Meera Nair

of King and controversy

In Posts on September 1, 2013 at 8:35 pm

In my last post, I described the literary and dramatic qualities that made Martin Luther King, Jr.’s I have a dream speech one of the most celebrated speeches of the twentieth century; the copyright challenges surrounding the speech; and pointed out the existence of unauthorized copies of the speech and its coverage. I suggested that:

… the King estate is tacitly allowing the audio and video 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?

Wednesday came and went without any posting of the speech’s coverage in the digital archives. Stories concerning the speech, published on the 28th and since, continued to lament the absence of the speech. It seemed to go unnoticed that for the fiftieth anniversary, the Estate posted a link to an unauthorized YouTube video of the speech. And, while the text of the speech could already be found in the archive, on the announcement webpage for the celebrations, the Estate offered a large-font elegant pamphlet copy, printed in 1963 as “a public service courtesy of Mr. James A McGann, Founder-President West Indian American Club.”

These gestures, together with the digital archive, suggests an estate willing to assist students, teachers and individuals who wish to read and hear the speech.

Coverage of this matter has bordered on the hostile. That King’s material can only be licensed for republication was a bone of contention, leading to the peculiar spectacle of dismay that CNN and MSNBC had to pay licensing fees to broadcast the original speech. Such is the nature of that business.  But that does not negate individual fair use or fair dealing with the speech. While earlier cases involving professional media companies were settled without investigation of fair use, given the better fortunes of fair use these days, plus the gesture offered by the estate, individual creative and learning activities have reasonable grounds to proceed in accordance with copyright law. That King’s works are copyrighted is not cause for dismay.

Moreover, it is disturbing that some of the recent articles phrase King’s efforts to copyright his work as “apparently” and “purportedly” to raise funds for the civil rights movement (ex. see here and here). To imply that King was pocketing the proceeds is either an unfortunate misuse of vocabulary or a deliberate attempt to sensationalize the issue. Reviewing the archive, paying close attention to the documents associated to Joan Daves (King’s literary agent) I was struck by this entry from March 26, 1965. Daves writes to King’s secretary, Dora Macdonald:

It has been some time since I have heard from you or had any letter referred to my office, but one needs no great imagination to realize what tensions, pressures, and preparations you all must have faced. I have been with all of you in my thoughts and found it hard at times to stick to my duties up here; I am relieved and thankful this morning that the drive in Selma has ended on so momentuous a note and safely for Dr. King and those nearest him.

Daves go on to discuss copyright:

Please send me right away the complete text for Dr. King’s speech in Montgomery on the 25th; tell me if any steps have been taken to secure copyright If they have not, it is of the utmost importance that I do this right away. I only hope that it has not already been thrown into the public domain by publication in the newspapers prior to copyrighting.

Then Daves gives an account of the various royalties that had arrived recently and were expected from upcoming publications.  She adds: “I hope these monies will take care of the most immediate responsibilities which Clarence Jones [King’s attorney] told me Dr. King must meet.”

At the bottom of the page, is a handwritten scribble: “Shocking news this morning about yet another murder. What kind of people are these?”  (Emphasis in original.)

[Daves’ letter was in reference to the March from Selma to Montgomery on March 25, 1965.]

It should not take much imagination to consider that the fight for civil rights was not backed by an abundance of funds and that copyright royalties were welcome and put to good use. But despite taking care to ensure that copyrights were filed and opportunities for publication duly exploited, the King operation did not preclude zero-rated licenses. On April 14, 1967, responding to a request from the High Commission of India to translate one of King’s books into Marahati, Daves writes:

In view of the information you kindly made available to me, we are giving you this permission without a fee, with the understanding that your edition will amount to approximately 1,000 copies to be sold at a price of Rs. 3/ to Rs. 5/. If the situation should change at any future time, and further editions are published on a commercial basis, we shall expect to again hear from you.

To readers today, this might sound like a Creative Commons license – a work may be used for free, but the license does not extend to commercial activity.

As to how the Estate has operated in the more recent past, the commercialization of the speech for advertising purposes, and the denial of the use in documentary film, do not reflect well on the Estate. The involvement of aggressive third-parties to monitor the use of copyrighted material is disappointing to say the least, but consider the time frame when this happened. It was during the dark days of American fair use (where courts supported the view that any use of a work must be paid for) and it coincided with the trumpeting of intellectual property as the engine of growth and prosperity. At that time, modern technology and world-wide networks were seen as simultaneously ushering in vast wealth and never-before-seen piracy.

It remains that the Estate will sell a DVD of the speech for $20 from their gift shop and also allows Amazon to sell on their behalf. This is not footage that is decaying in any warehouse of a Hollywood studio. And, since the anniversary, the Estate is clearly sanctioning unauthorized copies for personal viewing. Until 2038, when King’s copyrights expire, this may be all that we can enjoy. That it is less than what we want should not provoke an international hand-wringing.

The most disturbing aspect of this story is the growing assumption that the work should be easily available online. That “this day and age”, entitles people to effortlessly view whatever they wish, and do with it whatever they wish, in blissful ignorance of the law. It speaks to a culture where YouTube is the prime repository of information. We do students no favours by championing such a culture.

Fortunately, some teachers are taking a different route. Students are encouraged to explore the King archive and the Stanford research site for text, images and audio relating to Martin Luther King and the civil rights movement. To which I suggest, perhaps remind students that such ease should be enjoyed and handled in accordance with the law. This is not difficult to do, as fair dealing and fair use comfortably protect individual acts of learning and creativity.

Granted, the archive is not easy to work with. The text is often quite faint. Many documents are handwritten. When documents are typed, sometimes the reader confronts the intensity of never-ending uppercase (perhaps even harder to read than cursive script). There are no options for select, copy, and paste. Transcription has to be done by hand. But that in itself is an exercise in media history. And through the extent of the original documents, students may learn that the civil rights movement was not a one day event, but a heartbreaking, disciplined effort that spanned years. A must-read document is a speech by Corretta Scott King, describing the early days:

On December 5, 1955, 50,000 Negroes of Montgomery decided it was ultimately more honourable to walk in dignity than to ride in humiliation and walked the streets of Montgomery until buses were integrated. This was the beginning of the non-violent mass demonstration for integration in Montgomery, Alabama, and for America. After walking for 381 days and having suffered all kinds of threats, intimidation, being arrested, shot and shot at, bombed: the buses were integrated by a mandate from the Supreme Court. This was a great victory, not only for the Negroes of Montgomery but for 17 million Negroes, America and democracy.

The demand for universal, easy access only makes it more difficult for those arguing to safeguard the existing limits on copyright. Such a demand strikes fear into the hearts of writers, artists, and musicians who might otherwise agree that exceptions are a necessary part within the system of copyright. This compromises efforts to hold on to flexible fair dealing, for fair use that is not driven by commercial considerations, and for meaningful international exceptions within trade agreements. The well-heeled film, music and book publishing industries, knowing they can never eradicate illegitimate copying, are focused on narrowing the scope for legitimate copying. The clamour that everything be found in YouTube is manna from heaven for lobbyists; they can comfortably argue that people are not interested in using exceptions, that people only want absolutely unfettered access.

Outside of the opinion of lobbyists, there seems little doubt that copyright terms are too long. It is absurd that in the life-plus-seventy jurisdictions a work is protected for another lifetime after the authoring body is cold. But the outcry over I have a dream has overshadowed how much is available online to foster further scholarship and creativity, through individual acts of fair dealing or fair use.

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