I’ve been thinking a lot about big dreams lately. Every great idea, invention, story or plan starts with a dream and the vision to accomplish that dream. I personally think that a dream is one of the most powerful things in the universe because all else stems from that one creative spark. I guess that is why I love the Copyright statute so much. It promotes and helps dreams and the dreamers who have them. To borrow from one of my favorite Disney songs “A Dream is a wish your heart makes.”
Lately, the dream that has been on my mind is the one Dr. Martin Luther King, Jr. shared fifty years ago this week on August 28 during the March on Washington. Like me, when historical anniversaries occur, you probably seek out news stories, footage via YouTube, and photographs from the internet. Until I began searching for a video clip of the Dream speech in its entirety, it never occurred to me that the speech, conducted on federal property, in front of nearly 250,000 people, broadcast via radio and television would not be in the public domain. However, a quick search revealed that the Dream speech is subject to copyright protection, which is held by the King Family with music publisher EMI, now Sony. If you do see the speech broadcast in its entirety, you can be guaranteed a license was negotiated, a contract put in place and fees for that license/permission were paid. I am certain we discussed this in law school; however, it had slipped my mind over the years. As it stands now, the entirety of the speech will not enter into the public domain until the year 2038, 70 years after Dr. King’s death.
It got me wondering if copyright law has turned from a tool for dreamers to a tool made up of complexities/nightmares? And, wondering how did we get to a copyright lasting on a speech that was delivered on federal property, to over 250,000 in attendance and broadcast via television and radio transmission?
The Dream speech is controlled under the 1909 Copyright Act because it was created in 1963. For works published between 1909 and December 31, 1977, a slightly different set of copyright laws apply than to works created under the current 1976 Copyright Act. A common issue with works created during the time period between 1909 and December 31, 1977 was whether the creative work had been published.
Courts interpreted the idea of publication differently. Some courts would say that publication without notice that it was subject to copyright protection would mean the work would fall into the public domain. They would also say that a copyright had been “forfeited” if it received “general publication.” It is clear to see how one would assume under those guidelines, being that the speech was delivered on federal property, and if no announcement was made that the speech is subject to copyright protection, one could draw the conclusion that the copyright in the Dream speech had been forfeited and belonged in the public domain for all to use.
In 1999, the 11th circuit found that the publication was not a “general publication,” but rather a “limited publication” for limited purposes. The distribution of the Dream speech to journalists was not a publication, but was only distributed for the very limited purpose of news reporting. Second, the court found that Dr. King’s recital of the Dream speech was a performance of the speech and performances consistently are not considered general publications. An interesting point is that if Dr. King had been a “officer or employee of the U.S. Government” at the time the speech was delivered and giving the speech had been part of his “official duties” then it would not be protected under Copyright law under 17 U.S.C. Section 105, which does not allow copyright protection for any work of the United States Government.
A quick search revealed many articles, news stories and commentary on the fact that a copyright still exists in the speech. I got the sense from reading the articles that people were not necessarily against there being a copyright on the speech, but were more appalled that a for-profit company managed the rights and licensing fees. In the article I Have a Copyright: The Problem with MLK’s Speech, Lauren Williams recounts the well-known lawsuits by the King estate against media entities like CBS. Williams also pointed out that while King’s heirs may just want to protect the image of Dr. King that an entity like EMI is in the business of making money from licensing content. Those two goals may not always align. While reading her article, I could not help but wonder if Williams’s opinion would change if the only licensing scheme set-up was through a non-profit to further some altruistic or educational goals, as opposed to a for profit company.
Another issue I met was this idea of copyright expiration being a moving target. There seemed to be this overwhelming need for copyright to be upheld, but only for a limited amount of time. In Why Martin Luther King’s “Dream” Speech is So Hard To Find Online Dustin Volz points out that the current date the speech is set to fall into the public domain in the year 2038. However, that date could shift to an even later date depending on lobbying groups and if the copyright statute changes.
The most ironic part on the copyright debate surrounding the speech, found during my research, is that the Dream speech was actually not original to the March on Washington, as has been documented in many sources. At its core, it is arguable it was improvisation and utilized the cornerstone ideas of copyright law – fair use, derivative works and transformation. It was parts of different speeches that Dr. King had given at different events prior to the March on Washington. It was not a pre-prepared, pre-written speech, but was more off the cuff. It also references other historical events, documents and speeches. Without the ability for the copyright statute to allow others to take existing material and combine it with new elements to create something transformative, Dr. King’s Dream speech may never have been created without fear of facing copyright infringement of others.
So, are results like the above issues surrounding the Dream speech making copyright law a dream or a nightmare? Like all dreams, if a wrong turn is made a nightmare can result. I choose to view the Copyright statute and use it as a tool for dreamers.
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