To Be Judged Not By the Color of Their Skin, But By the Content of Their Legal Briefs

by Greenberg Glusker Fields Claman & Machtinger LLP

[Ed. Note:  In honor of Martin Luther King, Jr. Day, we'd like to re-run one of our favorite seasonal blog posts, thereby honoring Dr. King's legacy not only as a visionary and civil rights leader, but also as a copyright litigant.  Don't judge us; we're lawyers, we can't help ourselves.]

“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.”

These words will be heard many times this week as we celebrate the birthday of Rev. Dr. Martin Luther King, Jr. They are, of course, from King’s famous 1963 “I Have a Dream” speech. But as you celebrate his life and listen to his words, ask yourself this question: have you ever heard the whole speech? Not just the key excerpts that will be repeatedly broadcast on the news, but the entire, seventeen-minute address as it was given to a crowd of 200,000 in front of the Lincoln Memorial?

Ever wonder why it’s not shown on TV more often?

The answer, my friends, is copyright. Because while Dr. King may have dreamed of a world without racism, even he wouldn’t dare to dream of a world without lawsuits.

Yes, in addition to being a noted clergyman and civil rights leader, Dr. King was a copyright litigant.

Shortly after his “I Have a Dream” speech was delivered in August 1963, King moved for a preliminary injunction preventing record companies from selling copies of the speech.  The defendants, Mister Maestro, Inc. and 20th Century-Fox Records argued that, because King had distributed advance copies of the speech to the press without restricting them from reproducing or distributing it further (and without the copyright notice required under copyright law at the time), the speech was in the public domain.

(To those of you who thought that it was only Dr. King’s estate that was concerned about protecting rights in the “I Have a Dream Speech,” and that King himself would have gladly dedicated it to the public, not so:   King declared in the Mister Maestro case that “he did not intend his speech ‘to be generally distributed or generally made available to the public at large’ but to be ‘specifically limited in use to assisting the press coverage of the March by the press.’”  As a legal matter, King’s intent was irrelevant to the issue of whether there was a publication without notice, but his testimony is an interesting glimpse into his thoughts about copyright protection.)

The Mister Maestro court noted that, under the 1909 Copyright Act, while the “general publication” of a copyrighted work without the appropriate copyright notice would result in the copyright being forfeited, a “limited publication” would not.

What’s the difference? Well, a general publication occurred when a copyrighted work was made available to members of the public at large, without regard to their identity or what they intended to do with the work. A limited publication, on the other hand, was one that communicated the work to a select group for a limited purpose, without any right to further distribute it.

Of course, that distinction is no longer relevant under the 1976 Copyright Act that governs copyrighted works created in the last 30+ years. But the 60s were a crazy time for this country, a time of great change and confusion, a time when a lunch counter could refuse to serve you on the basis of your skin color, and a time when a speech delivered to 200,000 people and broadcast to millions more was not, legally speaking, a publication to the “public at large.” (And you thought the drug culture was wild back then!) Under the 1909 Act, the oral delivery of a speech, just like the broadcast of a television script or the public performance of a song, did not constitute a general publication. The distribution of copies of the speech, on the other hand (which King had done in the press tent) was considered a publication which would divest the copyright, unless it was sufficiently limited. The court in Mister Maestro held that there was nothing to suggest that copies of King’s speech had been offered to the public at large (even though King had placed no restrictions preventing the press from doing just that). Result: copyright saved, injunction granted.

The same issue was litigated more than 30 years later. King’s estate sued CBS, which had produced a documentary containing 60% of his “Dream” speech. Because Mister Maestro was a district-level case from New York, it was not binding on the CBS district court sitting in Atlanta. CBS brought a summary judgment motion to establish that the speech was in the public domain. This time, the district court determined that the circumstances under which King delivered, reproduced and disseminated the speech constituted a general publication, divesting King of his copyright. (Somehow, even in the 1990s, the northern and southern states could still find ways to disagree about Dr. King.) But the Eleventh Circuit Court of Appeals later reversed, holding that CBS had not adequately established that Dr. King engaged in a general publication of his speech, and the parties later settled the case. Once again, King’s copyright was saved. (Good thing they didn’t litigate in Arizona, I guess.)

The King estate has, in the ensuing years, been vigilant in protecting the rights it claims in the “I Have a Dream” speech. In 2009, CNN obtained a license from the King estate to air the speech in its entirety on Dr. Martin Luther King Jr. Day. Other radio and TV outlets were left to play only short excerpts, which are protected under copyright’s “fair use” doctrine.

Interestingly, one place you can find the complete speech is on YouTube. These uploads are no doubt posted without the King estate’s permission, although at least one of them has amassed over 10 million hits in the past four years, suggesting that the estate has not sent a takedown notice under the DMCA. But just in case, we’re not going to be the ones to link to it. You’re grown-ups, you can find YouTube yourselves.

So as you enjoy the long weekend ahead of us, take some time to sit back, reflect, and really honor Dr. King’s memory in a way he would recognize and appreciate: read a case on copyright law and try extra hard not to infringe any copyrights. I’m sure the good doctor would appreciate it.


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.

© Greenberg Glusker Fields Claman & Machtinger LLP | Attorney Advertising

Written by:

Greenberg Glusker Fields Claman & Machtinger LLP

Greenberg Glusker Fields Claman & Machtinger LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.