How Copyright Forced A Filmmaker To Rewrite Martin Luther King's Historic Words

from the copyright,-paraphrasing-and-the-road-to-truthiness dept

Among the most powerful moments of Selma, the new film about the march Martin Luther King, Jr. led in 1965 in support of voting rights for African Americans, are the speeches, sermons, and eulogies King delivered during that tumultuous period. However, the speeches performed by actor David Oyelowo in the film do not contain the actual words spoken by King. This is because the King estate would not license the copyright in the speeches to filmmaker Ava DuVernay. Thus, the King estate’s aggressive stance on copyright has literally forced the re-writing of history.

According to the Washington Post, the King estate licensed the film rights to King’s speeches to DreamWorks, with Steven Spielberg producing any resulting films. DuVernay said that she never even asked for the rights to King’s speeches “because we knew those rights are already gone, they’re with Spielberg.” She added that she knew that there were strings attached to the rights: “with those rights came a certain collaboration.” In other words, the King estate uses its control over the copyright to control how King is portrayed. The Post article suggests that this control has prevented the making of a feature film about King?until now.

In the summer of 2013, when the nation was commemorating the 50th anniversary of the March on Washington, the King estate refused to allow broadcasts of King’s “I Have a Dream” speech. At the time, I wrote a blog post questioning the policy justification for one of the most important speeches in American history remaining under copyright 50 years after its delivery, and 45 years after the death of its author. I argued that King did not need the economic incentive provided by copyright protection to write the speech or deliver it so compellingly. I further asserted that copyright protection was not necessary to ensure that the speech remained in distribution 50 years after the March on Washington. I also responded to the argument that royalties from King’s speech have financed the work of the Martin Luther King Jr. Foundation promoting civil rights and social justice by noting that funding valuable institutions is not the purpose of copyright. Additionally, the cause of civil rights arguably could be better advanced by the broadest possible dissemination of his speech, rather than by exploiting it to generate revenue for the Foundation.

The same arguments can be made with respect to King’s speeches surrounding the march in Selma. King obviously was not motivated by financial gain when he wrote those speeches. Further, copyright protection was not necessary to ensure that the speeches remained available in the decades since. To the contrary, copyright protection prevented the derivative use of those speeches in the film, thereby potentially depriving new audiences of King’s message.

The Washington Post‘s review of Selma suggests that the director Ava DuVernay made a virtue of necessity in response to her inability to secure the rights to the speeches:

“in a brilliant work-around DuVernay approximates [King’s] words, allowing viewers to focus on their meaning rather than how literally Oyelowo reproduces them.” Likewise, the New York Times’ review observes that DuVernay turned her lack of permission to use the speeches into “a chance to see and hear [King] afresh.” In the film, King is “less an orator than an organizer” and is “a man trying to navigate his public role, his private life, and the expectations of his allies and friends.”

Proponents of long copyright term might point to these reviews as proof of the copyright system working properly. Denied the ability to quote King directly, DuVernay was forced to create her own expression?paraphrases of King’s speeches?and her own interpretation of King’s life.

At the same time, the Times recognizes that the inability to quote King directly “may be a blow to the film’s authenticity.” And this is a serious problem, particularly in a world where people are far more likely to learn history from a biopic than from a textbook. The director of a biopic already must compress complex events that unfolded over months (in the case of Selma) or years (in the case of the Alan Turing biopic, The Imitation Game) into two hours. The director must also add dramatic tension in order to sustain audience interest. (For example, Joe Califano, then a member of the Johnson Administration, has accused DuVernay of falsely portraying a series of conflicts between Johnson and King over voting rights, when in fact they agreed with the both the strategy and the tactics for achieving this objective.) The inaccuracies created by this compression and invented dramatic tension should not be compounded by concerns of potential copyright infringement liability.

