King estate’s copyright in ‘Dream’ speech upheld on appeal

From the Winter 2000 issue of The News Media & The Law, page 30.

The estate of Dr. Martin Luther King Jr. can proceed with its copyright infringement lawsuit against CBS because public deliverance of the “I Have a Dream” speech did not amount to a waiver of the copyright, the U.S. Court of Appeals in Atlanta (11th Cir.) held on Nov. 5.

The opinion reverses a lower court finding in favor of CBS, which used without permission approximately 60 percent of the speech in “Martin Luther King, Jr. and the March on Washington,” a segment of CBS’s “The 20th Century with Mike Wallace” documentary series.

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On Aug. 28, 1963, the Southern Christian Leadership Conference (SCLC) concluded its March on Washington, an event organized to promote the civil rights movement. More than 200,000 people gathered in front of the Lincoln Memorial on that afternoon, in large part to hear a speech by the Rev. Dr. Martin Luther King Jr., the founder and president of the SCLC. King’s “I Have a Dream” speech was broadcast live via radio and television to a nationwide audience.

On Sept. 30, 1963 — 33 days after the original delivery of the speech — King attempted to gain federal copyright protection for the speech under the Copyright Act of 1909. The federal Copyright Office issued a certificate of registration to King on Oct. 2, 1963.

King then filed suit in federal court in New York to halt the unauthorized sale of recordings of his speech and was granted a preliminary injunction on Dec. 13, 1963. King then licensed the speech and renewed his copyright when necessary. Following his death in 1968, his estate continued to license the speech and renew the copyright.

In 1994, CBS contracted with the A&E Network to produce a documentary series entitled “The 20th Century with Mike Wallace.” CBS devoted one segment to the March on Washington and King’s speech. The segment contained videotape filmed by CBS during the march. Although it neither sought permission from nor paid royalties to King’s estate, CBS used videotape of approximately 60 percent of King’s speech in the segment.

King’s estate then sued CBS for copyright infringement in federal District Court in Atlanta in July 1998.

Judge William O’Kelley dismissed the case, finding that King’s estate could not protect its copyright because King’s “performance coupled with such wide and unlimited reproduction and dissemination as occurred concomitant to Dr. King’s speech during the March on Washington can be seen only as a general publication which thrust the speech into the public domain.”

King’s estate appealed the dismissal to the U.S. Court of Appeals in Atlanta (11th Cir.). It argued that the District Court had improperly dismissed the case before trial because facts about the dissemination of the speech remained in dispute, and because the giving of a speech and its broadcast did not waive King’s rights to copyright the speech and control its later dissemination.

The estate asserted that even though King had made his speech to the general public, he had never intended to relinquish his copyright, and CBS had produced its documentary not to merely report on the speech, but to profit from King’s copyrighted work.

CBS countered those arguments by contending that the District Court had properly found that the public nature of the speech allowed the network to produce its documentary without violating King’s copyright.

CBS maintained that King had surrendered his copyright when he presented it in person, on television, and in print to millions of people. CBS argued in the alternative that, even if the speech was not in the public domain, the “fair use exception” to copyright law allowed the network to include it in the documentary segment as an educational tool that contributed to the public welfare.

Writing for a divided three-member panel of the Court of Appeals, Chief Justice R. Lanier Anderson III reversed the District Court’s dismissal on Nov. 5, 1999.

The court’s majority held that the 1909 Copyright Act mandates that state copyright protection applies to an author’s work until it receives a “general publication,” which either forfeits the work to the public domain or — following compliance with federal statutory requirements — converts the automatic state copyright into a federal statutory copyright.

According to the court, a general publication occurs “when a work was made available to members of the public at large without regard to their identity or what they intended to do with the work” and is contrasted with a limited publication that “communicated the contents of a work to a select group and for a limited purpose, and without the right of diffusion, reproduction, distribution or sale.”

The court then noted that the performance of a work is not a general publication, citing previous cases holding that, for example, a literary author’s public delivery of a work of art does not constitute the kind of publication that deprives her of the protection of the copyright statute. “This rule comports with common sense; it does not force an author whose message happens to be newsworthy to choose between obtaining news coverage for his work and preserving his common-law copyright,” the court said.

The court held that given the early dismissal of the case and the undeveloped state of the record, it could not conclude, as the District Court had, that CBS has demonstrated “beyond any genuine issue of material fact” that King’s oral delivery of the speech was a general publication.

The majority also noted that it would not consider CBS’s “fair use” and First Amendment arguments because the lower court had not yet ruled on these issues.

Cook’s concurring opinion argued that the trial court had erred by not recognizing that under the 1909 copyright law the public performance of a speech would never waive the ability to copyright it without the distribution of tangible copies of the speech. “I would hold that no publication, general or limited, occurred because Dr. King’s delivery of his ‘I Have A Dream’ speech was a mere performance of that work, and performance simply cannot constitute a publication regardless of (1) the size of the audience involved, or (2) efforts to obtain widespread contemporary news coverage under circumstances that may have allowed the copying of the work,” Cook wrote.

Senior Justice Paul H. Roney dissented from the judgment. Roney’s two-line opinion stated: “I respectfully dissent on the ground that the district court correctly held there was a general publication. I would affirm on the basis of the district court opinion.” (Estate of King v. CBS)