The emotional copyright issue over Dr. King’s speech
On the 50th anniversary of Dr. Martin Luther King’s “I Have A Dream” speech, the argument continues about who should own the video rights to the speech itself and where the video can be shown.
Currently, Dr. King’s estate owns the rights to the video of the 1963 speech after an 11th Circuit Court ruling in 1999 called Estate Of Martin Luther King v. CBS, Inc., and it owns the rights until the year 2038.
The Circuit Court ruling reversed a lower court decision that the King video was in the public domain as a “general publication.”
The Circuit Court noted that Dr. King had received a copyright on the speech in October 1963 and the speech given on August 28, 1963 was a performance subject to copyright protection.
“A performance, no matter how broad the audience, is not a publication; to hold otherwise would be to upset a long line of precedent. This conclusion is not altered by the fact that the Speech was broadcast live to a broad radio and television audience and was the subject of extensive contemporaneous news coverage,” the court said.
In recent days, journalists have been critical of the King estate for allegedly making it difficult for people online to see the entire 17-minute speech from 1963.
The National Journal had a full-length story of its own about the copyright battle over the video from Dustin Volz.
“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,” said Volz.
Another article on the marketing website The Drum discussed the copyright issue.
“His speech ‘I have a Dream’ is considered one of the most important cultural and historical moments of the 20th Century, yet is in incredibly difficult to find, listen to, or watch in its entirety,” said The Drum, in an interesting article about copyright law.
The Drum interviewed Jennifer Jenkins, director of the Center for the Study of the Public Domain at Duke University’s School of Law, who shed some light on the copyright issue.
“Most people have a strong intuitive sense that, particularly with the 50th anniversary coming up, or every year on MLK Day, that any kid, any educator, anybody should be able just to Google it online and watch the speech in its entirety,” Jenkins said. “It’s a piece of history, and I think most people think that he would have wanted it to be available [for free]—maybe not available for use in a commercial, but certainly available for educational and journalistic purposes or documentaries about the civil rights movement.”
Constitution Daily did Google the speech and we were able to find it—in five seconds. It was the entire 17-minute version for free on YouTube.
Better yet, we went to the official King Center website, which has an entire section devoted to the speech at http://officialmlkdream50.com.
King Center site features the same 17-minute free YouTube clip of the entire speech, which was uploaded in 2011 by a user who has more than 3 million views on the clip. It took us about one minute to find it.
So why is there the perception that the video isn’t available easily online, when in fact it is?
The argument has more with the fact that the video isn’t in the public domain, where it can be uploaded by numerous people, or used by television and video producers without compensation to the King estate.
The video is available for free online when the King estate allows it to be shown, which is its legal right. It could file a “take down request” with YouTube and it hasn’t for the YouTube video that’s on the King Center’s website and several other YouTube clips.
A group called Fight for the Future posted two versions on the King speech video this January: One video was on YouTube and the other was on Vimeo, a popular sharing site. The Vimeo version was taken down by that service within hours; the YouTube version remains online.
In a separate interview with Mother Jones, Jenkins said the fact that the video is on YouTube doesn’t address a key point.
“That doesn’t mean it’s guaranteed or that it’s permanent,” she said. “Whereas if it were in the public domain, anybody could put it up and no one would have the right to take it down.”
And there is one point that the court didn’t address in 1999: claims that broadcasting all or part of the video would fall under the doctrine of “fair use.”
“It would be inappropriate for us to address CBS’s other arguments, e.g., fair use and the First Amendment, because the district court did not address them,” the court said at the time.
Fair use is a problematic legal doctrine, which allows publishers to use brief parts of copyrighted material if there is a public benefit.
But for now, the debate over the King video will center on the value of placing King’s speech, subject to editing, in the public domain, compared with the legal right of his estate to protect his image—and a copyright granted to Dr. King himself nearly 50 years ago.
Scott Bomboy is the editor-in-chief of the National Constitution Center.
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