Fair use is the obvious solution to the problem of copyright constraining the presentation of historical events. In Bouchat v. Baltimore Ravens, discussed in this post, the Fourth Circuit found the National Football League’s use of the “Flying B” logo in highlight films to be transformative because the logo was used “as part of the historical record to tell stories of past drafts, major events in Ravens history, and player careers.”

The court further stated:

“Were we to require those wishing to produce films and documentaries to receive permission from copyright holders for fleeting factual uses of their works, we would allow those copyright holders to exert enormous influence over new depictions of historical subjects and events. Such a rule would encourage bargaining over the depiction of history by granting copyright holders substantial leverage over select historical facts.”

Similarly, in Fox News Network v. TVEyes, discussed in this post, the court concluded that TVEyes’ inclusion of clips in a search engine for broadcast television was a transformative use. The court found that “TVEyes’ message, ?this is what they said’?is a very different message from Fox News’??this is what you should know or believe.'”

The primary purpose of including King’s speeches in the film Selma would be to inform its viewers of what King said and the impact it had on his audience. Although Ava DuVernay almost certainly believed in what King said, and wanted her viewers to believe it too, that purpose would be secondary to educating her viewers about King and his impact on the course of history.

Based on TVEyes and Bouchat, DuVernay would have had a strong fair use defense had she used King’s actual words rather than just paraphrased them. Perhaps she (or her lawyers) decided that historical accuracy was not worth the risk of litigation with the King estate. While it appears that DuVernay remained true to both the style and content of King’s speeches, the next director might not be so scrupulous. Indeed, an inept paraphrase of one of King’s speeches at the Martin Luther King, Jr. Memorial in Washington, D.C., made him sound, according to Maya Angelou, “like an arrogant twit.” The paraphrase subsequently was removed.

The paraphrasing of Martin Luther King, Jr. puts us on the slippery slope to truthiness. The King estate should be far more worried about people paraphrasing King than quoting him accurately.

Reposted from the Disruptive Competition Project

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Comments on “How Copyright Forced A Filmmaker To Rewrite Martin Luther King's Historic Words”

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That One Guy (profile) says:

The King estate should be far more worried about people paraphrasing King than quoting him accurately.

The estate doesn’t care one bit about ‘accuracy’, or the preservation of an important bit of history, all they care about is getting paid. If that means forcing anyone who might wish to cover the speeches to either present them as they were, and risk a lawsuit, or take some ‘creative licenses’ and re-write them, they don’t care in the slightest.

They do provide one very important service though, by showing a prime example of why copyright should not last past a person’s death. When someone can lock up history and culture like this behind a tollbooth, that’s a sign the system is in need of fixing.

art guerrilla (profile) says:

Re: Re:

yes, it is difficult to reconcile the king family’s greedy, nasty ‘defense’ of MLK’s speeches, etc… fuckers were (maybe still are) at each other’s throats in the courts trying to out-greed each other over what they could extract from their dead father’s corpus of work…
so disappointing that such a great man had such petty offspring: kings of moral justice to slaves of mammon in one generation… impressive…

also disappointing, is when directors like this, or people like weird al, essentially GIVE UP their RIGHTS to fair use in order to be ‘polite’ or some such ridiculous horseshit…
(AS IF the shoe were on the other foot, the holders of the copyright are NOT ‘polite’ in any way, shape or form…) THEY are HURTING copyright for the rest of us by NOT using the exceptions that are in the law already, much less further the carve out of these exceptions…
weird al is a dick for not using copyright right, AND it then promotes more ignorance of the law and fair use… but hey, he’s got his, so fuck y’all…

John Fenderson (profile) says:

Re: Re: Re: Re:

“At least he asks permission of the artist/copyright holder before using their work.”

He does so purely for personal reasons. Even Weird Al acknowledges that obtaining that permission is not technically necessary, and while I don’t think it’s fair to say he shouldn’t ask permission, I also think that his doing so isn’t worthy of praise.

Anonymous Coward says:

Re: Re: Re:2 Re:

Him asking for permission isn’t the problem. Weird Al asks for permission to be polite, and maintain good relations with other artists.

