Copyhype

One of the more unfortunate outcomes to emerge over the past decade from copyright skeptics is criticism of the Martin Luther King, Jr. estate, and their maintenance of his copyrighted books and speeches—his legal property—that they inherited from him.

In 2005, for example, digital activists Downhill Battle (many of whom would later form activist group Fight for the Future) protested copyright law by posting civil rights documentary “Eyes on the Prize” online without permission. The film was unavailable on television or home video at the time because the original licenses for some of the material did not extend to those uses (the documentary has since become available again).

More recently, during the SOPA debate in January 2012, Vice took the opportunity to tie that bill and the copyright status of King’s legacy together. It called King’s “I Have a Dream Speech” “the rhetorical equivalent of a national treasure or a national park,” decrying the fact that it is protected by copyright and asking “What would King have made of all this, and of SOPA?”

Since then, it seems no opportunity has been wasted to delegitimize the King estate for political points. A year later, Vice was back to report on the one year anniversary of the defeat of SOPA and another online protest by Fight for the Future. This time, the group sought to upload a video of King’s “I Have a Dream” speech to YouTube. The group wrote that “Had SOPA and PIPA passed last year… you could have gone to jail for sharing this video.” Vice wrote that this protest “Echo[ed] the civil disobedience of King.”

On the fiftieth anniversary of King’s “I Have a Dream” speech (August 2013), a new round of articles appeared, making the same complaints that, yes, you could license the speech, or buy a copy on DVD (the Atlantic noted that, at the time, Amazon currently had a copy for $13.41), but shouldn’t it be free?

Most recently, the issue has come to the forefront again with the release of the film Selma, a narrative of the 1965 march from Selma to Montgomery. Like any film adaptation—whether based on fictional or nonfictional source material—creative liberties must be taken. In the case of Selma, these included paraphrasing some of King’s speeches.

A Washington Post article on the film explains:

Working with an original script by Paul Webb, [director Ava] DuVernay carefully paraphrased King’s oratory, so that the words [actor David] Oyelowo speaks in the film have King’s cadence and meaning, even when they’re not literal.

The reason is simple: “We never even asked” for the rights to King’s speeches, said DuVernay during a recent visit to Washington. “Because we knew those rights are already gone, they’re with Spielberg, and secondly we found a way to do it where we didn’t have to ask for permission, because with those rights came a certain collaboration.”

The result is a fascinating portrait that both eerily captures King, but also feels just a tick off from impersonation. Oyelowo doesn’t physically resemble the civil rights leader, nor does his voice possess quite the ringing timbre most people associate with one of the greatest orators of the 20th century. But the filmmakers’ decision to eschew mimicry liberates “Selma” from being mere hagiographic waxwork, or a series of speeches and set pieces, and allows it to be an authentic drama with fully realized, grounded characters.

But despite the fact that the above shows the filmmakers never sought rights to the speeches, didn’t want them, and made a film that didn’t suffer as a result, copyright critics took the opportunity to complain that copyright law “forced” the filmmakers to paraphrase the speeches. GigaOm reporter Jeff John Roberts opined that this is “because the King family aggressively enforces copyright at all turns, unleashing lawyers in the direction of anyone who seeks to use the civil rights icon’s speeches or images without permission.” Roberts argued that “the root issue here is entirely about money, and the King estate wants as much as it can get” and concludes that the deeper problem is that “copyright protection lasts for far, far too long.”

In honor of Martin Luther King, Jr. Day, I want to point out several reasons why these efforts to begrudge the legacy King left his family are misguided. While I’ve yet to find any King remarks directly about copyright—I’m certainly not claiming to speak for him or his family—I think two things are clear.

King and Copyright

First, King attached importance to his literary property by actively administering and enforcing his copyrights during his life.

In a November 20, 1964 letter, King’s literary agent, the notable Joan Daves, wrote King regarding a number of copyright matters, including preparations to ensure the copyright in his Nobel Prize lecture was secured. Daves concluded, “I hope that neither you or your office will find cumbersome my insistence that your writings and your speeches be protected properly by copyright. I am sure there will come a time when we will all be very glad of having organized these matters and of your having control over the further use of your works.”

King apparently agreed, as other correspondence shows that Daves actively licensed King’s work around the world, administered royalties, and fielded permission requests for reprints and translations. This correspondence shows a careful balancing of King’s various interests. For example, one letter denies a request to reprint King’s letter from the Birmingham Jail in a French book because, as Daves explains, “The letter in question will form a very important part in a forthcoming book by Dr. King and we feel that we cannot distract from its impact by allowing it to be published elsewhere before a French edition appears.” Another one grants permission to translate and publish a Marahati edition of Why We Can’t Wait “without a fee” after a request from Dr. Moray explaining how social problems in India were similar to the American problems King addressed.

And King was not shy in asserting his rights when they had been infringed. The copyright in King’s “I Have a Dream” speech, delivered August 28, 1963 at the Lincoln Memorial, was registered little over a month later on September 30. And only a few days later (October 4th), King filed a lawsuit against 20th Century Fox Record Corporation and Mister Maestro, Inc. for selling records of the speech without King’s consent.¹King v. Mister Maestro, Inc., 224 F. Supp. 101 (SDNY 1963). The District Court granted a preliminary injunction in December after concluding, “There are thus no principles which prevent relief to plaintiff from what seems the unfair and unjust use by defendants of his speech and his voice.”²Id. at 108.

