[A2k] Jonathan Band in Politico: Can You Copyright a Dream?

Thiru Balasubramaniam thiru at keionline.org
Tue Jan 13 07:07:59 PST 2015

Can You Copyright a Dream?

How the Martin Luther King estate controls the national hero’s image.


January 12, 2015

Read more:

The new film *Selma* has sparked a bitter public debate, mostly concerning
the film’s representation of President Lyndon Johnson’s stance on voting
rights and how much artistic license is appropriate for a biopic centering
on a major historical event. Less discussed, however, is the degree to
which the MLK estate’s tough stance on copyright affected the historical
accuracy of the film—and has affected many other films and books before it.
What is lost when a biopic cannot take full advantage of its main
character’s rhetorical brilliance? And what alternatives are available for
filmmakers that want to produce history, not hagiography, about MLK?

*Selma* director Ava DuVernay may well have taken more license than
artistically necessary in the confrontational scenes between Martin Luther
King Jr. and President Johnson. But inaccuracies in other significant parts
of the film were forced upon DuVernay by copyright law. The film’s numerous
scenes of King delivering powerful speeches regarding civil rights all had
to be paraphrased, because the MLK estate has already licensed the film
rights in those speeches to DreamWorks and Warner Bros., for an MLK biopic
Steven Spielberg is slated to produce.

The litigious MLK estate, controlled now by King’s descendants, has a long
history of employing copyright to restrict the use of King’s speeches. The
estate appears to have two objectives: maximize revenue and control King’s
image. In the 1990s, the estate sued *USAToday* for publishing the full
text of the “I Have a Dream” speech King delivered on the steps of the
Lincoln Memorial in August 1963, and the newspaper quickly settled by
paying for a license and attorneys’ fees. The estate then sued CBS for
including footage of the speech in a segment of its documentary series *The
20th Century with Mike **Wallace*. In its defense in court, CBS argued that
the speech had entered into the public domain because King had not complied
with the notice and registration requirements of the Copyright Act of 1909.
The trial court agreed with CBS, but an appellate court reversed and ruled
in favor of the MLK estate on narrow technical grounds. (Specifically,
although the speech was delivered to a live audience of several hundred
thousand people and broadcast to millions more, the appellate court treated
the delivery of the speech as only a limited publication of the underlying
text that did not trigger the 1909 Act’s notice and registration

The MLK estate also sued the producers of *Eyes on the **Prize*, an
Emmy-winning documentary series on the civil rights movement, for the use
of unlicensed footage of King speeches. This litigation settled when the
producers reportedly paid the estate $100,000. Because of this dispute (and
similar issues with other rights-holders), the series was out of
circulation from 1993 to 2006, when PBS finally renewed most of the rights
and edited the remaining unlicensed footage.

During the summer of 2013, as the nation was celebrating the 50th
anniversary of the March on Washington, the MLK estate restricted
broadcasts of “I Have a Dream,” but it did not lock down the speech
altogether: It authorized sales of DVDs of the speech, and it licensed AT&T
to use segments of the speech in cell phone ads. Over the years, the MLK
estate has also licensed King speeches to be used in ads by Alcatel, Apple,
Chevrolet and Mercedes. And it received over $700,000 from the foundation
erecting the MLK Memorial in Washington, D.C., for the right to use MLK’s
speeches and likeness in the Memorial.

How is it that one estate can control the use of speeches so central to
American history 50 years after their delivery and 47 years after King’s
tragic assassination?

One reason is that King was a private citizen. Had King been a federal
government official when he wrote his speeches, those writings would always
have been in the public domain. But because King was the extraordinary
national political figure who was not a federal employee, the copyrights
belonged to him and passed to his estate upon his death.

Another issue is that the term of copyright protection has grown
increasingly long. The first copyright act adopted by Congress in 1790
provided a term of protection of 14 years after first publication that
could be renewed for an additional 14 years, for a total of 28 years. The
initial purpose of the exclusive rights granted by the copyright law was to
provide authors with an economic incentive to create works for the public
good. At the same time, the duration of the author’s monopoly was limited
so as to enable other authors to build on the first artist’s work.

Thanks to aggressive lobbying by publishers, the estates of authors and,
more recently, the motion picture studios, Congress has repeatedly extended
the copyright term. In 1831, Congress extended it to two 21-year periods
after first publication for a total of 42 years; and in 1909, Congress
extended the term to two 28-year periods for a total of 56 years. Then, in
the 1976 Copyright Act, in an effort to harmonize U.S. law with the
international law of the Berne Convention, Congress lengthened the
copyright term to the life of the author plus 50 years. In 1998, Congress
added 20 more years of protection, to the life of the author plus 70 years,
citing the law of the European Union as an international precedent.

The extensions have always been retroactive, applying to works already in
existence. Thus, King’s speeches and other writings will not enter the
public domain until 70 years after his death: January 1, 2039.

In Congress’ rush to please copyright owners, it has lost sight of the
balance the founders intended. A term of protection of “life plus 70”
grossly exceeds the economic incentive any author needs to create a work
while constraining the ability of new artists to build on the original. And
term of life plus 70 is particularly unnecessary in the case of Martin
Luther King; King did not need any economic incentive to write his eloquent
speeches, let alone a term of life plus 70.

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