If people think him asking for permission means you must ask permission, that’s a problem of gross ignorance or stupidity on their part, not with anything that Weird Al is doing.

art guerrilla (profile) says:

Re: Re: Re:3 Re:

mason wheeler’s sockpuppet said:
(the same thing mason wheeler said)

the POINT you keep (purposefully) missing, is that weird al et al (hhh) IS one of the few avenues of general information about copyright to 90-99% or more of the public who DON’T hang out at techdirt or otherwise keep abreast of such issues…

so, the general public take some significant portion of whatever miniscule interest and knowledge they have about copyright, etc, from the chickenshit approach of weird al, which gives a FALSE and PERVERTED picture of HOW IT SHOULD WORK…

i do not for one second deny him the right to do it ‘his way’ and BEG for permission (yes, he actually tracked down one singer as she came off stage to BEG for permission to do what he ALREADY HAD THE RIGHT to do; not to mention, he demurred on doing a song or two he did not get ‘permission’ to do, AGAIN, giving a FALSE impression of the issue)…

i am saying that one of the major practitioners of satire/parody recognized by the public, is giving BAD advice through HIS preferred personal practices…

kids, do NOT do what weird al does: TAKE YOUR RIGHTS and use them (or you will lose them by lamers like weird al deprecating the practice of fair use); don’t let ANYONE make you beg or apologize for exercising your rights…

Empire must fall.
the sooner the fall,
the gentler for all…

PaulT (profile) says:

Re: Re: Re:3 Re:

“that’s a problem of gross ignorance or stupidity on their part”

Yeah, yeah, it’s not a problem of a convoluted system that’s so complicated and illogical that people think they have to ask for permission even for things that are clearly allowed by the letter of the law. It’s certainly not that they feel they have to do so anyway even when they are technically allowed, because certain corporations have shown no qualms about attacking people even when they are using things legally. No, it’s just stupidity.

Keep telling yourself that, it helps support the other fictions you guys keep pushing.

David says:

Re: Re: Re:

so disappointing that such a great man had such petty offspring: kings of moral justice to slaves of mammon in one generation… impressive…

Yes, which is why the default copyright terms are 2–3 generations after a creator’s death. By that time you have a really good chance that the heirs are more interested in what their ancestor pays than what he wanted, and consequently are least likely to mess with the will of the copyright behemoths.

But the world is changing, and a single generation for turning into mere moneygrabbers is certainly eventually going to be the gold standard. 70 or 95 or 120 or whatever number of years is just playing it safely.

King’s heirs are just ahead of their time.

Anonymous Coward says:

I remember those digital encyclopedias for you’re computer back when I was in school and how they had video and audio clips for famous things.
I remember learning about Dr King and trying to find more information on him in one of these digital encyclopedias.
I remember it not containing the speech because of copyright reasons.

That was 20ish years ago. To this day I still haven’t heard the full speech, only the most famous lines that everyone knows.

Fuck yeah, Copyright! Killing knowledge and education since inception. Why doesn’t anyone think of the children?

Anonymous Coward says:

Re: Re:

If you want to hear the full speech, I’m pretty sure that googling “martin luther king jr i have a dream speech video” will net you the speech. Large portions of it anyways, I’m not sure if the 17 minute video that is the most common that turns up is the full speech. I’m at work and can’t check, and most places discussing the speech don’t mention it’s length.

Anonymous Coward says:

Re: Re:

I would not go down the “it’s for the children” line of thinking. Generally people with a self inflated view of their own moral righteousness use the it’s for the children line to bludgeon individual freedoms. Also they can do so without challenge because after all its for the children.

As to public domain and US copyright I would not go so far as to say abolish the concept; however like most laws they need simplification.
If a law in the US was written like a man page terse and do the point most of these problems would go away.

nasch (profile) says:

Re: Re: Re:

I would not go down the “it’s for the children” line of thinking. Generally people with a self inflated view of their own moral righteousness use the it’s for the children line to bludgeon individual freedoms.

