January 15 is Martin Luther King, Jr. Day, marking what would have been the 89th birthday of the great civil rights leader and Baptist minister. Although copyright is not (and should not be) the first thing that comes to mind when we think of Dr. King, the impact of his legacy on copyright law ought to be somewhere on the list. Indeed, Dr. King’s name has popped up as the litigant, author, or subject matter of dozens of copyright cases. Here are five things you should know about Martin Luther King, Jr. and copyright law.
- The “I Have a Dream” Speech is Protected by Copyright . . .
Dr. King delivered his “I have a dream” speech during the March on Washington for Jobs and Freedom on August 28, 1963. After the march, Dr. King entered into negotiations with Motown Records to distribute the speech, but several other records companies beat him to the punch and started selling unauthorized LPs. Dr. King registered the text of his speech with the U.S. Copyright Office in the Fall of 1963, and then brought suit against these alleged pirates in the Southern District of New York.
The key issue in the case, King v. Mister Maestro, Inc., was whether Dr. King had “published” the speech prior to observing the formalities required by the 1909 Copyright Act, such as affixing to it a copyright notice. The record companies argued that Dr. King published the work by delivering it publicly and by circulating mimeographed copies in the press tent (without any copyright notice) just before the speech, thus depriving the work of copyright protection. But the Court came down on Dr. King’s side, holding that the public delivery of a speech was not a publication of the written work, and that the distribution to the press was only a “limited publication” which did not deprive Dr. King of statutory copyright protection. The fair use doctrine, not codified until the 1976 Copyright Act, was not considered at all. On December 13, 1963, the Court enjoined further distribution of the unauthorized recordings.
- … and Dr. King’s Heirs are not Afraid to Enforce it
Although the public might not associate Dr. King with copyright, his heirs certainly do, and Dr. King’s heirs are widely perceived as aggressive enforcers and exploiters of his intellectual property rights. Filmmaker Ava DuVernay reportedly did not even bother trying to work King’s actual words into the movie “Selma” because “we knew those rights are already gone, they’re with Spielberg.” King biographer Professor David J. Garrow once faulted Dr. King’s heirs for “creat[ing] a climate of fear and intimidation among people interested in quoting King’s words.”
Perhaps the most famous example of the family’s enforcement efforts occurred in 1998, when the Estate of Dr. King sued CBS after it aired over 60 % of the “I have a dream speech” during a Mike Wallace documentary. In Estate of Martin Luther King, Jr. v. CBS, Inc., the Northern District of Georgia initially dealt the Estate a severe blow, ruling that the Southern District of New York had messed up the “publication” issue in 1963. Judge William O’Kelley held that Dr. King’s public delivery of the speech, coupled with its subsequent “wide and unlimited reproduction and dissemination,” thrust the work into the public domain. But the 11th Circuit Court of Appeals reversed and remanded, holding that public delivery of a speech, no matter how widespread, does not allow the general public to make copies of it willy nilly. However, it was not a total victory for the Estate and the case settled on remand, probably because CBS has unearthed new evidence (not available in 1963) that King actually did distribute the written text of the speech to the general public. As a result of the settlement, the issue of fair use, which was raised by CBS but not considered on appeal, was once again avoided.
The King heirs are also well known for cracking down on unauthorized commercial exploitation of Dr. King. The most well known such case was brought in the early 1980’s against a company that was selling plastics busts of Dr. King. The brochures advertising the bust included substantial excerpts from Dr. King’s speeches, and also implied an affiliation with an official organization run by Coretta Scott King. In Martin Luther King, Jr. Ctr. For Social Change v. American Heritage Prods., the Northern District of Georgia enjoined further distribution of the copyrighted speeches, and the dispute over the reproductions of Dr. King’s likeness led to a landmark 1982 ruling by the Georgia Supreme Court (on a certified question from the Eleventh Circuit), recognizing a post-mortem “right of publicity” in Georgia.
