Fair Use and the Words of Martin Luther King

Tuesday, September 3, 2013

Last week the nation commemorated the 50th anniversary of the March on Washington for Jobs and Freedom, at which, in 1963, the Rev. Martin Luther King, Jr., delivered his famous “I Have a Dream” speech. The fact that we heard a lot about that speech, heard small quotes from that speech, but did not hear or see the entire speech played on radio or television, or transcribed in the newspaper, demonstrates a point about copyright law. 

As can happen with any artistic work, the copyright was registered on the words of that famous oratory by Dr. King. Copyright protects an original work of authorship that is fixed in a tangible medium of expression, and comes into being through the act of creation.  Registration involves the statutory process for perfecting the right. Thus as an original, registered work, the speech cannot be reproduced without express permission from his estate. Excerpts of the speech can be used under the Fair Use doctrine, but though Dr. King’s delivery of the speech was filmed and recorded, it is heard and seen in its entirety only when the estate grants permission.

The person who made the film and/or the sound recording of this moment in history will also hold a copyright to the film or recording, but may not allow the film to be shown without first obtaining permission from the one who holds the copyright for the words. Usually this involves paying a licensing fee.

If you visit the King Center in Atlanta, you can buy a recording of the speech for $20. Licensing fees for large media organizations, who may profit from the distribution of the written or recorded material, are significantly higher.

The excerpts we do hear, including Dr. King’s closing words, are covered by the Fair Use doctrine, which is set forth in the Copyright Statute. When courts decide on fair use, they usually consider four questions: 

  1. What is the purpose of the use? Is it for commercial purposes? Is it for nonprofit purposes? Educational purposes?
  2. What is the nature of the copyrighted work?
  3. How much of the copyrighted work has been quoted? Is the section that is quoted a substantial portion of the original?
  4. How does this use impact the potential value of this copyrighted work?

Journalists and others who publish small pieces of the “I Have a Dream” speech rely on fair use, though the legal boundaries are fuzzy and, in this instance, have never been tested in the courts. Legal precedent indicates that there is often a fifth question considered in fair use deliberations: Is the use of the material transformative? That is, does it become something different—a news story, a work of art, etc.? Because fair use is highly subjective, it could be contested at any time.

Questions of intellectual property, fair use, and copyright law can affect the way we receive even the most memorable information. As we commemorate a significant moment in the history of our country, we have a chance not only to reflect on the civil rights movement and the momentous events of August 28, 1963, but also to contemplate both the power of words and the laws that apply to those words.