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America’s Stupid Copyright Laws: ‘I Have a Dream’ Edition

martin-luther-king-i-have-a-dream-speech

One of the iconic speeches in American history is copyrighted.

Dustin Volz (“Why Martin Luther King’s ‘Dream’ Speech Is So Hard to Find Online“):

As Washington gears up to commemorate the 50th anniversary of Dr. Martin Luther King Jr.’s historic “I Have a Dream” speech later this month, one thing might be missing from the celebrations: the speech itself.

A full, unedited video clip of the speech is tougher to find than you might think, because of copyright disputes that date back almost as far as the speech itself.

“We were shocked to find that it was very difficult to find a full copy of Dr. King’s speech on YouTube,” said Evan Greer, a campaign manager at Fight for the Future, an Internet free-speech advocacy group. In January, the group posted the full-length speech on Vimeo in an act of “civil disobedience” coinciding with Martin Luther King Day. The video was promptly removed for violating Vimeo’s terms of service, Greer said, but a version on YouTube has managed to avoid detection and remains up on the site, having accumulated more than 80,000 views.

The “version on YouTube” link doesn’t go to YouTube at all but rather something called FightForThe Future.org, which illegally shares copyrighted videos out of principle.

On Internet Freedom Day we uploaded this video honoring MLK.
Within a few hours, it had been taken down because of copyright.

Copyright law says that sharing this video is illegal. Share it anyway.

Take part in a small act of civil disobedience against a broken copyright system that censors free speech.

Anyway, how in the world can a public speech given half a century ago on taxpayer property be copyrighted?

Months after the August 1963 March on Washington, King himself sued to prevent the unauthorized sale of his speech, purportedly in an effort to control proceeds and use them to support the civil-rights movement. In 1999, the King family sued CBS after the network produced a video documentary that “used, without authorization, portions of … King’s ‘I Have a Dream’ speech.” A divided Appellate Court, in reversing a lower court ruling, held that the speech was not a “general publication,” despite its huge audience and subsequent historic importance. The speech instead qualified as a “limited publication,” the court said, because “distribution to the news media, as opposed to the general public, for the purpose of enabling the reporting of a contemporary newsworthy event, is only a limited publication.”

The ruling was narrow, and CBS and the King estate settled the case before the lower court could reconsider, leaving the copyright of the speech in a somewhat confusing legal situation. A CBS press release dated July 12, 2000, discusses the agreement that allowed the network to “retain the right to use its footage of the speeches” from the march and license it to others in exchange for an undisclosed contribution to the Martin Luther King, Jr., Center for Nonviolent Social Change.

In 2009, EMI Publishing cut a deal with the King estate to help ensure that the speech was “accorded the same protection and same right for compensation as other copyrights.” EMI was sold in 2011 to a consortium headed by Sony. The King Center did not respond to requests for comment.

Now, I can understand a form of protection, common the various Creative Commons world, that would prohibit non-transformative, commercial use of the speech.  In the immediate aftermath of the speech, it seems reasonable that, if anyone is going to make money off the speech, it should be the person who wrote and delivered it. But it’s absurd that said protections would attach decades after the creator was murdered and to non-commercial use.

And we have at least another quarter century to go:

The result is that viewing the whole speech online may remain difficult until 2038, when the current copyright expires, because of laws that protect intellectual property long after the author is deceased.

That’s just crazy.

So will King’s dream be heard the day of his anniversary? That depends on where you want to view it–and how much of it you want to see. Much of what is available shows only fragments of the speech. Some, like the History Channel, note that copyright prevents the presentation of a full version.

Networks and other news organizations can air segments of the speech under the doctrine of “fair use,” because they can justify it as substantially newsworthy, Sunshine said. (CBS aired short excerpts this past weekend on its Sunday Morning news show.) But airing the entire speech–all 17 minutes–could blur those lines.

“The less you play, the easier it is to argue it’s fair use, generally speaking,” Sunshine said. And networks such as CBS are probably more inclined to pay the licensing fee than to shell out hundreds of thousands of dollars to test the waters on a fair-use claim. This creates a noticeable divide between television corporations that could afford to legally challenge the copyright protections (but may not want to, because they do not need to show the full speech) and others, who lack means to challenge that restriction, Sunshine said.

The ostensible purpose of copyright is to incentivize creation by ensuring creators can profit from their work. I’m perfectly happy that Elmore Leonard, who died this morning, was continuing to not only profit from his earlier works but motivated to create new ones right up until the end. For that matter, given that there’s plenty of money being made to this day on movies and television shows based on his work, I don’t mind his widow, ex wives, and children from getting their fair share of it; otherwise, someone else would get the money Leonard earned.