“Think of the children” is a meme now, I’m sure he was saying it with tongue in cheek.

dave blevins (profile) says:

long copyrights

Copyrights should stop at person’s death, 10 years after sale of rights, or 20 years of start of copyright, which ever comes first. No copyright if government funded.

Ditto for patents and no patents for software or living items. Patents should be licensed to all comers at reasonable rates. No patent if government funded.

Anonymous Coward says:

Re: long copyrights

Nah, it should not. But the protection should not be for free, either. It should not be too expensive, and it should take the “it is 40 y.o. and still profitable” into consideration.

So how about $0.01 for the first year. Just $0.02 for the second. $0.04 for the third, and so on, forever. Of course once you refuse the next year extension, you cannot get back.

It is not a lot of money, it would fund the cost of the system maintenance (after all why should everyone pay for supporting a monopoly) and protect all those new, poor, emerging artists.

PaulT (profile) says:

Re: Re:

I’m not sure what’s more impressive – the sheer number of lies and childish namecalling that you fit into a single sentence, or the fact that you’re too stupid to notice that this is a repost from another site (with permission, of course – those damn pirates using things legally with express permission!). Meaning that the impotent personal attack you attempted isn’t even directed at the right website.

11 words, and not one of them addressing any kind of reality. A magnificent failure, even by your lofty standards.

John Fenderson (profile) says:

The lesson to be learned

On the miniscule chance that anything I have or will have written or spoken should be considered of actual importance, I should take to heart the demonstrations not only of the King family but of numerous other descendents of famous authors/speakers/etc: don’t trust your descendents.

I’m not sure of how one is to guard against this sort of thing though. Can you restrict how your copyrights are used in your will? If not, then what can be done to ensure that your wishes are fulfilled?

John Fenderson (profile) says:

Re: Re: The lesson to be learned

There is some real debate about whether it is possible to voluntarily place works in the public domain. Wikipedia actually summarizes the issue fairly well:

It is controversial, however, whether it is possible for a copyright holder to truly abandon the copyright of their work. Robert A. Baron argues in his essay “Making the Public Domain Public” that “because the public domain is not a legally sanctioned entity,” a statement disclaiming a copyright or “granting” a work into the public domain has no legal effect whatsoever, and that the owner still retains all rights to the work not otherwise released.

Feldie47 (profile) says:

What’s next? Is a Lincoln descendant going to lock up the Gettysburg Address? How about a Washington descendant claiming all rights to Washington’s Farewell Address? Uh oh! Doesn’t some Roosevelt somewhere have the rights for ‘Speak softly and carry a big stick?’

Keep locking up history under copyright. Then only the wealthy will get to see it and you can really lay claim to an ignorant populace.

My Goodness!

Anonymous Coward says:

“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but can sue for copyright infringement on the historical works they did not create.

I have a dream today.

I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of interposition and nullification; one day right there in Alabama, little black boys and black girls will be able to join hands with little white boys and white girls as counsel for the lawsuit against anyone daring to quote historically accurate information.

I have a dream today.”

Anonymous Coward says:

Since commentary and news reporting are fair-use:

“I am happy to join with you today in what will go down in history as the greatest demonstration for freedom in the history of our nation.

Five score years ago, a great American, in whose symbolic shadow we stand today, signed the Emancipation Proclamation. This momentous decree came as a great beacon light of hope to millions of Negro slaves who had been seared in the flames of withering injustice. It came as a joyous daybreak to end the long night of their captivity.

But one hundred years later, the Negro still is not free. One hundred years later, the life of the Negro is still sadly crippled by the manacles of segregation and the chains of discrimination. One hundred years later, the Negro lives on a lonely island of poverty in the midst of a vast ocean of material prosperity. One hundred years later, the Negro is still languishing in the corners of American society and finds himself an exile in his own land. So we have come here today to dramatize a shameful condition.

In a sense we have come to our nation’s capital to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men, yes, black men as well as white men, would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness.

