-dahl-philip-pullman-edits-b2285643.html [https://perma.cc/W4R6-3YLL].Show More Some publishers have simply ceased publishing or licensing problematic books, such as Dr. Seuss Enterprises’ March 2021 announcement that it would cease publishing and licensing Mulberry Street and five other children’s books.33 33.Statement from Dr. Seuss Enterprises, Seusville (Mar. 2, 2021), https://www.‌seussville.com/statement-from-dr-seuss-enterprises/ [https://perma.cc/7WTX-NMC9].Show More

Even though something might be lost when classic books are updated, there is also gain when books are updated for inclusivity. Words matter, especially words used to describe people in books, and children’s books should especially be held to a higher standard of sensitivity. Children learn about their society, culture, and world from the books that they read, and literature can affirm historically entrenched ideologies of race, gender, and class.34 34.Ishizuka & Stephens, supra note 16, at 6; Dorothy L. Hurley, Seeing White: Children of Color and the Disney Fairy Tale Princess, 74 J. Negro Educ. 221, 222–23 (2005).Show More Authors and publishers can also widen readership of their classic books by giving readers non-offensive alternatives to the original versions of classic books, allowing readers to choose the books they want to read and recommend. Disney Enterprises, for instance, frequently creates new stories or films based on preexisting public domain books, often changing the stories in the process to make them more palatable for children.35 35.The Public Domain and New Derivative Works, supra note 14.Show More This allows classic books and stories to evolve and reach new audiences. These gains may justify legal incentives to encourage editors to create updated versions of beloved classic books, and copyright can provide that incentive through protection of derivative works.

III. Creating Copyrighted Derivative
Works in Revised Classic Books

A new edition of a classic book could be considered a copyrightable derivative work. Derivative works are new works based on or built off of preexisting works. In order to create a derivative work, an editor must change an underlying work by adding “incremental original expression” or “‘nontrivial’ variation[s]” to the underlying work.36 36.See Schrock v. Learning Curve Int’l, Inc., 586 F.3d 513, 520–21 (7th Cir. 2009).Show More The nontrivial variations “do[] not require a high degree of [incremental] originality,”37 37.Id. at 521 (internal quotation marks omitted).Show More but they must independently meet copyright’s low-threshold originality requirement. Some common creations of derivative works include translations, motion picture versions of books, sequels to a novel or motion picture, or new musical arrangements of a composition. A new, updated, or revised edition of a book is also a common type of derivative work, where “the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work.”38 38.Circular 14: Copyright in Derivative Works and Compilations, U.S. Copyright Off., https://www.copyright.gov/circs/circ14.pdf [https://perma.cc/85AQ-NF4V] (reviewed July 2020).Show More Derivative works can be created from works already in the public domain, such as when editors re-illustrated images for a classic like Little Black Sambo.39 39.Supra Part I.Show More They can also be created from works that are still protected by copyright if they are edited or authorized by the copyright owner, like Christopher Lofting’s new storyline added to Dolittle or Richard Scarry’s updated illustrations in his Best Word Book Ever.40 40.Id.Show More

While derivative works do not extend the original copyright terms of underlying works, the new copyrightable elements in those derivative works are protected under a new copyright term. This means that, even though the underlying work and any story elements in that original work might be in the public domain, a copyright owner could protect the newer elements they added to create a derivative work.41 41.Klinger v. Conan Doyle Est., Ltd., 755 F.3d 496, 500–02 (7th Cir. 2014).Show More For instance, Bannerman’s original Sambo, first published in 1899, is in the public domain. However, the newly illustrated book The Story of Little Babaji is a copyrighted derivative work.42 42.Linton Weeks, Taking a Tiger By the Tale: Little Black Sambo Loses Racist Elements in Two Retellings, Wash. Post (Sept. 17, 1996), https://www.washingtonpost.com/‌archive/‌lifestyle/1996/09/17/taking-a-tiger-by-the-tale-little-black-sambo-loses-racist-elements-in-tw‌o-retellings/3793375b-797e-422e-80cb-dbbc1e9cae72/ [https://perma.cc/NE58-YT23]; Helen Bannerman, The Story of Little Babaji (1st ed. 1996).Show More Therefore, even though copyright would not protect the storyline of Babaji, which was the same as Sambo, it would protect the added expressive elements in that new work—specifically the new illustrations in Babaji. The creator of Babaji registered his new edition with the U.S. Copyright Office in 1996 on the basis of the book’s “new illustrations, rev. & updated.”43 43.U.S. Copyright Off. Registration No. TX0004375179 (Sept. 24, 1996).Show More Similarly, Hugh Lofting’s original 1920 version of Dolittle may have entered the public domain in 1995, but the re-written story and elements added by Christopher in the 1988 derivative are protected by copyright and would remain off-limits for many more decades. The copyright notice in the 1988 edition of Dolittle confirms the copyright claim to the new edition:44 44.Hugh Lofting, The Story of Doctor Dolittle (1988).Show More

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Because derivative works can also be created from copyrighted works, some derivative works may have material that enters the public domain at different times. For instance, Richard Scarry’s Best Word Book Ever, first published in 1963, will enter the public domain in 2059, but the illustrations he added to the 1980s derivative works will be protected under copyright law until January 1, 2065.45 45.What Could Have Entered the Public Domain on January 1, 2020? Under the Law that Existed Until 1978 . . . Works from 1963, Ctr. for Study Pub. Domain, https://web.law.‌duke.edu/cspd/publicdomainday/2020/pre-1976/#fn1text [https://perma.cc/N7Z3-W35Q] (last visited Sept. 15, 2023) (explaining that the “Copyright Term Extension Act expanded the term for works published in 1963 to 95 years from the date of publication, so long as the works were published with a copyright notice and the term renewed,” while works published after January 1, 1978, enjoy copyright protection for “70 years after the date of the author’s death”); Eric Pace, Richard Scarry, 74, Children’s Book Author and Illustrator, Dies, N.Y. Times (May 3, 1994), https://www.nytimes.com/‌1994/‌05/‌03/‌obituar‌ies/richard-scarry-74-children-s-book‌-author-and-illustrator-dies.html [https://per‌ma.cc/9H‌VZ-9EME]. Because Richard Scarry died in 1994, the new illustrations he added beginning in 1980 will expire 70 years after his death, on January 1, 2065.Show More The copyright notice in the updated version of the book clarifies the copyright date for the new illustrations (© 1980) versus the original copyright date (© 1963):46 46.Richard Scarry, Richard Scarry’s Best Word Book Ever (1980).Show More

