The New York Times reported Sunday that New York’s standardized English exam has bowdlerized passages by well-known authors, deleting references to race, religion, sex, nudity, alcohol, and anything else deemed “offensive.” Can the authors or their publishers sue?
Yes. They could sue the New York Department of Education under either trademark or copyright law. Section 43(a) of the Lanham Act (also known as the U.S. Trademark Act) forbids false attribution of a product. Because the alterations to the passages distort their intended meaning, the authors could argue that the work attributed to them is not really theirs.
They could also sue under copyright law. The New York Department of Education did not secure the permission of the authors or their publishers to print the passages on the exam. Usually, that’s not illegal: A portion of the federal copyright code—known as fair use—allows the reprinting of short excerpts for educational purposes. But in this case, the authors could argue that distorting their work hardly qualifies as fair use.
Bonus Explainer: The Lanham Act has been invoked in this way before. In 1975, ABC broadcast a program by the British comedy group Monty Python, of which 24 of the original 90 minutes had been cut to make time for commercials and to remove offensive material. Python was horrified by the mutilation and sued ABC. In Gilliam v. American Broadcasting Companies, a U.S. court of appeals judge agreed that ABC had injured the group’s reputation by televising a program that was “a mere caricature of their talents.” ABC was forbidden from rebroadcasting the show.
Explainer thanks Leon Friedman, general counsel for PEN America, and Jane Ginsburg of ColumbiaLawSchool.
