Last week’s 50th anniversary of the March on Washington and Martin Luther King Jr.’s “I Have a Dream” speech provoked a torrent of commentary on how the King family’s aggressive assertion of copyright in the speech restricted its re-broadcast. Much of the discussion centered on whether the performance of large segments of the speech would be a fair use (I think yes) and whether the family should as a moral matter make the speech more widely available (again I think yes).
Although most commentators understandably focused on the benefits of increasing public access to one of the most significant speeches in U.S. history, as a copyright lawyer I was struck by the copyright policy dimensions of this episode. The fact that one family controls the use of this historic speech 50 years after its delivery and 45 years after King’s death indicates that something is very wrong with the copyright system.
In the United States, the policy justification for copyright protection is that it provides an economic incentive for the creation and dissemination of works. But does anyone really believe that without the guarantee of copyright protection, Martin Luther King Jr. would not have written the speech, or that his delivery would have been less compelling? King obviously was not motivated by the possible financial reward when he wrote the speech, or when he deviated from the prepared text in response to calls from the audience. King registered the speech with the Copyright Office several months after the March on Washington, only when it became apparent that it could be a valuable asset.
Proponents of strong copyright protection often argue that even if a particular work did not rely on the copyright incentive, the income generated by the work enabled future creative activity by the author. Society benefits from the existence of professional authors who practice their craft at a high level. Under this reasoning, the revenue flowing from the “I Have a Dream Speech” speech provided King with the ability to write other works. Sadly, King was assassinated just five years after delivering the speech. While there might be some justification for compensating King during his lifetime, what possible policy reason could there be for compensating his estate a full 45 years after his death?
In response to this, supporters of longer copyright terms will stress that copyright encourages not only the creation of works, but also their dissemination. Even after an author dies, there are costs associated with distributing his works, and without copyright protection publishers would not be willing to incur these costs. Copyright thus ensures the continued availability of these works.
While this argument may have had some validity in the pre-digital age, it has far less validity now. Recent evidence shows that longer terms do not increase availability, but reduce it. All of King’s writings, and the film of all his speeches, could be placed online at minimal cost and thereby be freely available around the world.
Some have argued that the copyright royalties from King’s writings have enabled the Martin Luther King Jr. Foundation to carry on King’s work in civil rights and social justice. There is, of course, no way to know whether King would approve of the Foundation’s activities. He certainly would not have approved of all the squabbling among his family members over control of his legacy. Moreover, the speech is so powerful that the cause of civil rights could arguably be better advanced by the broadest possible dissemination of the speech, rather than by exploiting it to generate revenue for the Foundation. In any event, funding valuable civil institutions is not the purpose of copyright. If the civil rights and social justice objectives of the Foundation are worthy of support – and indeed they may be – then perhaps those activities should be supported directly with public funds, instead of indirectly, by permitting the Foundation to levy a tax on the public.
A final argument made in support of the estate’s continued control over the speech rests on the European tradition of moral rights. That is, the author has a right of integrity that enables him to prevent uses that disparage or diminish the work. The King estate abandoned the high ground on this argument, however, when it licensed the “I Have a Dream” speech for use by AT&T in cell phone advertisements.
This is not to say that copyright never provides an important incentive for the creation of works. But the King estate’s continuing restraint of public uses of the speech 50 years after its historic delivery, while simultaneously licensing it to sell mobile phones, is at odds with the notion that copyright is an “engine of free expression.” This ongoing right provides a clear example that copyright lasts far too long, and that copyright extends to many works that would have been created regardless of whether they received federal protection. Formalities such as notice and registration at the time of public dissemination would be a good proxy for the demonstrating the need for the copyright incentive.
Regrettably, shortening the copyright term (currently life of the author plus 70 years) or reintroducing formalities such as notice and registration are not on the agenda for the copyright review process underway in the House Judiciary Committee. Since the enactment of the Copyright Act of 1976, the United States has joined a web of international agreements that mandate a copyright term of the life of the author, plus 70 years, and that prohibit formalities. As a result, the United States cannot address the Copyright Act’s most serious structural problems until it untangles itself from this web.
Jonathan Band is a DC-based attorney whose clients include Internet companies, providers of information technology, universities, library associations, and CCIA. He previously guest-posted on DisCo about the foreign policy of intellectual property.