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The revised books in the Nancy Drew series and The Hardy Boys series are likely in the same situation, where the original editions that were published beginning in 1930 will be in the public domain before their new editions that were published beginning in 1959. For instance, the first book in the Nancy Drew Mystery Stories, The Secret of the Old Clock, was published in 1930 and will enter the public domain by January 1, 2026.47 47.See Carolyn Keene, The Secret of the Old Clock (1987) (displaying 1930 as the original year of publication); see also Lloyd J. Jassin, New Rules for Using Public Domain Materials, CopyLaw.com, https://www.copylaw.com/new_articles/PublicDomain.html [https://perma.‌cc/‌MY32-XJJN] (last visited Oct. 10, 2023) (explaining that, under the Sony Bono Copyright Term Extension Act (“CTEA”), “a work published in 1930, if properly renewed, will expire at the end of 2025”).Show More The new and updated edition of The Secret of the Old Clock was published in 1959, which will enter the public domain by 2055.48 48.See Ingall, supra note 22 (discussing the 1959 revisions); see also What Could Have Entered the Public Domain on January 1, 2016? Under the Law that Existed Until 1978 . . . Works from 1959, Ctr. for Study Pub. Domain, https://web.law.duke.edu/‌cspd/publicdomainday/2016/pre-1976/ [https://perma.cc/VN4P-RC‌SP] (last visited Oct. 10, 2023) (noting that “under current copyright law, we’ll have to wait until 2055” for “works published in 1959”).Show More

This seems reasonable. Copyright owners and editors who contribute original expression to classic books should be rewarded with copyright exclusivity to their new and original contributions. The ability to protect their new contributions, updates, and edits to classic works could encourage editors to find original and creative ways to replace racist or sexist tropes, stereotypes, imagery, and content from classic books. This incentive might itself spur substantial creativity in discovering artful ways of removing offensive content from classic books without disrupting the artistic value and integrity of the underlying works. It may also allow classic books and stories to continue to remain relevant to new generations of readers.

Furthermore, under copyright law, the copyright in derivative works only extends to “‘the incremental additions of originality contributed by the authors of the derivative works.’”49 49.Klinger v. Conan Doyle Est., Ltd, 755 F.3d 496, 501–02 (7th Cir. 2014) (internal citation omitted); see also 17 U.S.C. § 103(b) (codifying that “[t]he copyright in a compilation or derivative work extends only to the material contributed by the author of such work . . . and does not imply any exclusive right in the pre-existing material”).Show More This means that the original version of a classic book will enter the public domain, and the creation of a new edition or derivative work should not extend or otherwise affect the original scope or duration of the copyright protection in the original preexisting work.50 50.17 U.S.C. § 103(b).Show More Nevertheless, as discussed below, sometimes the lines are not as clear in practice as they appear in the law.

IV. The Threat to the Public Domain

The copyright in a derivative work only covers the new material, including additions and changes, that appear in the work. However, it is not always easy to distinguish the original underlying work from the new copyrightable elements, and copyright owners can exploit this ambiguity to attempt to overextend their exclusive rights in classic books. The disputes over the use of the Sherlock Holmes character and the copyright protection of Anne Frank’s diary are examples of copyright owners protecting public domain works through their copyrighted derivative works.

Prior to the U.S. Court of Appeals for the Seventh Circuit’s 1994 ruling in Klinger v. Conan Doyle Estate, Ltd., the Doyle Estate regularly prevented follow-on creators from using the character Sherlock Holmes in their works, because—even though most of Doyle’s stories featuring Sherlock Holmes were in the public domain—the final ten stories were not.51 51.Mike Masnick, Sherlock Holmes and the Case of the Never Ending Copyright Dispute, TechDirt (May 26, 2015, 8:12 AM), https://www.techdirt.com/2015/05/26/sherlock-holmes-case-never-ending-copyright-dispute/ [https://perma.cc/PM6T-JQQR]. See generally Elizabeth L. Rosenblatt, The Adventure of the Shrinking Public Domain, 86 Colo. L. Rev.561 (2015) (explaining how copyright holders have tried to slow the entry of literary characters into the public domain and suggesting an examination of current copyright doctrine to protect the public domain from encroachment).Show More In Klinger, the Doyle Estate argued that Doyle had created a “‘single complex character complete in sixty stories’” over a thirty-year period and, therefore, the character of Sherlock Holmes was still protected by copyright because his character was inseparable from the later, still-protected short stories.52 52.Aaron Moss, “Enola Holmes” and the Case of the Overreaching Copyright Owner, Copyright Lately (Sept. 1, 2020) (internal citation omitted), https://copyrightlately.com/enola-holmes-copyright-infringement-case/ [https://perma.cc/PW3E-H2NV].Show More The court disagreed, finding that the Sherlock Holmes character entered the public domain when the copyright in the original books expired.53 53.Klinger, 755 F.3d at 502–03.Show More However, the court left open the possibility that certain features of the Holmes character that appeared only in the later still-copyrighted stories could be protected by copyright.54 54.Id. at 502.Show More

