Meera Nair

of King and copyright

In Posts on August 26, 2013 at 8:37 pm

… We are not going to Washington to intimidate any congressman or any senator. It will give a large number of people the opportunity to articulate their longings and aspirations for freedom, their desire to see meaningful forthright civil rights legislation in this session of Congress. And, of course, we also intend to arouse the conscience of the nation over the economic plight of the Negro one hundred years after emancipation, and I think it can have a great impact. I think it will dramatize the issue. It will have educational value in that it will allow many people to see and understand the continued indignities and injustices which Negroes confront all over the nation.” (Emphasis in original transcript.)

So said Dr. Martin Luther King, Jr., in a televised discussion aired by National Educational Television (predecessor to PBS) in July 1963. With King were four other prominent members of the Civil Rights movement: James Farmer (Congress of Racial Equality), James Forman (Student Nonviolent Coordinating Committee), Roy Wilkins (National Association for the Advancement of Coloured People) and Whitney Young (National Urban League). King represented the Southern Christian Leadership Conference; the discussion was hosted by Dr. Kenneth Clarke of City College of New York.

King’s predictions now seem tame. “Large number of people”; over 200,000 people took part in the March on Washington and converged on the National Mall. “Great impact”; the contributions of all the speakers, performers and participants gave strength to the advancement of civil rights, with King’s speech becoming the defining moment of the day. A speech written and rewritten many times, and still altered in the moment of delivery, it is recognizable far beyond American borders.

“It will have educational value … .” Indeed, yes. The day forced a nation to confront problems that many preferred to ignore. In terms of King’s own composition, the words are a delight to pore through. The skill with which other literary works are invoked convey not only the aspirations of those works, but the style of their writers as well. Even non-Americans cannot miss the allusion to Abraham Lincoln’s opening lines of the Gettysburg Address, nor can we miss the obvious wording taken from the U.S. Constitution. The hint of Shakespeare with a summer of discontent sits alongside a Biblical invocation of redemption through suffering. And the call to non-violence is a tribute to Mohandas K. Gandhi and the Indian Independence movement. King’s plea: “Let us not seek to satisfy our thirst for freedom by drinking from the cup of bitterness and hatred,” brings to mind the closing line of Gandhi’s speech Quit India: “At a time when I may have to launch the biggest struggle of my life, I may not harbor hatred against anybody.”

However, the fullest extent of appreciation for King’s speech is not in the wording alone. It is the delivery that raises the speech to its iconic status. The drama that accompanies the language does full justice to King’s occupation as a black pastor from the South. The impact of the words are heightened, not only by the tenor of his voice, but his cadence and seeming artlessness that belies the meticulous care that went before.

King obtained copyright upon his speech, and pursued action against infringers. Following his death, his estate opted to do the same. King used proceeds from licensing of his writings to support the civil rights movement; his family continues to hold that cause dear. Yet it strikes many as curious that news organizations and documentarians were charged with infringement, while lucrative advertising revenue was accepted. Alec Pasternak (Motherboard, January 2013) writes:

But while legal scholars might defend the family’s legal right to King’s legacy — few would argue with the family’s right to earn proceeds from that legacy — others focus on the larger, obvious point: whether or not King would have wanted his ideas used in advertising, he certainly wouldn’t have wanted them to be kept out of documentaries about the history of the civil rights movement …

It is the purview of copyright holders to use their rights as they wish, what remains to others, is to actively pursue legitimate unauthorized use through fair dealing and fair use.  Unfortunately, this avenue was abandoned early on.

In 1994 CBS produced a series titled “The 20th Century with Mike Wallace.” In one episode, approximately 60% of the coverage of King’s speech was used without permission. The Estate claimed infringement. At the district court level CBS prevailed, but that decision was overturned on appeal. (Although for differing reasons, the appellate judges agreed that no publication had occurred at the time of the speech.) With the case sent back to the district court for further review, the Appeals Court stated:

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, and because the relevant facts may not yet be fully developed.

CBS and the Estate chose to settle before the district court revisited the case. Dustin Voltz of the National Journal explains that the network was able to “retain the right to use its footage of the speeches” and license it to others in exchange for an undisclosed contribution to the Martin Luther King, Jr., Center for Nonviolent Social Change.”

Requests to license King’s copyrighted materials are handled through Intellectual Properties Management, which, in 2009, brought in EMI publishing to facilitate the work. EMI publishing was later sold to a consortium led by Sony. The involvement of such third-parties suggests a tightening of grip around access to the materials. Certainly, EMI aggressively pursued infringing copies of the speech posted to YouTube. But, in January 2013 a copy of the video was posted as form of protest and it remains online. The text of the speech, with an audio-copy, is provided courtesy of American Rhetoric. From a webpage titled “Copyright and Fair Use”, American Rhetoric states:

The site is making such material available in the effort to advance understanding of political, social, and religious issues as they relate to the study and practice of the art of rhetoric and public address, and as deemed relevant to the public interest and enlightened civic discourse.

AmericanRhetoric.com believes that the nature and use of the artifacts on this site not in the public domain or not the property of the owner of this site constitutes “fair use” of any such material as provided for in section 107 of the U.S. Copyright Act. The material on this site is intended primarily for educational (teaching, research, scholarship) purposes, is factual in nature, is transformative, and is distributed freely.

AmericanRhetoric.com has no legal authority to grant or deny permission of materials whose copyrights are held elsewhere. If you wish to use copyrighted material from this site for purposes of your own that go beyond “fair use,” you should obtain permission from the copyright holder(s).

Perhaps the King estate is tacitly allowing coverage of the speech to circulate for the greater good, safe in the knowledge that the estate is only facilitating fair use, not abandoning their own copyright. Which raises the question of why not offer their own legitimately posted video? Wishful thinking being what it is, why not unveil such an offer on Wednesday, the 50th anniversary of the March on Washington?

As wishes go, it would not be that fantastic an envisioning. Much of the King literary estate is already online. In 2011, in partnership with JP Morgan & Chase, the Estate embarked upon a massive digitization project. The result is the Digital Archive at the King Center. Within the terms and conditions, the Estate makes clear that it is retaining all copyright subject to legitimate exceptions:

Except as otherwise expressly stated herein, [works] may not be copied, transmitted, … in whole or in part in any manner without Our prior written consent, except to the extent permitted by the Copyright Act of 1976 (17 U.S.C. § 107), as amended, and then, only so long as you do not remove any copyright or other notice as may be contained in information, as downloaded. (Emphasis mine.)

“Except to the extent …”  The Estate is not aspiring to any more control than is legitimately permitted by law. This means fair dealing and fair use are worthy to the extent that people choose to pursue them.

The official archived copy of the speech, as transcribed after the March on Washington, is here. A preview of the speech appeared two months earlier in Detroit. “… King used many of the same words, rhetorical techniques, and themes. King expresses gratitude and inspiration and warns against hatred and separatism at what he thinks is the largest US demonstration to date, a march in Detroit June 23, 1963;” see here.

Other References

CBC Digital Archives, 1963 March on Washington for Jobs and Freedom, see here.

Lauren Williams, MotherJones, “I have a Copyright”, 23 August 2013; see here

Martin Luther King, “I have a dream” Great Speeches of the 20th century, The Guardian 28 April 2007, see here.  Note: the link to a YouTube recording brings up a notice of unavailability “due to a copyright claim by EMI …;” see here.

Paul Farhi, “Mercedes tried to use Martin Luther King’s image to drive car sales,” 29 September 2010, Washington Post, see here.

“Alcatel”, TV Spots; see here.

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