It is obvious today that America has defaulted on this promissory note insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check, a check which has come back marked “insufficient funds.” But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. So we have come to cash this check — a check that will give us upon demand the riches of freedom and the security of justice. We have also come to this hallowed spot to remind America of the fierce urgency of now. This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to make real the promises of democracy. Now is the time to rise from the dark and desolate valley of segregation to the sunlit path of racial justice. Now is the time to lift our nation from the quick sands of racial injustice to the solid rock of brotherhood. Now is the time to make justice a reality for all of God’s children.

It would be fatal for the nation to overlook the urgency of the moment. This sweltering summer of the Negro’s legitimate discontent will not pass until there is an invigorating autumn of freedom and equality. Nineteen sixty-three is not an end, but a beginning. Those who hope that the Negro needed to blow off steam and will now be content will have a rude awakening if the nation returns to business as usual. There will be neither rest nor tranquility in America until the Negro is granted his citizenship rights. The whirlwinds of revolt will continue to shake the foundations of our nation until the bright day of justice emerges.

But there is something that I must say to my people who stand on the warm threshold which leads into the palace of justice. In the process of gaining our rightful place we must not be guilty of wrongful deeds. Let us not seek to satisfy our thirst for freedom by drinking from the cup of bitterness and hatred.

We must forever conduct our struggle on the high plane of dignity and discipline. We must not allow our creative protest to degenerate into physical violence. Again and again we must rise to the majestic heights of meeting physical force with soul force. The marvelous new militancy which has engulfed the Negro community must not lead us to a distrust of all white people, for many of our white brothers, as evidenced by their presence here today, have come to realize that their destiny is tied up with our destiny. They have come to realize that their freedom is inextricably bound to our freedom. We cannot walk alone.

As we walk, we must make the pledge that we shall always march ahead. We cannot turn back. There are those who are asking the devotees of civil rights, “When will you be satisfied?” We can never be satisfied as long as the Negro is the victim of the unspeakable horrors of police brutality. We can never be satisfied, as long as our bodies, heavy with the fatigue of travel, cannot gain lodging in the motels of the highways and the hotels of the cities. We cannot be satisfied as long as the Negro’s basic mobility is from a smaller ghetto to a larger one. We can never be satisfied as long as our children are stripped of their selfhood and robbed of their dignity by signs stating “For Whites Only”. We cannot be satisfied as long as a Negro in Mississippi cannot vote and a Negro in New York believes he has nothing for which to vote. No, no, we are not satisfied, and we will not be satisfied until justice rolls down like waters and righteousness like a mighty stream.

I am not unmindful that some of you have come here out of great trials and tribulations. Some of you have come fresh from narrow jail cells. Some of you have come from areas where your quest for freedom left you battered by the storms of persecution and staggered by the winds of police brutality. You have been the veterans of creative suffering. Continue to work with the faith that unearned suffering is redemptive.

Go back to Mississippi, go back to Alabama, go back to South Carolina, go back to Georgia, go back to Louisiana, go back to the slums and ghettos of our northern cities, knowing that somehow this situation can and will be changed. Let us not wallow in the valley of despair.

I say to you today, my friends, so even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream.

I have a dream that one day this nation will rise up and live out the true meaning of its creed: “We hold these truths to be self-evident: that all men are created equal.”

I have a dream that one day on the red hills of Georgia the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood.

I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice.

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

I have a dream today.

I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of interposition and nullification; one day right there in Alabama, little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.

I have a dream today.

I have a dream that one day every valley shall be exalted, every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight, and the glory of the Lord shall be revealed, and all flesh shall see it together.

This is our hope. This is the faith that I go back to the South with. With this faith we will be able to hew out of the mountain of despair a stone of hope. With this faith we will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood. With this faith we will be able to work together, to pray together, to struggle together, to go to jail together, to stand up for freedom together, knowing that we will be free one day.