Publication of King’s work is what helped disseminate his ideas and benefit the public, but the ability to control and benefit from that publication is what allowed him to continue his work until he was brutally killed in April 1968 (and what allows his family to continue that work today).

From Civil Rights to International Human Rights

Second, the ability of someone to benefit from their labor, as King did through copyright, is consistent with his views on economic justice and individual dignity.

On the Fourth of July, 1965, King delivered an address to the Ebenezer Baptist Church called “The American Dream.” He begins by noting the spirit “of the founding fathers of our nation,” who created a system of government distinct from “any totalitarian system in the world” by saying “that each of us has certain basic rights that are neither derived from or conferred by the state.” The Declaration of Independence, said King, is a “profound, eloquent, and unequivocal” expression of “the dignity and the worth of human personality.” He adds, “The American dream reminds us, and we should think about it anew on this Independence Day, that every man is an heir of the legacy of dignity and worth.”

However, continued King, “We are challenged more than ever before to respect the dignity and the worth of all human personality.” This universal recognition of the equal dignity of all human personality is what, said King, made segregation and racism morally wrong. But, he would go on to say, it also meant that economic inequality and poverty must be addressed. “This is why we must join the war against poverty,” said King, “and believe in the dignity of all work.”

The “spirit of the founding fathers” that King speaks of was reflected in copyright discussions during the founding period. When the Continental Congress recommended in 1783 that the States pass laws securing copyright of authors, it did so after a committee consisting of James Madison, Hugh Williamson, and Ralph Izard were “persuaded that nothing is more properly a man’s own than the fruit of his study.”³24 Journals of the Continental Congress 326. And some states, such as Massachusetts, explicitly noted in their subsequent copyright acts that the “legal security of the fruits of [a person’s] study and industry … is one of the natural rights of all men.”⁴Massachusetts Copyright Statute, Massachusetts (1783), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org.

Just as the experiences in the American colonies under British rule led to the Declaration of Independence, the experiences of the free world during the second World War led to an international declaration of rights.

Following World War II, the United Nations was formed to promote international cooperation, and in 1948, it drafted the Universal Declaration of Human Rights (UDHR), the first global expression of human rights. Among its articles is one that states, “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

This provision generated some debate during the drafting process, in part because it encompassed moral rights in addition to economic rights.⁵Peter K. Yu, Reconceptualizing Intellectual Property Interests in a Human Rights Framework, 40 University of California, Davis 1039, 1054 (2007). During one of the final rounds of drafting, French, Mexican, and Cuban delegates reintroduced the above language for inclusion in the declaration. ⁶Meeting records also note, “While it accepted the principle which they expressed, the United States delegation thought that they would be out of place in the declaration, more especially since they dealt with a specific aspect of the rights of property already covered by article 15.” Meeting records summarize the Mexican delegate as arguing:

The Committee had already recognized the rights of the wage earner, the family, the mother and the child; if it did not wish there to be a serious omission in the text it was drawing up it must now proclaim the rights of the individual as an intellectual worker, scientist, or writer; in other words, the rights of aIl those who contributed to the progress and well-being of humanity.

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If the United Nations decided to include such a provision in the Declaration of Human Rights, it would be proclaiming to the world, with all the weight of its moral authority, its consciousness of the necessity of protecting all forms of work, manual as well as intellectual, and of safeguarding intellectual production on an equal basis with material property.

This language was eventually adopted by the Committee and included in the Declaration.

I note this not only because of the parallels in principles between the supporters of intellectual worker protections and King, but because King actively worked and inspired those who worked on seeing such principles recognized at the international level.

Calling King an “international human rights leader,” Henry J. Richardson has written that King “fused the discourses of civil rights and human rights” and “borrowed directly from international human rights law doctrine” in his speeches.⁷Henry J. Richardson, Dr. Martin Luther King, Jr. as an International Human Rights Leader, 52 Villanova Law Review, 471 (2007). And toward the end of his too-short life, “King had expanded his human rights leadership by moving, in concrete ways, to emphasize economic rights as human rights.”

Roger Alford at Opinio Juris has written that King’s work directly inspired those who struggled to achieve the same goals of racial and political equality at the international level. He notes that by 1964, membership in the UN had grown to 115 members, with 75% coming from the developing world. These delegates “were greatly influenced by Martin Luther King’s struggle against racial discrimination within the United States,” and worked to implement the UDHR into treaties. Alford writes, “The immediate result was the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (CERD)” and “The success of CERD broke the stalemate that had prevented completion of the work on the other major human rights covenants,” including the International Covenant on Economic and Social Rights (ICESR).

Article 15 of the ICESR implements the UDHR’s provision on intellectual property by requiring State Parties to recognize the right of everyone “To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

On this day, we honor and celebrate the tremendous legacy that Dr. Martin Luther King, Jr. left. King’s legacy hopefully inspires us all. But his work is not like “a national park” in the sense that it was bought and maintained by the public; indeed, it came about through great personal sacrifice, and King paid the ultimate price for his work when he was assassinated. It seems a bit presumptuous to say the public has a greater claim to this work than King’s own family, and it seems odd to say that the more lasting and important one’s work is, the less legal protection it should receive. More importantly, it seems better to focus on the content of the message King left us rather than the cost of his DVD.