9.5.13 IN DREAMS

This article originally appeared in the 9.5.13 issue of Metroland

            Last time, 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 50^th 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’ legacies.

            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 the 50^th 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 Foundation.

            What’s 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 be.

            Beyond 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. 

            Broadly 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.