But King wasn’t a novelist or actor. While he became reasonably wealthy from his fame, the purpose of “I have a dream” was political, not commercial. It escapes me what possible rationale exists in limiting the public’s access to it.

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. C. Clavin says:

    Say hello to the invisible hand, James.

    Like or Dislike: Thumb up 8 Thumb down 0

  2. Mu says:

    The whole idea that a public address can be copyrighted takes some time to get used to.

    Like or Dislike: Thumb up 3 Thumb down 0

  3. rodney dill says:

    …because MLK Jr.’s message isn’t nearly as important as being able to profit from it.

    Like or Dislike: Thumb up 5 Thumb down 2

  4. rudderpedals says:

    @Mu: Is it any different than copyrighted lyrics to a publicly performed song?

    Y’know Mickey Mouse and Disney are far better targets for copyright complaints.

    Like or Dislike: Thumb up 1 Thumb down 0

  5. Tyrell says:

    Well, there are a bunch of school kids that owe somebody some money.

    Like or Dislike: Thumb up 0 Thumb down 0

  6. rodney dill says:

    @rudderpedals: …or Warner Brothers…. (harumph harumph harumph)

    Like or Dislike: Thumb up 0 Thumb down 0

  7. EdMigPer says:

    I can almost sympathize with the Kings. You can see people trying to misconstrue MLK all the time, especially among the conservative white nationalists who would argue MLK would be standing beside them. They quote MLK to make bad arguments that “the black agenda” has gone too far and the door has swung too far to favor blacks that it’s shut the door in the face of white people.

    Like or Dislike: Thumb up 3 Thumb down 4

  8. James Joyner says:

    @EdMigPer: But none of that is precluded by copyright law. People retain an absolute right to quote and do commentary based on King’s speeches and writings.

    Like or Dislike: Thumb up 4 Thumb down 0

  9. RGardner says:

    When King County WA (Seattle) decided to change who it is named after:
    {Wikipedia] “The county was named after William Rufus King who was Vice-President when the Washington Territory was created. In 1986 a motion was introduced by Ron Sims (a black Democrat from Seattle), and Bruce Laing (a white Republican from suburban Renton) to change the namesake to Martin Luther King, Jr.[” they had to pay the ML King Estate to use MLK’s image.

    $$$

    Like or Dislike: Thumb up 0 Thumb down 1

  10. PD Shaw says:

    @EdMigPer: Its easier to misconstrue a speech when we create incentives to only play a small portion of it.

    Like or Dislike: Thumb up 8 Thumb down 0

  11. mantis says:

    And we have at least another quarter century to go:

    At least is right. Congress will pass another extension just before Steamboat Willie is about to enter public domain again in 2023 (for the 5th time).

    Like or Dislike: Thumb up 11 Thumb down 0

  12. Jenos Idanian #13 says:

    I’m going to be the contrarian here. What’s being protected here is not the speech itself, but this particular video of the speech. Similarly, if I attend a public event and take pictures at it, I own the rights to my own photos, regardless of who is pictured.

    In this particular case, I think the family should make some public access to the video free, but it’s their right.

    Like or Dislike: Thumb up 2 Thumb down 0

  13. JKB says:

    @C. Clavin: Say hello to the invisible hand, James.

    Congress’ hand is not very invisible in all this. So perhaps you should clarify your comment.

    Limited copyright has value but the massive extensions subvert the value of copyright to society.

    Like or Dislike: Thumb up 2 Thumb down 2

  14. al-Ameda says:

    Protect use of the images that include MLK indefinitely (you know that someone in the King family will apply to extend copyright protection each time it comes up)?

    Not at all what copyright laws were intended for.

    Like or Dislike: Thumb up 3 Thumb down 0

  15. JKB says:

    The irony is, if the copyright does expire in 2038, then the speech will enter the public domain as little more than a historical curiosity as pretty much everyone who could remember its delivery will be either dead or near-death.

    Perhaps the family can make some money in the meantime off old people who want to remember when…

    To bad, the speech would go along way to countering the current civil rights scammers.

    Like or Dislike: Thumb up 1 Thumb down 6

  16. PD Shaw says:

    @Jenos Idanian #13: “What’s being protected here is not the speech itself, but this particular video of the speech.”

    No, I don’t think the Kings own the video — they are claiming they own the speech. The court decision isn’t 100% clear, but I think it supports that interpretation:

    On the afternoon of August 28, 1963, the Southern Christian Leadership Conference (“SCLC”) held the March on Washington (“March”) to promote the growing civil rights movement. The events of the day were seen and heard by some 200,000 people gathered at the March, and were broadcast live via radio and television to a nationwide audience of millions of viewers. … The SCLC had sought out wide press coverage of the March and the Speech, and these efforts were successful; the Speech was reported in daily newspapers across the country, It was broadcast live on radio and television, and was extensively covered on television and radio subsequent to the live broadcast.

