There’s been some talk on this Martin Luther King day about the availability of the video of King’s immortal “I Have a Dream” Speech.  The removal of the video from the Vimeo site has stirred enough outrage to launch another march on Washington.  Or maybe even another SOPA-type revolt.

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Photo by National Park Service

There is so much to talk about regarding the copyright issues in this Speech that this blog could turn into a volume in a hurry (I’ve tried not to let that happen).  One of the many vexations, I think, is that we’re talking about two different pieces of material.  One is the speech itself, which has been the subject of a controversial lawsuit which we’ll break down in a minute.  As a result of that lawsuit, the copyright in the speech belongs to the King Estate and is administered by EMI (which has been recently bought by Sony/ATV, but who can keep up?)  The other is the CBS video.***   Both are at issue when the speech is posted on YouTube or Vimeo by a third party who isn’t either EMI/Sony, CBS, or the King Estate.

***I have only read that CBS owns the copyright in the video.  I haven’t confirmed this with a search of the Copyright Office records.

But let’s talk about this lawsuit, because there are plenty of copyright folks as well as copyleft folks who’ve raised an eyebrow at the 11th Circuit’s opinion in this case.  Unfortunately, we’ve got to look into the 1909 Copyright Act to figure out how this went down, and the 1909 Copyright Act isn’t even good law anymore.  But it was good law on August 28, 1963, when King delivered his famous oration at the Southern Christian Leadership Conference’s March on Washington.  King delivered his speech before he registered the copyright in it, but registered the copyright a month later.  For 20 years, the King Estate “enjoyed copyright protection in the Speech and licensed it for a variety of uses, and renewed the copyright when necessary.” ***

***The 11th Circuit’s language, not mine.  You can often tell a lot about how a case is going to turn out by the way the court drafts the factual history.

In 1983, CBS used the speech in a documentary without a license.  When the King Estate sued, CBS claimed that the speech was in the public domain.

Under the 1909 Copyright Act, registration was required for copyright to subsist after the work was published to the general public (the term was “General Publication”)***  So the question was, was the speech given to a live audience of 200,000 and a television audience of millions “general publication”?  If so, King would have lost the copyright in the work when he delivered the speech because the copyright had not already been registered, and the speech would have gone into the public domain.  The District Court in Atlanta was pretty sure that the speech constituted general publication. After all, a lot of people heard it on the Capitol lawn or saw it on television, and the audience couldn’t get much more general.  But the 11th Circuit Court of Appeals looked back at other old cases and came to the conclusion that general publication meant more than just dissemination; either tangible copies had to be distributed to the public so that the public had “dominion and control” over the work, or it had to be exhibited or displayed in such away that permitted “unrestricted copying” by the general public.  In 1963, a televised broadcast was not subject to “unrestricted copying” and did not produce “tangible copies.”  (Query whether the application of that rule to today’s DVR technology would produce the same result….)  The upshot was that the 11th Circuit could not rule that King had dedicated the work to the public domain.  CBS and the Estate settled the dispute after that before the case went any further.

***Under current U.S. copyright law, registration is still required in order to be able enforce a copyright against an infringer.

So the speech itself belongs to the Estate of King, and isn’t in the public domain.  Except that the 11th Circuit didn’t actually say that.  All it said was that “we are unable to conclude that CBS has demonstrated beyond any genuine issue of material fact that Dr. King, simply through his oral delivery of the Speech, engaged in a general publication making the Speech “available to members of the public at large without regard to their identity or what they intended to do with the work.”  This necessarily implies that genuine issues of material fact did exist as to whether or not  King’s delivery of the speech was a general publication.  But the parties settled the matter and the issue was never tried.  There are certainly reasons to question whether the speech doesn’t belong in the public domain.

Of course, even if the speech were in the public domain, what that would give us is access to the transcript, (which by the way, was first published by Time Magazine in 1983.  You can find it all over the internet now, but I have no idea if any of those copies are licensed by the King Estate, which after all, still owns the copyright after the lawsuit we described above).  That case didn’t have anything to do with the televised video, which is still controlled by copyright just the way the photographs of that day are (at least, as long as they complied with the statutory requirements of the 1909 Copyright Act).  The video is certainly newsworthy and heavy on factual details not owned by CBS, but there is almost always going to be enough creativity in a video to pass for copyright protection.  It’s a completely separate asset from the speech itself.  And CBS (or whoever the copyright owner is), has the right to take down its copyrighted material under the DMCA.

There is a sense that the “I Have a Dream” speech and the related video are so important, so historical, that they really ought to be in the public domain.  But under current copyright law, “important and historical” isn’t one of the categories of fair use (unless you’re doing research or commentary on the work) or works that aren’t subject to copyright.  Also, if we added that category, it would be a bit of a roll of the dice to try to decide what was “important” enough to qualify without having to litigate every single time.

A couple more points about Ammori’s blog:

  1. His title suggests that linking to the “I Have a Dream” speech in a tweet would be copyright infringement.  It isn’t a completely settled question, but after the Perfect 10 v. Google case, most IP practitioners believe linking to a third party site can’t constitute infringement.  There are probably thousands of tweets today sharing links to the speech, and probably that’s okay.
  2. His title, of course, also suggests that tweeting the link to the speech is “civil disobedience.”  Assuming that copyright infringement has taken place, I take personal issue against calling that a political act against an unjust law, when the end result is getting a video for free when the legal way to get is for $20.00 through the King Center.  The black college students who staged sit-ins at lunch counters across the South never got a free lunch.