In 2020, the Doyle Estate again filed suit to stop a new Sherlock Holmes production, this time against Nancy Springer and Netflix over their production of the Enola Holmes films, which were based on Springer’s popular young adult mystery series about Sherlock Holmes’s sister.55 55.Moss, supra note 52; Complaint for Injunction and Damages at 2–3, Conan Doyle Est. Ltd. v. Springer, No. 20-cv-00610 (D.N.M. June 23, 2020), 2020 WL 3451968, at *2–3.Show More In Conan Doyle Estate Ltd. v. Springer, the Doyle Estate admitted that Sherlock Holmes’s character was in the public domain, but claimed that certain key attributes of Holmes were still protected by copyright.56 56.Moss, supra note 52.Show More According to the Doyle Estate, those new character traits included developing Holmes “into a character with a heart” who “became warmer,” “became capable of friendship,” “could express emotion,” and who “began to respect women.”57 57.Id. (quoting Complaint for Injunction and Damages at 7, Conan Doyle Est. Ltd., No. 20-cv-00610 (D.N.M. June 23, 2020)).Show More The Doyle Estate argued that these additional features of Holmes’s personality, only added in the later stories, were protected by the unexpired copyright in those later works.58 58.Id.Show More This dispute was settled out of court.

A similar dispute transpired in Europe over The Diary of a Young Girl, also known as Anne Frank’s diary. The Diary was originally written by Anne Frank while in hiding with her family in Nazi-occupied Amsterdam during World War II.59 59.Colin Dwyer, ‘Mein Kampf’ Enters Public Domain; Arguably, Anne Frank’s Diary May Too, NPR (Dec. 31, 2015, 7:48 PM), https://www.npr.org/sections/thetwo-way/2015/12/31/‌461606275/mein-kampf-enters-public-domain-arguably-anne-franks-diary-may-too [https://perma.cc/G4F4-ULBR].Show More Anne Frank tragically died in 1945 in the Bergen-Belsen Nazi concentration camp.60 60.Alison Flood, Anne Frank’s Diary Caught in Fierce European Copyright Battle, Guardian (Jan. 18, 2016, 3:00 AM), https://www.theguardian.com/books/2016/jan/18/anne-franks-diar‌y-caught-in-fierce-european-copyright-battle [https://perma.cc/M6JL-Q9JZ].Show More In January 2016, two French researchers published The Diary in its original Dutch language, arguing that the copyright to The Diary expired seventy years after Anne Frank’s death.61 61.Id.Show More Anne Frank Fonds—the foundation founded by Anne’s father Otto Frank, which owned the copyright to The Diary—denied that copyright in the book had expired. While the Fonds acknowledged that Anne Frank was the sole author of the original diaries, it claimed that the published versions of The Diary were in fact derivative works attributed to Otto Frank and children’s author and translator, Mirjam Pressler. Specifically, the Fonds claimed that they were “‘responsible for the various edited versions of fragments of the diary’” and that “‘the copyrights to these adaptations [published in 1947 and 1991, respectively] have been vested in Otto Frank and Mirjam Pressler.’”62 62.Id.Show More A cease and desist letter from the Fonds to one of the French researchers described how Otto Frank had created a new edition of the book when he “merged, or compiled, the two versions of the diary that Anne Frank left, that were both incomplete and that partly overlapped, into one reader-friendly version.” As a result, “[t]he book he created earns his own copyright” and “[f]or the purposes of copyright, [Otto] is to be viewed as an ‘author’ of that version.”63 63.Dwyer, supra note 59; see also Cease and Desist Letter from Anne Frank Fond to Oliver Ertzscheid (Dec. 28, 2015), reproduced at https://affordance.typepad.com//‌mon_weblog/‌2015/12/la-lettre-de-lavocat-du-fonds-anne-frank.html [https://perma.cc/JR9G-VDLW] (last visited Sept. 16, 2023) (alleging Otto Frank’s copyright claim to The Diary).Show More Therefore, Anne Frank’s original diaries may have entered the public domain on January 1, 2016,64 64.There is a separate dispute over whether The Diary entered the public domain seventy years after Anne Frank’s death. See, e.g., Natalia Mileszyk, Anne Frank and the Term of Copyright Protection: Why It’s Time to Move from Harmonisation to Unification, Communia (Apr. 25, 2016), https://communia-association.org/2016/04/25/anne-frank-term-copyright-protection-time-move-harmonisation-unification/ [https://perma.cc/L75Z-3NEZ]; see also Jacob Rogers, Wikimedia Foundation Removes The Diary of Anne Frank Due to Copyright Law Requirements, Diff (Feb. 10, 2016), https://diff.wikimedia.org/2016/02/10/anne-frank-diary-removal/ [https://perma.cc/7FGA-5R8F] (explaining Wikimedia Foundation’s decision to “remove[] the Dutch-language text of The Diary of a Young Girl” in order “to comply with the United States’ Digital Millennium Copyright Act (DMCA),” which they believe provides copyright protection to “the Anne Frank original text . . . until 2042”).Show More but copyright to Otto Frank’s derivative work that was created from Anne’s original diaries will not expire until 2050—seventy years after Otto’s death.65 65.Dwyer, supra note 59.Show More

These disputes demonstrate how difficult it can be to delineate the line between the original underlying work and its added elements in a derivative work. They also show how the assertion of rights in derivative works could, at times, have the unintended practical consequence of limiting access to the original underlying work—even when that work is in the public domain.

