The Claim
On the 30th anniversary of the March on Washington, August 28th, 1993, the newspaper USA Today reprinted the complete text of Dr. Martin Luther King’s historic “I Have a Dream” speech. Later that year, King’s estate sued USA Today publisher Gannett Co., claiming they infringed on the copyrights protecting the speech. According to the estate, Dr. King himself originally registered the speech with the Library of Congress Copyright Office, and won subsequent lawsuits to prevent the sale of unauthorized recordings of the speech.
USA Today later settled the suit by paying a licensing fee and legal costs, but the King estate filed similar suits against a politician using excerpts of the speech in a campaign ad, and against news production company CBS for selling recordings of the speech.
Fair or Infringement?
Fair Use doctrine applies a four factor analysis to determine whether the use of copyright-protected content is allowable without obtaining permission from the copyright holder:
Nature and character of the use
- Transformative uses are defined as those that “add something new, with a further purpose or different character, and do not substitute for the original use of the work.
- Specific fair uses are actually mentioned in copyright law. They include:
- criticism
- comment
- news reporting
- At what point in time is Dr. King’s speech no longer ‘news’, such that publication of his speech by media companies is no longer fair use?
- teaching
- scholarship or research
- additional uses protected by case law include parody and satire
- While all four factors must be considered holistically, this factor is generally given the most weight.
Nature of the copyrighted work
- Creative works (theater monologues) have more protection under fair use doctrine than technical works (press statements).
- Unpublished works have more protection than published works; King documented and registered his speech with the US Copyright Office in 1963.
- “General publications” are those made broadly available to the public without regard for what they might do with the material, and are considered public domain.
- “Limited publications” are distributed to a specific, known audience for a particular purpose, and are considered copyright-protected.
- While Dr. King’s original performance of his speech is arguably a ‘general publication,’ what about the written text of the speech? Audio or video recordings of the speech?
- In one editorial responding to the King estate suit, an intellectual property lawyer proposed that certain works “of special social and political significance” warrant their own category under copyright to remain “freely available” on account of their “transcendent public importance.” How should we balance the interests of content creators with those of the public in these situations?
Amount and substantiality of the portion used in relation to the copyrighted work as a whole
- What amount of King’s original speech is used in CBS’s video, and how substantial is that content in relation to the original? Is it the ‘heart’ of the original work?
- Philip Jones, president of Intellectual Properties Management, a firm that the King estate hired to assist them in managing Dr. King’s intellectual property, crunched the numbers to identify how much of King’s speech was used in the CBS video: “the videotape contains 60% of King’s speech; that 60%, in turn, makes up 25% of the entire, 43-minute tape.”
- The lawsuit claimed that the video included “the great majority and [t]he heart” of King’s original speech, including the eponymous segment which begins, “I have a dream…”
Effect of the use upon the potential market for the copyrighted work
- Does the fact that King delivered his speech in a freely accessible public space to a crowd of 200,000 demonstrators suggest that the speech is in the public domain?
- Does sale of CBS’s “20th Century with Mike Wallace” documentary series, including the episode on Dr. King, impact the potential market for recordings of the original speech?
- The King estate openly criticized CBS for making money from the sale of the documentary.
The Outcome
In an initial ruling, a federal judge declared that King’s speech was in the public domain. The judge cited the fact that advance copies of the speech were provided to the media, and that March on Washington event organizers had encouraged publicity and coverage of the event, in determining that the “I Have a Dream” speech belongs to the American public.
The King estate then appealed the ruling, asserting that Dr. King would not want his speech to be used for commercial purposes without his permission. The estate won that appeal, in part because the court drew a distinction between the performance of the speech and its publication in text or video recordings.
Since their legal victory, King’s family has made his work available to educators at low- or no-cost, and uses licensing fees and other revenue as a source of income. King’s assassination left his family in need in a time of extraordinary personal loss amidst the broader social and political turmoil of the civil rights era.
While many media outlets criticized King’s family and estate for aggressively protecting his work, others defended their right to control use of King’s intellectual property, uphold the copyright claims he registered, and to benefit materially from licensing and sales of King’s content:
[King’s] dreams may belong to the world, but his intellectual property belongs to his family.
