Originally posted 2011-03-28 11:52:02. Republished by Blog Post Promoter

obama-and-kingThis is one of the first posts on this blog, and remains one of the most-likely to get hit by a search engine. It hasn’t seen the front page in three years, though, so I thought this would be a good day to re-post it:

The online Globe and Mail has an important item on how documentary filmmakers and others are being slammed by the IP equity grab, called “How Copyright Could be Killing Culture”. Okay, maybe “killing culture” is a little over the top. I suppose if more rigorous enforcement of copyright would throw a speed bump in front of the likes of Michael Moore, our modern Leni Reifenstahl, that would put a little chill in the air — but is that killing “culture”?

The point of the article, flagged by Tech Law Advisor, is nonetheless well taken. On the road yesterday morning, I listened to the entirety of the “I Have a Dream” speech on the Imus show (and, indeed, wondered about permissions — or does Imus need them?). The speech is breathtakingly beautiful, compassionate, stirring, patriotic; it is a truly appeal to America’s better self. (What a contrast to the self-parodic tropes of King’s imitators.)

The Eleventh Circuit Court of Appeals ruled in 1999 that the speech was not “generally published” for purposes of waiver of copyright, and that the King estate had the right to enforce its copyright in the speech. It is interesting to learn that King himself filed the copyright for the speech (albeit a month after he gave it — one of the issues in play in the case). According to the Globe and Mail article, however, for the makers of the King documentary Eyes on the Prize to renew their copyright clearances, they would need between a quarter and a half a million dollars. Evidently they won’t or can’t do it, so untold numbers of schoolchildren (who, please God, are prevented from listening to Imus’s show) won’t be exposed to the documentary, the speech, or this compelling version of the MLK story.

John Fund of the Wall Street Journal wrote a powerful opinion column on this topic two years ago. Here’s a fairly disturbing excerpt:

Many civil-rights leaders believe the King family has stepped out of bounds in merchandising Dr. King’s memory. In 1997, Dexter King negotiated a multimedia deal with Time Warner that the company said could mean as much as $10 million in royalties on books, Web sites and CD-ROMs. While schools may use Dr. King’s speeches free, family lawyers hunt down scholars who would use his words. “Eyes on the Prize,” the PBS documentary on the civil-rights movement, was delayed until the producers made a $100,000 payment to the King family. Julian Bond, head of the NAACP, says the price of his civil-rights textbook went up by at least $10 a copy because he had to pay to include four King documents in it.
“The family hasn’t done itself a lot of favors with its insistence that somehow they have to profit,” says Mr. Bond.

No, copyright won’t “kill culture,” but is it all worth it to ensure the Mickey Mouse franchise for perpetuity?

By Ron Coleman

LIKELIHOOD OF CONFUSION blog author Ron Coleman is a member of Dhillon Law Group in their New York City and Montclair, New Jersey offices. He is a graduate of Northwestern University School of Law and Princeton University.

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