The issue becomes most troubling, however, when editors assert copyright in trivial and unoriginal edits to classic books. Most courts should not find mere trivial edits to classic children’s books, such as removing a word or cutting out a few lines from a book, to be enough to create a copyrightable derivative work in the new edition.66 66.Clean Flicks of Colo., LLC v. Soderbergh, 433 F. Supp. 2d 1236, 1242 (D. Colo. 2006) (finding that mere removal of offensive words or scenes from a film fails to constitute a derivative work). But see Judge Sweet’s dissent in Matthew Bender & Co. v. West Publishing Co., 158 F.3d 693, 709 (2d Cir. 1998) (Sweet, J., dissenting), which appears to support an argument that the “totality” of edits, rather than each individual edit to a work, could result in a copyrightable “compilation work.”Show More For instance, the recent changes to Roald Dahl’s children’s books, which removed words such as “fat” and “ugly,” or swapped out words like “man” with “people” and “you old hag” with “you old crow,”67 67.Cumming et al., supra note 6.Show More do not appear to be original enough to create copyrightable derivative works in their updated editions. Similarly, Scholastic’s changes to R.L. Stine’s Goosebumps books, which included replacing “crazy” with “silly” and a “plump” character with a “cheerful” one,68 68.Raskin, supra note 29.Show More also appear to lack the minimal creativity required to warrant protectability as a derivative work under copyright.

However, even if these trivial additions do not legally create a copyrightable derivative work, editors can still overreach by claiming a copyrighted derivative to dissuade others from copying their edited versions of classic books. For instance, Mark Twain’s Huckleberry Finn entered the public domain almost a century ago. As noted above, in 2011, Alan Gribben and NewSouth Publishing published a revised edition of Huckleberry Finn that merely swapped out certain racial slurs for other less offensive words, most notably replacing “one disturbing racial label” with the word “slave.”69 69.About the Book: Mark Twain’s Adventures of Huckleberry Finn: The NewSouth Edition, NewSouth Books, http://www.newsouthbooks.com/bkpgs/‌detailtitle.php?isbn_solid=160306‌2351 [https://perma.cc/4PAW-QLV9] (last visited Sept. 16, 2023).Show More Such trivial edits to a public domain work should not create a copyrighted derivative work in the new edition. Nevertheless, the copyright notice for their 2011 edition of Huckleberry Finn reads: “Copyright © 2011 by NewSouth Books. Introduction, notes, and texts copyright © 2011 by Alan Gribben. Reproduction of any part without explicit written permission from the editor and publisher is strictly forbidden.”70 70.Copyright Notice, in Mark Twain’s Adventures of Tom Sawyer and Huckleberry Finn: The NewSouth Edition (Alan Gribben ed., 2011). A copyright officer at Nova Southeastern University noted that the Mark Twain Project also asserted copyright to its 2003 edition of Adventures of Huckleberry Finn. Stephen Carlisle, Claiming Copyright in Public Domain Works: It’s Time to Put an End to Publishing Sleight of Hand, NSU Fla. Blog (Aug. 27, 2014), http://copyright.nova.edu/claiming-copyright-public-domain/ [https://perma.cc/ABV4-P6‌NM].Show More Even if the editors have no legal basis to claim a copyrighted derivative work in their 2011 edition, the copyright notice printed in the book is a clear overreach of copyright and could deter third parties from reproducing that edition of the book.

There are special concerns with protecting new editions of classic children’s books that were revised to remove offensive stereotypes. First, at some point, the original offensive versions of those works will be in the public domain free for all to copy, use, and reproduce, but the updated versions will remain off-limits due to their later and longer copyright terms. For instance, the cruel and racially offensive illustrations of Prince Bumpo and his parents, and the story of Bumpo’s dream of becoming a white prince in the original Dolittle, may be reproduced, copied, or even adapted into other works, such as films, because the original book is in the public domain. However, the revised edition that replaced those racist tropes would be off-limits because the later-added elements remain protected by copyright. This could result in an increase, rather than a decrease, of replication of racial stereotypes in classic children’s books.

Second, as noted in the disputes involving Sherlock Holmes and Anne Frank’s diary, it can be confusing for follow-on creators to know which elements of a derivative work were in the original work and free to use, and which elements in the derivative work are still protected by copyright. This analysis can become even more complicated if the widely published version of a work was the derivative work and the original public domain work is less accessible, such as the situation involving Anne Frank’s diary.

Finally, there are distinct concerns with editors who claim copyright in trivial edits to a classic book. In those situations, public domain expression is removed from the public without the public gaining anything in exchange. Not only are those contributions undeserving of copyright, but they can also inadvertently protect the idea of a revised or expurgated work. Take the 2011 changes to Huckleberry Finn as an example, where the editors replaced racial slurs with less offensive words. While the editors may argue that it required some modicum of creativity or originality to come up with appropriate replacement words for racial slurs, there are only so many words that can be used to replace slurs without altering the meaning of a story. Protecting those few words and trivial edits under copyright law would end up protecting the idea of an expurgated Huckleberry Finn and could prevent others from publishing similarly updated versions of public domain books. Even though the editor, Alan Gribben, took a personal and reputational risk by editing this popular classic novel so that it may reach a wider readership, including in schools,71 71.Abby Liebing, The Man Who Changed the N-Word in Huck Finn, Collegian (Oct. 24, 2019), https://hillsdalecollegian.com/2019/10/the-man-who-changed-the-n-word-in-huck-finn/ [https://perma.cc/423B-FFXN].Show More the overclaiming of copyright to derivative works can have unintended consequences as discussed above.

But in the case of classic books, especially children’s books, do the benefits of granting copyright to derivative works outweigh their potential concerns? Would the ability to gain copyright protection of derivative works encourage their creation, and should society bear the cost of potentially extended exclusive rights if it means classic books get updated in socially beneficial ways? Copyright balances the interests of creators and the public by limiting copyright terms in time and scope. When a copyrighted work enters the public domain, that work becomes available for free use and distribution by the public. The public domain is an important source of free expression, allowing follow-on creators to freely use and build upon existing works in the creation of new works. When a copyright owner or follow-on editor attempts to extend their exclusive rights through minimal or trivial edits, they are removing expression from the public domain without contributing anything original to the common good, which disrupts the copyright bargain between creators and the public. This can have the practical effect of depriving others of the opportunity to use and build upon the original work. It can potentially limit future editors that wish to publish their own updated or revised versions of classic books, ultimately limiting the free expression that the public domain is intended to promote.