    On September 30, 1963, approximately one month after the delivery of the Speech, Dr. King took steps to secure federal copyright protection for the Speech under the Copyright Act of 1909, and a certificate of registration of his claim to copyright was issued by the Copyright Office on October 2, 1963. Almost immediately thereafter, Dr. King filed suit in the Southern District of New York to enjoin the unauthorized sale of recordings of the Speech and won a preliminary injunction on December 13, 1963.

    That last part doesn’t surprise me. Another person does not have the right to appropriate my image or speech to make money without my consent. That’s why t.v. shows often blurs out people in the background who don’t sign waivers. I think what the King family is arguing is that King is like a rock star and his public performance doesn’t consent to circulation of bootleg tapes. That might make sense for a live act that might not want to compete with recordings which might reduce ongoing ticket sales, but here it seems odd.

    Like or Dislike: Thumb up 7 Thumb down 0

  17. John Burgess says:

    @C. Clavin: I can see Congress — who created the Copyright laws — pretty clearly, actually.

    Like or Dislike: Thumb up 0 Thumb down 1

  18. PD Shaw says:

    @PD Shaw: I forgot a link to the case, here.

    Here is probably the most relevant bit though:

    One segment [at issue in the lawsuit] was devoted to “Martin Luther King, Jr. and The March on Washington.” That episode contained material filmed by CBS during the March and extensive footage of the Speech (amounting to about 60% of its total content). CBS, however, did not seek the Estate’s permission to use the Speech in this manner and refused to pay royalties to the Estate. The instant litigation ensued.

    Like or Dislike: Thumb up 2 Thumb down 0

  19. mantis says:

    @John Burgess:

    I can see Congress — who created the Copyright laws — pretty clearly, actually.

    Indeed. This isn’t the invisible hand, it is repeated intervention by Congress to protect the profits of major media companies at the expense of culture, history, and common sense. We have gone far beyond protecting the creators’ right to own their work, and thus promoting and supporting a healthy creative culture (this is the purpose of copyright), and now have a system that achieves the opposite, inhibiting and punishing creative reuse and interpretation of historical creative works (the basis of a truly massive part of human culture). Not to mention granting individuals or estates exclusive ownership of history, as in the case of this speech.

    Like or Dislike: Thumb up 5 Thumb down 0

  20. There is nothing to stop the copyright holders from cutting deals on reasonable terms with media companies that make some $$$s and gives the speech much more widespread availability. That the holders, for whatever reason, are unwilling to do so became clear to me when I picked up a legal videotape of the speech and sold it for $75.00 on Ebay. I was shocked — when I bought the tape I figured the only reason it would have resale value was because it was new in package. Used videotapes of most any other copyrighted material sold for a couple a bucks at the time. The problem isn’t the law — it’s the copyright owners not wanting to play ball on reasonable terms.

    Like or Dislike: Thumb up 0 Thumb down 0

  21. Andre Kenji says:

    @Let’s Be Free:

    The problem isn’t the law — it’s the copyright owners not wanting to play ball on reasonable terms.

    No. These bizarre examples that appears on blogs(Like the fact that Happy Birthday to You is under copyright in the US or that the Anthem of the Socialist International is under copyright in France) are precisely that: anecdotes. But the problem is larger than that: many shows that features musical performances can´t be distributed in full because the distributor does not have the right for these songs in certain countries, that creates all kinds of hassles for researches and archivists, many shows can´t be redistributed because it´s impossible to find all the copyright owners of the work.

    In the US, you see copyrighted work being treated as a commodity or a investment, with families selling whole portfolios without considering how the artist would want his work to be treated. In other countries, you see families controlling how these pieces of art. It´s not rare for relatives that never cared about the artist when he was alive exerting close control about his work.

    Besides that, the fact that most Copyright Legislation were written to favor specific economic groups(Like Disney) is would be a sole reason to consider them bad legislation.

    Like or Dislike: Thumb up 2 Thumb down 0

  22. OzarkHillbilly says:

    @JKB:

    Congress’ hand is not very invisible in all this. So perhaps you should clarify your comment.

    The “invisible hand” has nothing to do with Congress. Just to clarify his comment.

    Like or Dislike: Thumb up 1 Thumb down 0

  23. C. Clavin says:

    “…I’m going to be the contrarian here…”

    No shit.

    Like or Dislike: Thumb up 2 Thumb down 0

  24. James, did you know that Nineteen Eighty-Four is copyrighted in the United States? But you can read it for free, in the public domain, in other English speaking countries such as Canada and Australia?

    Welcome to our completely ridiculous copyright system.

    Like or Dislike: Thumb up 0 Thumb down 0