James L. Swanson for the Cato Institute
Learn More
Note: These sources are listed in chronological order to present the copyright history of Dr. Martin Luther King Jr.’s oratory.
King, Martin Luther, Jr. “I Have a Dream…” National Archives, https://www.archives.gov/files/press/exhibits/dream-speech.pdf.
“King Estate Sues Paper Over `Dream’ Speech.” The Washington Post, Dec 10, 1993, p. B13, ProQuest US Major Dailies, http://ezaccess.libraries.psu.edu/login?url=https://search.proquest.com/docview/307702070?accountid=13158.
Blackmon, Douglas A. “Dr. King Estate Claims CBS Violated Speech’s Copyright with Videotape.” Wall Street Journal, Nov 20, 1996, p. B11F, ProQuest Historical Newspapers: The Wall Street Journal, http://ezaccess.libraries.psu.edu/login?url=https://search.proquest.com/docview/1441183920?accountid=13158.
“MLK’s Estate Sues CBS News.” Los Angeles Sentinel, Nov 28, 1996, pp. A, 4:3, Ethnic NewsWatch, http://ezaccess.libraries.psu.edu/login?url=https://search.proquest.com/docview/369361448?accountid=13158.
Wulf, Melvin L. “American History should Not be Copyrighted” [Letter to the editor]. New York Times, Jan 21, 1997, p. A22, ProQuest Historical Newspapers: The New York Times, http://ezaccess.libraries.psu.edu/login?url=https://search.proquest.com/docview/109723230?accountid=13158.
Stout, David. “‘Dream’ Speech by King is Held as the Public’s.” New York Times, Jul 23, 1998, p. 12, ProQuest US Major Dailies, http://ezaccess.libraries.psu.edu/login?url=https://search.proquest.com/docview/431003609?accountid=13158.
“Family Appeals Ruling on King ‘Dream’ Speech.” Los Angeles Times, May 12, 1999, p. 4, ProQuest US Major Dailies, http://ezaccess.libraries.psu.edu/login?url=https://search.proquest.com/docview/421409876?accountid=13158.
“Rev. King’s Heirs Win Round In Appellate Court Family Suing CBS Over Use Of `I Have A Dream’ Speech.” Chicago Tribune, Nov 07, 1999, pp. 18, ProQuest US Major Dailies, http://ezaccess.libraries.psu.edu/login?url=https://search.proquest.com/docview/419021256?accountid=13158.
“King Estate’s Copyright in ‘Dream’ Speech Upheld on Appeal.” The News Media & The Law, Winter 2000, p. 30, Reporters Committee for Freedom of the Press, https://www.rcfp.org/browse-media-law-resources/news-media-law/news-media-and-law-winter-2000/king-estates-copyright-drea.
Swanson, James L. “Copyright Wars: The Kings Strike Back.” CATO Institute, 2002, https://www.cato.org/publications/commentary/copyright-wars-kings-strike-back.
Strauss, Valerie. “King’s Fiery Speech Rarely Heard; Tapes are Copyrighted; Schools often use Text.” The Washington Post, Jan 15, 2006, ProQuest US Major Dailies, http://ezaccess.libraries.psu.edu/login?url=https://search.proquest.com/docview/410047287?accountid=13158.
Dey, Iain. “I No Longer Have a Dream – King Family Forces Movie to Misquote.” The Sunday Times (London), Jan. 4, 2015, p. 31, Nexis Uni, http://ezaccess.libraries.psu.edu/login?url=https://advance.lexis.com/api/permalink/2f6a54a8-32f0-4057-8bf2-6f437c07f1e5/?context=1516831.
Strauss, Valerie. “54 Years Later, You Still Have to Pay to Use Martin Luther King Jr.’s Famous ‘I Have a Dream’ Speech.” Washington Post, 15 Jan. 2017. Global Issues in Context, http://ezaccess.libraries.psu.edu/login?url=http://link.galegroup.com/apps/doc/A477606318/GIC?u=psucic&xid=74a51549.