Conclusion

Roald Dahl’s original Charlie and the Chocolate Factory will enter the public domain on January 1, 2060.72 72.What Could Have Entered the Public Domain on January 1, 2021? Under the Law that Existed Until 1978 . . . Works from 1964!, Ctr. for Study Pub. Domain, https://web.law.duke.‌edu/cspd/publicdomainday/2021/pre-1976/ [https://perma.cc/3T6F-TZ‌GL] (last visited Sept. 16, 2023) (discussing the Copyright Term Extension Act’s delay of the copyright expiration date for books published in 1964 from January 1, 2021, to January 1, 2060).Show More In 37 years, which version of Charlie and the Chocolate Factory will kids want to read? Will they read about the African pygmies that Wonka discovered and shipped to England to work for him? Or just the “small men” or, more recently, the “small people” that work in the chocolate factory? Will Augustus Gloop be “fat” or merely “enormous,” or perhaps a new word will replace the description of his appearance? Classic books, especially children’s books, have been and will continue to be revised for artistic or economic reasons, to increase popularity and appeal, and to remain relevant to modern readers. At its core, the controversy about editing classic books is about the rights, power, and benefits that copyright bestows upon authors and copyright holders in exchange for their creation of valuable works of authorship. Consequently, authors and copyright holders also undertake a responsibility to educate and shape attitudes and minds through their books.

In the meantime, editors who contribute original and expressive revisions to classic children’s works can create derivative works in their new editions, allowing those editors to assert copyright in their new contributions. As discussed above, several editors of classic books have claimed copyright in the new illustrations or new editions of their books. Sometimes those derivative works are created from works that are in the public domain. Other times, derivative works are created from works that are still protected by copyright. Because new expression in derivative works enjoys new copyright terms, many original classic books are in the public domain or could be in the public domain before their updated editions. This practice could encourage editors to make substantial creative contributions to classic books, such as re-illustrating books, re-writing stories, re-creating characters, or re-telling stories, allowing those classic books and stories to reach new audiences. At the same time, the practice can be susceptible to misuse by editors who assert copyright to trivial edits and create the practical effect of extending exclusivity to classic books that are in or should soon be in the public domain. Copyright must strike a balance to ensure follow-on creativity is encouraged and editors are rewarded for updating classic books to suit a modern audience and readership, but also guard against the inadvertent consequence of diminishing the public domain of classic books.

