This week’s ‘tales from the excesses of copyright’ comes from the estate of Reverend Doctor Martin Luther King who continue to put restrictions on the use of the civil rights’ leader words, images and sounds. The speech, which celebrates its 50th anniversary this week, cannot be found legally in the public domain, unless express permission has been granted by King’s estate. The only licensed version of the famous civil rights speech is found in its entirety on the Martin Luther King historical site which hosts almost all of his archives.
His speech “I have a Dream” is considered one of the most important cultural and historical moments of the 20th Century, yet is in incredibly difficult to find, listen to, or watch in its entirety when King addressed several hundred thousand people before the Lincoln Memorial in Washington, DC. The speech, which won’t be in the public domain until 2038, can only be used if a commercial entity pays the King estate a hefty fee. King failed to register the speech with the Registrar of Copyrights and it was only after his death that his estate’s managers sought to do so. CBS, Inc. learned this the hard way after broadcasting the speech and was subsequently sued by managers of King’s Estate. In Estate of Martin Luther King versus CBS, Inc.
, the court ruled that the speech was actually a performance and like other exhibitions, is covered by copyright. Although the speech was never registered, his estate received copyright after documenting the work shortly after his death. Owners of copyright in America can claim royalties in the speech for 70 years after the death of its creator, although the idea does not sit well with a lot of people.
"I have a copyright"
Jennifer Jenkins, director of the Center for the Study of the Public Domain at Duke University's School of Law, says she respects the right of King's family to maintain their father's legacy. "[But] EMI Publishing (managers employed by the King estate)—they have a raison d'être, which is to exploit copyrighted works," she says. "And that goal may be somewhat at odds with what King would have wanted people to do with his speech.""Most people have a strong intuitive sense that, particularly with the 50th anniversary coming up, or every year on MLK Day, that any kid, any educator, anybody should be able just to Google it online and watch the speech in its entirety," Jenkins says. "It's a piece of history, and I think most people think that he would have wanted it to be available [for free]—maybe not available for use in a commercial, but certainly available for educational and journalistic purposes or documentaries about the civil rights movement."The idea of increasing the length of protection was rooted in the idea that copyright was the recognition and encouragement of authorship. Its duration should be extended for the benefit of family and descendants who might otherwise suffer for their relative’s art. The King family have enjoyed the financial benefits of copyright granted to their famous father’s works. Arguments for either side have merit. While the law doesn't specifically require that owners ‘extract value’ from the copyright, it does specifically allow for the King estate to do so. It is perfectly legal for the estate to restrict anyone’s use to the limits of ‘fair use’. Wanting something historical or wanting something cultural is not going to get you very far when protected by copyright. Others argue that since Dr King didn't register the speech, nor did he keep any of his accumulated wealth, he would be turning over in his grave to think that his descendants were making a buck off of his speech. Dr King stood for eradicating racism, not for limiting its place in the public domain. If you want to inspire generations of schoolchildren to “dream” of a world without racism, then the estate should allow them to hear it without having to charge them for doing so.CBS, Inc. argued that Dr. King had not complied with the statutes on copyright on the books, and thus, by performing the work, he essentially granted it to the public domain. His estate argued to the contrary that the work had never been published at the time of its initial performance by Dr. King and thus retained common law copyright. From the judgement of the 11th Circuit Court of Appeals:"
A performance, no matter how broad the audience, is not a publication; to hold otherwise would be to upset a long line of precedent. This conclusion is not altered by the fact that the Speech was broadcast live to a broad radio and television audience and was the subject of extensive contemporaneous news coverage. We follow the above cited case law indicating that release to the news media for contemporary coverage of a newsworthy event is only a limited publication.
"The ruling that the copyright was in force meant that the case was remanded to the district court and the Estate's lawsuit against CBS could proceed. CBS and the King Estate reached a settlement before proceeding further in the courts.