The family tendency towards litigiousness has also turned inward at times, culminating in the 2013 case of Estate of Martin Luther King, Jr. v. Martin Luther King, Jr. Ctr. For Social Change. The Estate of Dr. King, run by his sons, Martin Luther King III and Dexter Scott King, sent a notice to the King Center, a non-profit run by their sister Bernice King, purporting to terminate a license agreement under which the King Center was able to use Dr. King’s intellectual property. This termination was reportedly part of a wider family feud that included Bernice’s opposition to the sale of Dr. King’s Nobel Peace Prize medal and traveling bible. The Estate sued in state court and the King Center removed the action to federal court, arguing that the license at issue pertained to copyrighted works so the federal court had exclusive jurisdiction. The Northern District of Georgia disagreed and remanded the dispute to state court, holding that the matter sounded in contract, not copyright, and therefore there was no federal jurisdiction. Ebony magazine reported in 2016 that the matter had finally settled.
- The Assassination Scene Photographs are Agency Records
Life Magazine Photographer Joseph Louw was on assignment in Memphis when Dr. King was assassinated, and Louw snapped about 107 photographs of the crime scene. Louw transferred the copyright to Time, Inc. (parent company of Life) but also submitted copies to the FBI in aid of its investigation. In the mid-1970’s, Harold Weisberg, author of several books about the assassinations or MLK and JFK, submitted a Freedom of Information Act (“FOIA”) request to the Department of Justice (“DOJ”) for copies of the photographs. The DOJ refused and told Weisberg that, since the copyright belonged to Time, Weisberg had to get the photographs from Time. Weisberg filed suit.
In 1980 the D.C. Circuit sided with Weisberg in Weisberg v. Department of Justice. The Court held that, despite the existence of a copyright, the photographs were “agency records” subject to FOIA. However, the Court of Appeals also held that, since the disclosure of the photographs may affect the value of the copyright, a final judgment should not issue until Time, Inc. had an opportunity to be heard. On remand, Time, Inc. agreed to allow Weisberg access to the photographs. The parties continued to wrangle over other matters for nearly another decade, including Weisberg’s request for attorneys’ fees, an order for which he finally obtained in 1989.
- Even if Dr. King was an Original, he’s not Original
Even more copyright lawsuits have mentioned Dr. King not as an author or copyright owner, but as an element within copyrighted works made by others. The authors of these works often have argued that their use of Dr. King is an original element, such that Dr. King’s inclusion in both the plaintiff’s work and the defendant’s work demonstrates substantial similarity. This argument rarely works.
Perhaps the most interesting of these cases involved Dr. King’s niece, Alveda King Beal. Beal had written a novel called “The Arab Heart,” which told the tale of a fictitious Arab prince who comes to the United States for college against the backdrop of political unrest in his country. In Beal v. Paramount Pictures Corp., Beal alleged that this story was copied by the makers of Eddie Murphy’s “Coming to America,” a film about a fictitious African prince who comes to the United States to find a bride. Beal argued that the works were substantially similar, in part because they both contained references to Dr. King. But the Eleventh Circuit agreed with the District Court that no substantially similarity was created by the fact that the college roommate in Beal’s work made frequent references to MLK, while Eddie Murphy’s film referenced Dr. King during a memorable barbershop scene, after Prince Akeem asks the barber Clarence for a jerry curl:
Clarence: Man, what you want to make your hair look like that for . . . You ain’t never seen Dr. Martin Luther King with no messy jerry curl on his head . . . You know, I met Dr. Martin Luther King once.
Sweets: You lyin’, you aint never met Dr. Martin Luther King.
Clarence: Yeah, I met Dr. Martin Luther King in 1962 in Memphis, Tennessee. I was walking down the street minding my own business . . . I walk around the corner, a man walked up, hit me in my chest, right, I fall on the ground, right, and I look up and [it’s] Dr. Martin Luther King, I said: “Dr. King!” He said, “Oops, I thought you were somebody else.”