  1.  Salman Rushdie (@SalmanRushdie), Twitter (Feb. 18, 2023, 5:41 PM), https://twitter.‌com/‌SalmanRushdie/status/1627075835525210113 [https://perma.cc/28DV-U‌NWF]. ↑
  2.  Helen Lewis, Roald Dahl Can Never Be Made Nice, Atlantic (Feb. 21, 2023), https://www.theatlantic.com/ideas/archive/2023/02/without-nastiness-roald-dahl-isnt-roald-dahl/673141/ [https://perma.cc/73B5-NEXP]. ↑
  3.  Brendan O’Neill, The Rewriting of Roald Dahl Is an Act of Cultural Vandalism, Spectator (Feb. 19, 2023, 10:57 AM), https://www.spectator.co.uk/article/the-rewriting-of-roald-dahl-is‌-an-act-of-cultural-vandalism/ [https://perma.cc/SAG9-USZ4]. ↑
  4.  Sky News Austl., ‘Vandalism’: Roald Dahl the ‘Latest Victim’ of the Woke’s ‘War’ Against Culture, YouTube (Feb. 20, 2023), https://www.youtube.com/watch?v=K7crI‌cZ‌3qM [https://perma.cc/6VKJ-VMNU]. ↑
  5.  William James, UK PM Sunak Condemns ‘Gobblefunk’ Changes to Roald Dahl’s Books, Reuters (Feb. 20, 2023, 10:25 AM), https://www.reuters.com/lifestyle/uk-pm-sunak-condemn‌s-gobblefunk-changes-roald-dahls-books-2023-02-20/ [https://perma.cc/WNV2-QUGP]. ↑
  6.  Derrick Bryson Taylor, Roald Dahl’s Books Are Rewritten to Cut Potentially Offensive Language, N.Y. Times (Feb. 20, 2023), https://www.nytimes.com/2023/02/20/books/roald-dahl-books-changes.html [https://perma.cc/2X6N-8R4X]. See generally Ed Cumming, Abigail Buchanan, Genevieve Holl-Allen & Benedict Smith, Roald Dahl Rewritten: The Hundreds of Changes Made to Suit a New ‘Sensitive’ Generation, Telegraph (Feb. 24, 2023, 4:20 PM), https://www.telegraph.co.uk/news/2023/02/17/‌roald-dahl-books-rewritten-offensi‌v‌e-matilda-witches-twits/#:~:text=By%20comparing%20the%20latest%20editions,‌are%‌2‌0n‌ow%20the%20Cloud%2DPeople [https://perma.cc/C89B-HDG2] (comparing older and newer excerpts from Roald Dahl’s books). ↑
  7.  Cumming et al., supra note 6. ↑
  8.  Rushdie, supra note 1; Taylor, supra note 6. ↑
  9.  Christian Holub, Wes Anderson Criticizes Editing of Roald Dahl Books to Remove ‘Offensive’ Language: ‘What’s Done Is Done,’ Ent. Wkly. (Sept. 1, 2023, 1:36 PM), https://ew.com/movies/wes-anderson-criticizes-editing-of-roald-dahl-books-i-dont-even-wan‌t-the-artist-to-modify-their-work/ [https://perma.cc/5QHS-83LX]. ↑
  10.  James, supra note 5. ↑
  11.  Jane Dalton, Queen Consort Attacks Censorship of Authors as Roald Dahl Row Rages, Independent (Feb. 23, 2023, 5:49 PM), https://www.independent.co.uk/life-style/royal-family/camilla-queen-roald-dahl-censorship-b2288196.html [https://perma.cc/TXN2-MV‌KA]. ↑
  12.  Armani Syed, Why Rewrites to Roald Dahl’s Books Are Stirring Controversy, Time (Feb. 21, 2023, 1:21 PM), https://time.com/6256980/roald-dahl-censorship-debate/ [https://perma.‌cc/82ST-AF2S]. ↑
  13.  See, e.g., Lucy Knight, Sensitivity Readers: What Publishing’s Most Polarising Role Is Really About, Guardian (Mar. 15, 2023, 4:00 AM), https://www.theguardian.com/books/‌2023/mar/15/sensitivity-readers-what-publishings-most-polarising-role-is-really-about [https://perma.cc/THS6-VA2T]; Althea Legaspi, Agatha Christie Novels Edited to Remove Racist Language, Rolling Stone (Mar. 27, 2023), https://www.rollingstone.com/culture/‌culture-news/agatha-christie-novels-edited-remove-racist-language-1234704199/ [https://perma.cc/54GT-JE2T]. ↑
  14.  The Public Domain and New Derivative Works, Authors All. (Jan. 12, 2021), https://www.authorsalliance.org/2021/01/12/the-public-domain-and-new-derivative-works/. [https://perma.cc/MNF9-ZAX3]. ↑
  15.  Livia Gershon, Roald Dahl’s Anti-Black Racism, JSTOR Daily (Dec. 10, 2020), https://daily.jstor.org/roald-dahls-anti-black-racism/ [https://perma.cc/AU7X-87PL]. ↑
  16.  Taylor Weik, Why Dr. Seuss Got Away with Anti-Asian Racism for So Long, NBC News (Mar. 12, 2021, 2:46 PM), https://www.nbcnews.com/news/asian-america/dr-seuss-got-away-anti-asian-racism-long-rcna381 [https://perma.cc/6KQL-8ZFV]; Katie Ishizuka & Ramón Stephens, The Cat Is Out of the Bag: Orientalism, Anti-Blackness, and White Supremacy in Dr. Seuss’s Children’s Books, 1 Rsch. on Diversity Youth Literature, Feb. 2019, at 1, 15, https://sophia.stkate.edu/cgi/viewcontent.cgi?article=1050&context=rdyl [https://perma.cc/6KQL-8ZFV]. ↑
  17.  Laura Willard, 8 Changes That Were Made to a Classic Richard Scarry Book to Keep Up with the Times. Progress!, Upworthy (Feb. 17, 2023), https://www.upworthy.com/8-changes-that-were-made-to-a-classic-richard-scarry-book-to-keep-up-with-the-times-progress [https://perma.cc/C82F-KKC7]. ↑
  18.  Christopher Lofting, Afterword to Hugh Lofting, The Story of Doctor Dolittle 152–54 (1988). ↑
  19.  See Selma G. Lanes, Childrens’ Books; Doctor Dolittle, Innocent Again, N.Y. Times, Aug. 28, 1988, at 20, https://www.nytimes.com/1988/08/28/books/childrens-books-doctor-dolittle-innocent-again.html [https://perma.cc/S6QC-4XPV] (noting that “[t]he centenary edition’s new excisions and revisions are far more extensive” than previous edits to the books); Dewey W. Chambers, How Now, Dr. Dolittle?, 45 Elementary Eng., Apr. 1968, at 437, 438. ↑
  20.  Lofting, Afterword to The Story of Doctor Dolittle, supra note 18, at 153. ↑
  21.  Id. ↑
  22.  Marjorie Ingall, Nancy Drew and the Case of the Politically Incorrect Children’s Books
    ,

    Tablet Mag. (Dec. 17, 2013), https://www.tabletmag.com/sections/community/articles/nancy-drew [https://perma.cc/5U7G-SS3C]; Kelly Robinson, Dr Seuss ‘Cancelled’? There’s Nothing New About Cutting Racism from Children’s Books, Guardian (Mar. 9, 2021, 12:15 PM), https://www.theguardian.com/books/2021/mar/09/dr-seuss-cancelled-theres-nothing-new-about-cutting-racism-from-childrens-books [https://perma.cc/QMX8-VVQC]. ↑

  23.  Brandon Tensley, The Knotty Nostalgia of the Hardy Boys Series, Atlantic (Jan. 27, 2019), https://www.theatlantic.com/entertainment/archive/2019/01/reading-hardy-boys-nosta‌lgia-disappointment-racism/581071/ [https://perma.cc/H9Q5-ZQC8]. ↑
  24.  See Matthew Fellion & Katherine Inglis, Censored: A Literary History of Subversion and Control 123 (2017); Brandon Murakami & Brianna Anderson, Mgambo, Sam, and the Tigers: Restorying Little Black Sambo Adaptations of the 1990s, Childs. Literature Educ., Feb. 18, 2022, at 1, 2, https://rdcu.be/cZeyP [https://perma.cc/6QRW-CSSB]. ↑
  25.  Fellion & Inglis, supra note 24, at 123. ↑
  26.  Murakami & Anderson, supra note 24, at 3. ↑
  27.  Id. at 11. ↑
  28.  Taylor, supra note 6 (explaining that Puffin Books made changes to Roald Dahl’s books following collaboration with an organization that “champions diversity and accessibility in children’s literature”). ↑
  29.  Raina Raskin, ‘Goosebumps’ Author Accuses Publisher of Unsanctioned Edits to His Beloved Children’s Series, N.Y. Sun (Mar. 8, 2023, 3:20 PM), https://www.nysun.com/‌article/goosebumps-author-accuses-publisher-of-unsanctioned-edits-to-his-beloved-childrens‌-series [https://perma.cc/GJ2W-GSRY]. ↑
  30.  Rachel Hall, Agatha Christie Novels Reworked to Remove Potentially Offensive Language, Guardian (Mar. 26, 2023, 9:36 AM), https://www.theguardian.com/‌books/‌2023/mar/26/agatha-christie-novels-reworked-to-remove-potentially-offensive-language [https://perma.cc/V4HQ-UTY5]. ↑
  31.  O’Neill, supra note 3. ↑
  32.  Annabel Nugent, Philip Pullman Suggests Roald Dahl Books Should Go ‘Out of Print’ Amid Edits Controversy, Independent (Feb. 20, 2023, 10:22 AM), https://www.independ‌ent.co.uk/arts-entertainment/books/news/roald-dahl-philip-pullman-edits-b2285643.html [https://perma.cc/W4R6-3YLL]. ↑
  33.  Statement from Dr. Seuss Enterprises, Seusville (Mar. 2, 2021), https://www.‌seussville.com/statement-from-dr-seuss-enterprises/ [https://perma.cc/7WTX-NMC9]. ↑
  34.  Ishizuka & Stephens, supra note 16, at 6; Dorothy L. Hurley, Seeing White: Children of Color and the Disney Fairy Tale Princess,
    74

