This article originally appeared in the 9.5.13 issue of Metroland
we were talking about the Marvin Gaye’s kids / Robin Thicke debacle, and I
mentioned that it was disturbing to see a dead creator’s kids wielding a big
stick and abusing intellectual property laws in pursuit of the almighty
dollar. Then last week, on the 50th
Anniversary of the March on Washington and Dr. Martin Luther King’s “I Have A
Dream” speech, we were reminded of some of the worst abusers of all: Martin
Luther King’s kids. They’ve got that
speech locked down tight.
A big part
of the problem here is that copyrights just last too long. When the first US copyright laws were passed
in the 1790s, the term of protection was 14 years. Then a 14-year extension was tacked on. In the early 1900’s it was doubled, to 28
years plus a 28-year extension. Then in
the 1970’s, it got blown up to life of the author plus 50 years, or, in the
case of a corporate creator, 75 years.
Then in the 1990’s, at the behest of Disneycorp, (whose copyright to the
first Mickey Mouse cartoon “Steamboat Willie” was about the expire) Congress
passed the "Sonny Bono Copyright Term Extension Act” and added another 20 years
to everybody’s copyrights.
Now, the Constitution
says that Congress may pass copyright laws that provide creators protection
“for limited times.” The Constitution also says that the purpose of copyright
is for the betterment of society. The
idea is that copyright is supposed to
create a financial incentive for creators to create. 14 years was good enough for a while. But now...
Is life plus 70 years a “limited time”? Does life plus 70 create a significantly more powerful incentive than,
say, 28 years? Will creators stop
creating if we shorten copyright? And most importantly, how is society better
off with laws that allow copyrights to continue for another two generations
after the creator
croaks? Post-mortem copyrights too often
feature greedy kids and estate fiduciaries who push copyright maximalism to the
limit and seal off from the public and hold hostage the dead creators’
Like the “I
Have A Dream” speech. Kings’ kids have notoriously
kept it from the public. It’s being
administered by EMI publishing. If you
wanna reproduce or publish it, you gotta pay.
Newspapers, filmmakers and historians have been sued for reprinting it
or sticking it in a documentary. On
Anniversary last week, you didn’t see it replayed on
TV. You didn’t read it in any
newspapers. You can see it, however, in
car and cellphone commercials. And you
can buy a DVD of it (for private viewing only) for $20 from the King
wrong with this picture? Everything.
To be fair to the kids, they are following
Dad’s example. Prior to his
assassination, MLK went after companies that put out LP records containing the
speech. After his assassination, his
estate (his kids) have been ruthless about “unlicensed” reproductions of the
speech, and charge top dollar to anyone who wants to use it. They charged the non-profit foundation that
put together the MLK Memorial on the Plaza almost $800,000 to use the speech
and MLK’s likeness. Think about that.
This is a
speech that changed the world, one of the most important speeches in
history. It doesn’t belong to a cabal of
profiteers who pimp it out to the highest bidder. It
belongs to us. It belongs to the world.
But we’ve got this pesky little copyright
law thing. As a literary work and as a
performance, it falls under copyright’s purview. And there’s no “great speech” exception. Maybe there should be. On second thought, absolutely there should
that, there’s fair use. In a sharp Washington Post
op-ed last week,
attorney Josh Schiller made the case that the reproduction of the speech in
2013 would generally be a fair use and not an infringement of anybody’s
rights. And I think he’s right.
speaking, fair use comes into play when the use of a copyright-protected work
benefits society more than upholding the copyright would. Ya think?
More narrowly, fair use protects news reporting, commentary and
educational uses. Recent court cases
involving the likes of 2 Live Crew, Jeff Koons, South Park
, and Richard Prince have stressed that fair use can be
found when the secondary use is transformational
in context, purpose, and meaning, or if it is aimed at a different audience or
exudes a different aesthetic than the original.
I think the
republication of great historic speeches qualifies, almost by definition. The
listener / viewer experiences the speech through the prism of time and observes
the changes that the speech may have brought about and the universal truths
that have stood the test of time. That’s transformative, and it’s precisely
what would have happened had the media sucked it up and ran with the speech
last week. It’s time for the “I Have A
Dream” speech to be free.
Paul Rapp is an ornery
intellectual property lawyer who lives and works in the wilds of Berkshire
County and who enthusiastically applauds the end of summer.