Sweets: Oh man, you lyin’, you ain’t never met Dr. Martin Luther the King.
Clarence: Knocked the wind out of me, yes he did.
Other cases have had similar outcomes. For example, in the more recent matter of McDonald v. West, musician Joel Mac alleged that Kanye West’s Song Made in America was copied from his own song of the same name, in part based on the fact that both songs referenced Martin Luther King, Jr. and Malcolm X in the same order. In 2016, the Second Circuit affirmed the District Court’s ruling that no reasonable jury could find a substantial similarity on that basis or any other.
- At Least the First Verse of “We Shall Overcome” is not Under Copyright
The most recent MLK-related copyright litigation involves the song perennially associated with Dr. King: We Shall Overcome. Dr. King reportedly first heard the song performed by Pete Seeger in 1957, and subsequently incorporated it into his speeches. Days before his assassination, Dr. King recited the lyrics during his final sermon. Days after his assassination, it was sung by 50,000 mourners at his funeral.
We Shall Overcome Foundation v. Richmond Org. is a putative class action brought in 2016 before the Southern District of New York by the makers of two films who wanted to include the song in their productions, but felt stymied by the licensing fees demanded by the defendant music publishers. Judge Denise Cote’s opinions on summary judgment, and on an earlier motion to dismiss, are must-reads for anyone who likes to geek out on the intersection of history and copyright.
According to the Court, the origins of the song are not precisely known, but it may derive from up to four different works, including a 19th-century African-American spiritual called “I’ll be alright” and a 1900 hymn entitled “I’ll Overcome Someday.” A version of the song was later adopted by the labor movement, and that version was first printed as “We Will Overcome,” in a 1909 edition of the United Mine Workers Journal. In 1946, Zilphia Horton of the Highlander Folk School recorded a version she learned from striking tobacco workers, and that version made its way into a 1948 edition of People’s Songs Magazine (founded in part by Seeger), where it was attributed to “FTA-CIO Workers.” Various versions of the song were created and performed over next decade or so. The most notable change during this period was the alteration of the lyrics and title from “we will overcome” to “we shall overcome,” which was the result of either Seeger’s Harvard education or Charleston schoolteacher Septima Clarke’s grammatical severity. The defendant music publishers entered into a contract with Horton’s widower in 1960, and then later registered the copyright “We Shall Overcome,” listing Horton, Seeger, and others as authors.
The Court, which was reviewing only the first verse of the song (the only one addressed by plaintiffs’ motion for partial summary judgment), compared the 1948 version with the versions registered by the defendants starting in 1960. The question was whether the defendants’ registered versions were simply copies of the original (with at most trivial variations) or derivative works with enough original new elements to make them independently eligible for copyright protection. The Court determined that the differences between the first verse of the two versions (changing “will” to “shall;” “down” to “deep;” and a few melodic changes) were not significant enough to create an original copyrightable work, and therefore the defendants’ copyright in the first verse was invalid. Borrowing from 1973 Copyright Office guidance, Judge Cote held that “minor changes in existing music, such as any musician might readily make, and which are not substantial enough to constitute original composition, do not create a new version.”
In coming to its conclusion, the Court excluded the report of the defendants’ expert, the aforementioned King biographer David J. Garrow. Garrow opined that the defendants’ registered version of the song was an “original” and “distinguishable variation” from an historical perspective, because that version had a “special and central role in the Southern Black freedom struggle.” Judge Cote wrote that Professor Garrow’s opinion “would be entitled to great weigh” if the song’s historical role were in dispute, but that was not the question before the Court, and Garrow’s opinion on the issue of “originality” was not admissible.
Although the Court’s summary judgment opinion addressed only the first verse and therefore was only partial, the music publisher defendants have promised not to sue on the other verses. On that basis, the defendants have asked the Court to issue a final judgment, no doubt with the intent of appealing to the Second Circuit.