    J. Negro Educ. 221, 222–23 (2005). ↑

  35.  The Public Domain and New Derivative Works, supra note 14. ↑
  36.  See Schrock v. Learning Curve Int’l, Inc., 586 F.3d 513, 520–21 (7th Cir. 2009). ↑
  37.  Id. at 521 (internal quotation marks omitted). ↑
  38.  Circular 14: Copyright in Derivative Works and Compilations, U.S. Copyright Off., https://www.copyright.gov/circs/circ14.pdf [https://perma.cc/85AQ-NF4V] (reviewed July 2020). ↑
  39.  Supra Part I. ↑
  40.  Id. ↑
  41.  Klinger v. Conan Doyle Est., Ltd., 755 F.3d 496, 500–02 (7th Cir. 2014). ↑
  42.  Linton Weeks, Taking a Tiger By the Tale: Little Black Sambo Loses Racist Elements in Two Retellings, Wash. Post (Sept. 17, 1996), https://www.washingtonpost.com/‌archive/‌lifestyle/1996/09/17/taking-a-tiger-by-the-tale-little-black-sambo-loses-racist-elements-in-tw‌o-retellings/3793375b-797e-422e-80cb-dbbc1e9cae72/ [https://perma.cc/NE58-YT23]; Helen Bannerman, The Story of Little Babaji (1st ed. 1996). ↑
  43.  U.S. Copyright Off. Registration No. TX0004375179 (Sept. 24, 1996). ↑
  44.  Hugh Lofting, The Story of Doctor Dolittle (1988). ↑
  45.  What Could Have Entered the Public Domain on January 1, 2020? Under the Law that Existed Until 1978 . . . Works from 1963, Ctr. for Study Pub. Domain, https://web.law.‌duke.edu/cspd/publicdomainday/2020/pre-1976/#fn1text [https://perma.cc/N7Z3-W35Q] (last visited Sept. 15, 2023) (explaining that the “Copyright Term Extension Act expanded the term for works published in 1963 to 95 years from the date of publication, so long as the works were published with a copyright notice and the term renewed,” while works published after January 1, 1978, enjoy copyright protection for “70 years after the date of the author’s death”); Eric Pace, Richard Scarry, 74, Children’s Book Author and Illustrator, Dies, N.Y. Times (May 3, 1994), https://www.nytimes.com/‌1994/‌05/‌03/‌obituar‌ies/richard-scarry-74-children-s-book‌-author-and-illustrator-dies.html [https://per‌ma.cc/9H‌VZ-9EME]. Because Richard Scarry died in 1994, the new illustrations he added beginning in 1980 will expire 70 years after his death, on January 1, 2065. ↑
  46.  Richard Scarry, Richard Scarry’s Best Word Book Ever (1980). ↑
  47.  See Carolyn Keene, The Secret of the Old Clock (1987) (displaying 1930 as the original year of publication); see also Lloyd J. Jassin, New Rules for Using Public Domain Materials, CopyLaw.com, https://www.copylaw.com/new_articles/PublicDomain.html [https://perma.‌cc/‌MY32-XJJN] (last visited Oct. 10, 2023) (explaining that, under the Sony Bono Copyright Term Extension Act (“CTEA”), “a work published in 1930, if properly renewed, will expire at the end of 2025”). ↑
  48.  See Ingall, supra note 22 (discussing the 1959 revisions); see also What Could Have Entered the Public Domain on January 1, 2016? Under the Law that Existed Until 1978 . . . Works from 1959, Ctr. for Study Pub. Domain, https://web.law.duke.edu/‌cspd/publicdomainday/2016/pre-1976/ [https://perma.cc/VN4P-RC‌SP] (last visited Oct. 10, 2023) (noting that “under current copyright law, we’ll have to wait until 2055” for “works published in 1959”). ↑
  49.  Klinger v. Conan Doyle Est., Ltd, 755 F.3d 496, 501–02 (7th Cir. 2014) (internal citation omitted); see also 17 U.S.C. § 103(b) (codifying that “[t]he copyright in a compilation or derivative work extends only to the material contributed by the author of such work . . . and does not imply any exclusive right in the pre-existing material”). ↑
  50.  17 U.S.C. § 103(b). ↑
  51.  Mike Masnick, Sherlock Holmes and the Case of the Never Ending Copyright Dispute, TechDirt (May 26, 2015, 8:12 AM), https://www.techdirt.com/2015/05/26/sherlock-holmes-case-never-ending-copyright-dispute/ [https://perma.cc/PM6T-JQQR]. See generally Elizabeth L. Rosenblatt, The Adventure of the Shrinking Public Domain,
    86

    Colo. L. Rev.

