Martin Luther King, Jr. and “Publication” under the 1909 Copyright Act

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition

Last year marked the 50th anniversary of Martin Luther King, Jr.’s “I have a dream” speech, delivered during the March on Washington on August 28, 1963.  It also marked the 50th anniversary of the first of many copyright lawsuits over that speech.

King v. Mister Maestro, Inc.

AlbumJust after the speech was delivered, two record companies — including “Mister Maestro, Inc.” — began selling unauthorized recordings of it.  Dr. King was not philosophically opposed to his speeches being recorded and sold — in fact he had already been in discussions with Motown Records — but he wanted to be the one doing the selling.  Dr. King registered the text of the speech with the copyright office on September 30, 1963, and then promptly brought suit against the record companies in the Southern District of New York.

Under the law in effect at the time, the 1909 Copyright Act,  Dr. King was not entitled to statutory protection if he “published” the work without first observing certain statutory formalities, such as affixing to it a copyright notice.  The record companies argued that Dr. King “published” the speech by circulating mimeographed copies to the press at the March (with no copyright notice), and by delivering it publicly that day.  But the court held that mere performance of a work, such as the delivery of a speech, was not a “publication.” Moreover, distribution of copies to the press, as opposed to the general public, was only a “limited publication” which did not deprive Dr. King of his statutory protection.  On December 13, 1963, the court issued an injunction against further distribution of the recordings.

Estate of King v. CBS

wallaceThe issue was revisited in 1998, after CBS aired over 60% of the speech in “The 20th Century with Mike Wallace” documentary series, and the Estate of Dr. King brought suit.  Judge William O’Kelley of the Northern District of Georgia held that the New York court had ruled incorrectly back in 1963, and that Dr. King’s public delivery of the speech alone was enough to consider it “published.”  While normally performance was not sufficient to constitute publication, the judge held that “performance coupled with such wide and unlimited reproduction and dissemination” thrust the work into the public domain under the 1909 Act.  In fact, the judge found that Dr. King’s speech was “the poster child for general publication” and granted summary judgment to CBS.

The Estate of Dr. King, never one to shy away from additional legal fees, appealed the matter to the 11th Circuit Court of Appeals.  The 11th Circuit reversed and remanded for trial, holding that public delivery of the speech was not a publication because performance alone – no matter how widespread – does not allow the general public to make unrestricted copies or otherwise exercise dominion over the work.

But the news wasn’t all bad for CBS. The 11th Circuit threw the network a bone in its opinion by gratuitously noting that CBS had located two pieces of potentially game-changing evidence which would help it at trial.  First, CBS had witnesses prepared to testify that March organizers distributed mimeographed copies of the speech to the general public, not just to the press. Second CBS had located a newsletter by March organizers, distributed in September 1963, in which the full text of the speech was published.  Shortly after the matter was remanded for a jury to consider this evidence, the parties settled for an undisclosed sum.

And what about fair use, which is supposed to protect “criticism, comment, news reporting” and the like?  Well, fair use was not codified as a defense until 1976, so it didn’t come up during the 1963 case. CBS later raised the fair use defense during the 1998 Georgia case, but neither the trial court nor the 11th Circuit ever reached the issue.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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