Martin Luther King, Jr.

I had wanted to post this yesterday, but a combination of nature and Connecticut Light & Power's incompetence resulted in my being without power from Saturday night to late Monday night, and that was the least of the problems caused by the storm. It will be some time and many thousands of dollars until things are back to normal.

Among the many things written about Dr. King's birthday, only one article I saw, in the Washington Post, dealt with the copyright issues over his "I had a Dream Speech, and then briefly. In 1963, a district judge in the Southern District of New York engaged in pretzel-like contortions to avoid fofeiture, King v. Mister Maestro, Inc., 224 F. Supp. 101 (S.D.N.Y. 1963). A more results-oriented law and facts be damned opinion would be hard to find.

A rational view on this subject was expressed by the trial court in Estate of Martin Luther King Jr. Inc. v. CBS Inc., 13 F. Supp.2d 1347 (N.D. Ga. 1998), which held that the speech was in the public domain through general publication without notice. Citing the fact that King had (understandably) encouraged the widest possible press coverage and dissemination of copies of the speech (and without limitation on reproduction), the Georgia trial court rightly characterized these activities as "almost epitomiz[ing] the definition of a general publication." The opinion was not, though, free of error; in particular, the trial court mistakenly considered the public performance of the speech as a factor pointing toward a general publication. This was reversible error, and indeed, the Eleventh Circuit subsequently reversed.

The majority opinion in the Eleventh Circuit, by Chief Judge Anderson, was careful to note that its decision took place in the context of the district court's grant of summary judgment in favor of defendant, CBS. CBS could, the court observed, still prevail on general publication grounds if certain facts involving authorized publication were established. Nevertheless, there was more than enough in the record to support the district court's decision: the distribution of multiple copies of King's speech to members of the press, without notice, and without restriction on its further distribution, clearly resulted in a general publication. The court of appeals expressed concern that "an author whose message happens to be newsworthy" should not be forced "to choose between obtaining news coverage for his work and preserving his common-law copyright." Dr. King could, however, have easily accomplished both goals by restricting further distribution of copies. Or, alternatively, he could have opted for the widest possible dissemination and federal protection merely by placing a copyright notice on the copies. The court of appeals' solicitude for Dr. King is understandable (although why this sympathy should extend to his estate is unclear, given its rather aggressive commercial practices), but its stretching of the boundaries of the law should still be criticized.