    561 (2015) (explaining how copyright holders have tried to slow the entry of literary characters into the public domain and suggesting an examination of current copyright doctrine to protect the public domain from encroachment). ↑

  52.  Aaron Moss, “Enola Holmes” and the Case of the Overreaching Copyright Owner, Copyright Lately (Sept. 1, 2020) (internal citation omitted), https://copyrightlately.com/enola-holmes-copyright-infringement-case/ [https://perma.cc/PW3E-H2NV]. ↑
  53.  Klinger, 755 F.3d at 502–03. ↑
  54.  Id. at 502. ↑
  55.  Moss, supra note 52; Complaint for Injunction and Damages at 2–3, Conan Doyle Est. Ltd. v. Springer, No. 20-cv-00610 (D.N.M. June 23, 2020), 2020 WL 3451968, at *2–3. ↑
  56.  Moss, supra note 52. ↑
  57.  Id. (quoting Complaint for Injunction and Damages at 7, Conan Doyle Est. Ltd., No. 20-cv-00610 (D.N.M. June 23, 2020)). ↑
  58.  Id. ↑
  59.  Colin Dwyer, ‘Mein Kampf’ Enters Public Domain; Arguably, Anne Frank’s Diary May Too, NPR (Dec. 31, 2015, 7:48 PM), https://www.npr.org/sections/thetwo-way/2015/12/31/‌461606275/mein-kampf-enters-public-domain-arguably-anne-franks-diary-may-too [https://perma.cc/G4F4-ULBR]. ↑
  60.  Alison Flood, Anne Frank’s Diary Caught in Fierce European Copyright Battle, Guardian (Jan. 18, 2016, 3:00 AM), https://www.theguardian.com/books/2016/jan/18/anne-franks-diar‌y-caught-in-fierce-european-copyright-battle [https://perma.cc/M6JL-Q9JZ]. ↑
  61.  Id. ↑
  62.  Id. ↑
  63.  Dwyer, supra note 59; see also Cease and Desist Letter from Anne Frank Fond to Oliver Ertzscheid (Dec. 28, 2015), reproduced at https://affordance.typepad.com//‌mon_weblog/‌2015/12/la-lettre-de-lavocat-du-fonds-anne-frank.html [https://perma.cc/JR9G-VDLW] (last visited Sept. 16, 2023) (alleging Otto Frank’s copyright claim to The Diary). ↑
  64.  There is a separate dispute over whether The Diary entered the public domain seventy years after Anne Frank’s death. See, e.g., Natalia Mileszyk, Anne Frank and the Term of Copyright Protection: Why It’s Time to Move from Harmonisation to Unification, Communia (Apr. 25, 2016), https://communia-association.org/2016/04/25/anne-frank-term-copyright-protection-time-move-harmonisation-unification/ [https://perma.cc/L75Z-3NEZ]; see also Jacob Rogers, Wikimedia Foundation Removes The Diary of Anne Frank Due to Copyright Law Requirements, Diff (Feb. 10, 2016), https://diff.wikimedia.org/2016/02/10/anne-frank-diary-removal/ [https://perma.cc/7FGA-5R8F] (explaining Wikimedia Foundation’s decision to “remove[] the Dutch-language text of The Diary of a Young Girl” in order “to comply with the United States’ Digital Millennium Copyright Act (DMCA),” which they believe provides copyright protection to “the Anne Frank original text . . . until 2042”). ↑
  65.  Dwyer, supra note 59. ↑
  66.  Clean Flicks of Colo., LLC v. Soderbergh, 433 F. Supp. 2d 1236, 1242 (D. Colo. 2006) (finding that mere removal of offensive words or scenes from a film fails to constitute a derivative work). But see Judge Sweet’s dissent in Matthew Bender & Co. v. West Publishing Co., 158 F.3d 693, 709 (2d Cir. 1998) (Sweet, J., dissenting), which appears to support an argument that the “totality” of edits, rather than each individual edit to a work, could result in a copyrightable “compilation work.” ↑
  67.  Cumming et al., supra note 6. ↑
  68.  Raskin, supra note 29. ↑
  69.  About the Book: Mark Twain’s Adventures of Huckleberry Finn: The NewSouth Edition, NewSouth Books, http://www.newsouthbooks.com/bkpgs/‌detailtitle.php?isbn_solid=160306‌2351 [https://perma.cc/4PAW-QLV9] (last visited Sept. 16, 2023). ↑
  70.  Copyright Notice, in Mark Twain’s Adventures of Tom Sawyer and Huckleberry Finn: The NewSouth Edition (Alan Gribben ed., 2011). A copyright officer at Nova Southeastern University noted that the Mark Twain Project also asserted copyright to its 2003 edition of Adventures of Huckleberry Finn. Stephen Carlisle, Claiming Copyright in Public Domain Works: It’s Time to Put an End to Publishing Sleight of Hand, NSU Fla. Blog (Aug. 27, 2014), http://copyright.nova.edu/claiming-copyright-public-domain/ [https://perma.cc/ABV4-P6‌NM]. ↑
  71.  Abby Liebing, The Man Who Changed the N-Word in Huck Finn, Collegian (Oct. 24, 2019), https://hillsdalecollegian.com/2019/10/the-man-who-changed-the-n-word-in-huck-finn/ [https://perma.cc/423B-FFXN]. ↑

  72.  What Could Have Entered the Public Domain on January 1, 2021? Under the Law that Existed Until 1978 . . . Works from 1964!, Ctr. for Study Pub. Domain, https://web.law.duke.‌edu/cspd/publicdomainday/2021/pre-1976/ [https://perma.cc/3T6F-TZ‌GL] (last visited Sept. 16, 2023) (discussing the Copyright Term Extension Act’s delay of the copyright expiration date for books published in 1964 from January 1, 2021, to January 1, 2060). ↑

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