Jonathon Nunley, KLJ Staff Editor1
So you want to make a movie portraying the life of arguably the most famous civil rights leader and orator in American history, Dr. Martin Luther King Jr. Where do you start? If your thought was to look to Dr. King’s speeches and find an actor who can deliver them with the same emotion and power as Dr. King, not so fast.
During production one of the most acclaimed movies of 2015, Selma, Director Ava DuVernay had to deal with a unique intellectual property issue that many would not think of. Dr. King’s speeches are protected by copyright law and cannot be used without paying a licensing fee to Dr. King’s estate.2 The film is being hailed as one of the best movies of 2015, having been nominated for dozens of awards. Furthermore, it is monumental in the fact that it is one of the first movies to portray Dr. King as a main character.3 Yet Ms. DuVernay cannot use Dr. King’s speeches. Why?
Dr. King’s speeches are classified as intellectual property and qualify for copyright protection. Materials that are protected by copyright are defined in 17 U.S.C. § 102.4 Dr. King’s most famous speech, the ‘I Have A Dream Speech,’ is considered a performance by way of legal designation. In turn, the description of that particular speech as being a performance, as well as others, allows copyright protection. When a piece of work receives copyright status, reproduction or usage of the copyrighted material is protected by 17 U.S.C. § 106.5 So in the case of Ms. DuVernay, with her purpose being to reproduce the speeches in a movie, law would prohibit it.6
Dr. King’s speeches cannot be reproduced or used by others without paying a licensing fee to Dr. King’s estate. Just ask USA Today, who had to pay $10,000 in attorney’s fees and court costs, plus a $1,700 licensing fee, after they reproduced the ‘I Have A Dream’ speech without permission from Dr. King’s estate.7
So why can’t Ms. DuVernay license Dr. King’s speeches from his estate? Because Dr. King’s estate licensed his words to DreamWorks and Warner Brothers in 2009 for a film director Steven Spielberg may one day produce. Presumably the agreement has a clause preventing Dr. King’s estate from licensing his speeches to other production companies.
What do you do when you can’t use the very words of the man your movie is intended to honor? Well, as Ms. DuVernay, the director of Selma said, “I just unanchored myself from the words and went not even line-byline, but word for word, to try to really understand what he was trying to say and then just say it in a different way.”8
So whose words are they? Well for today, and as long as Dr. King’s speeches are protected by copyright, they remain the words of Dr. King’s estate, for their exclusive use and distribution. So until Dr. King’s estate loosens up their control of Dr. King’s speeches, or there is a mammoth revision to copyright law, don’t expect to hear Dr. King’s speeches in any movies, shows, or writings. That is, until Spielberg eventually makes his movie.
1 Universtiy Of Kentucky College of Law, J.D. expected May 2016.
2 Jordan Zakarin, Making ‘Selma’ Without Mart Luther King, Jr.’s Speeches, Yahoo (Dec. 23, 2014), https://www.yahoo.com/movies/making-selma-without-martin-luther-king-jr-s-105965343587.html.
4 17 U.S.C. § 102.
5 17 U.S.C. § 106.
6 See Id.
7 Jason Linkins, Here’s Why You Don’t See MLK’s ‘I Have A Dream’ Speech All The Time, Huffington Post (Aug. 28, 2013), http://www.huffingtonpost.com/2013/08/28/i-have-a-dream-copyright_n_3829901.html.