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
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[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.

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