This will be the day when all of God’s children will be able to sing with a new meaning, “My country, ’tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the pilgrim’s pride, from every mountainside, let freedom ring.”

And if America is to be a great nation this must become true. So let freedom ring from the prodigious hilltops of New Hampshire. Let freedom ring from the mighty mountains of New York. Let freedom ring from the heightening Alleghenies of Pennsylvania!

Let freedom ring from the snowcapped Rockies of Colorado!

Let freedom ring from the curvaceous slopes of California!

But not only that; let freedom ring from Stone Mountain of Georgia!

Let freedom ring from Lookout Mountain of Tennessee!

Let freedom ring from every hill and molehill of Mississippi. From every mountainside, let freedom ring.

And when this happens, when we allow freedom to ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God’s children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual, “Free at last! free at last! thank God Almighty, we are free at last!” “

That One Guy (profile) says:

Re: Re:

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

I imagine his children would actually prefer to be judged by their skin color, rather than their character actually. The first, they have nothing to do with, and even if they did it still wouldn’t change who they are, and so they would be blameless either way, with nothing to be ashamed of.

Judging them on their character though, something they absolutely do control… yeah, they fail pretty utterly there. More interested in cashing in on their father’s legacy, than spreading and preserving it.

Judge them by their skin color, and the one doing the judging is the one who has failed. Judge them by their character however, and it is they who have failed.

Anonymous Coward says:

…isn’t this a really bad thing, though?

I mean, copyright law is now making it easier to tell lies through omission, something which is much more common in translation work than it should be in actual historical works.

For example, whilst you can paraphrase Shakespeare’s or Wilde’s works, you lose some of the satirical aspects of the work, and it becomes distorted through the lens of time, something that should be less common in this age of so-called positivity.

Anonymous Coward says:

I’m against current copyright law as well but…

“DuVernay said that she never even asked for the rights to King’s speeches…”

Um, doesn’t this invalidate basically everything? how did she know she would not have been granted permission to use the speeches if she didn’t even bother asking?

This is not being forced to change anything, this is not even bothering to inquire.

BernardoVerda says:

Re: Re:

No, it doesn’t invalidate anything.

It was a long-drawn battle to get the King family to consent to even non-commercial publication of (written copies of) his speech for educational and similar uses.

And as the article explains, Spielberg had a prior arrangement (bought in part with his consenting to the King family’s participation in and “oversight” of Spielberg’s bio-pic project.

CFWhitman says:

Weird Al

According to copyright law, Weird Al does need permission from whoever owns the copyright to the score of the songs that he parodies. He doesn’t need permission from the lyricist or the performer if they are not the same person who owns the copyright to the music (even though a particular performance may be copyrighted by the performer or a studio), but he needs permission from the music copyright holder.

The right to parody covers the lyrics and the performance, but not the music score. This is primarily because the score in one of Weird Al’s parodies doesn’t make fun of the original score; it is the original score.

I believe that Weird Al goes out of his way to get the performer’s permission, which he does not have to do. This may be all the previous commenters were talking about, but this may not be clear to someone who was just reading the comments.

Gwiz (profile) says:

Re: Weird Al

The right to parody covers the lyrics and the performance, but not the music score.

I would also like to see some sort of citation to back up this assertion.

I was under the impression that if a court declares a parody song to be fair use, no infringement has occurred, regardless if the musical score has a copyright separate from the lyrics since the actual music would be required to make an effective parody. If you cannot recognize the song being parodied then it’s not really a parody of the song.

But, IANAL, so I could be wrong.

Anonymous Coward says:

Suggest that instead of reading this article as highlighted by the principals here, one first read a corresponding article at Copyhype. According to that article the registration of a copyright for MLK’s speech took place about a month after he delivered it, and it was he who authorized its registration.

It is easy to take pot shots at his estate, as if somehow the administrators are up to no good.

Seems to me that what they are doing is generally in conformance with what MLK did during his lifetime. Pot shots at them are apparently little more than cheap shots.

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