We might hold it to be self evident that it can be spread freely. Nope.
This story was published on January 17, 2012. It was updated on August 28, 2013. Read a longer update here.
Martin Luther King Jr.'s "I Have a Dream" speech is considered one of the most recognizable collection of words in American history. It's the rhetorical equivalent of a national treasure or a national park. The National Park Service inscribed it on the Lincoln Memorial and the Library of Congress put it into its National Recording Registry. So we might hold it to be self evident that it can be spread freely.
Not exactly. Any unauthorized usage of the speech and a number of other speeches by King – including in PBS documentaries – is a violation of American law. You'd be hard pressed to find a good complete video version on the web, and it's not even to be found in the new digital archive of the King Center's website. If you want to watch the whole thing, legally, you'll need to get the $20 DVD.
That's because the King estate, and, as of 2009, the British music publishing conglomerate EMI Publishing, owns the copyright of the speech and its recorded performance. While the copyright restriction isn't news, EMI's unusual role in policing the use of King's words – the first instance of the company taking on a non-music based intellectual property catalog – hasn't been widely reported. In November 2011, EMI Group was auctioned off, and the publishing business was sold to a consortium run by Sony Corp for $2.2 billion.
The awkward tussle over MLK's words bears recounting, especially given the ongoing controversy over the Stop Online Piracy Act, which targets copyright infringements on the Internet – and highlights all sorts of problems with our aging copyright system and general ignorance about how ideas actually spread in the digital age. It also highlights the risks of a forceful anti-piracy law. Under a previous version of the SOPA bill, educational websites that host unlicensed versions of copyrighted political and cultural documents could be as easily blocked as a website hosting pirated films.
Typically, a speech broadcast to a large audience on radio and television (and considered instrumental in historic political changes and ranked as the most important speech in 20th century American history) would seem to be a prime candidate for the public domain. But the copyright dilemma began in December 1963, when King sued Mister Maestro, Inc., and Twentieth Century Fox Records Company to stop the unauthorized sale of records of the 17-minute oration.
Then, in 1999, a judge determined that the speech was a performance distributed first to the news media and not to the public, making it a "limited" rather than a "general" publication. In Estate of Martin Luther King, Jr., Inc. v. CBS, Inc. William C. O'Kelley, in U.S. District Court for the Northern District of Georgia, wrote,
A performance, no matter how broad the audience, is not a publication; to hold otherwise would be to upset a long line of precedent. This conclusion is not altered by the fact that the Speech was broadcast live to a broad radio and television audience and was the subject of extensive contemporaneous news coverage. We follow the above cited case law indicating that release to the news media for contemporary coverage of a newsworthy event is only a limited publication.
Thus, the speech, like other "performances" on CBS, was not in the public domain. That meant the King estate had the right to claim copyright and had standing to sue CBS, which had used a portion of the speech in a 1994 documentary, "The 20th Century with Mike Wallace."
The claim had been made before. In 1994, USA Today had paid the King estate $10,000 in attorney's fees and court costs plus a $1,700 licensing fee after publishing the full speech without permission; the estate also sued the documentary producer Henry Hampton, alleging the unauthorized use of Dr. King's image and words in the landmark 1987 public television series Eyes on the Prize.
While full copies of the "Dream" speech – and a number of other of his favorite speeches – have been removed from YouTube, it can still be broadcast with the proper licensing. In 2001, Alcatel aired an ad with an excerpt of "I Have a Dream," which it licensed from the King family for an undisclosed sum. "When I saw that on TV, I could not believe I was seeing what I saw," NAACP Chairman Julian Bond told 60 Minutes in 2001. "If Martin were alive, he and I would be meeting with Alcatel right now, saying, 'How many blacks and women on your board?'" said the Rev. Joseph Lowry, who worked with Dr. King.
King himself donated proceeds from licensing the speech to fund the civil rights movement, and the King family has made similar pledges. But while legal scholars might defend the family's legal right to King's legacy — and few would argue with the family's right to earn proceeds from that legacy — others focus on the larger, obvious point: whether or not King would have wanted his ideas used in advertising, he certainly wouldn't have wanted them to be kept out of documentaries about the history of the civil rights movement, for instance.
"I think Martin Luther King must be spinning in his grave," Bill Rutherford, who was executive director of the Southern Christian Leadership Conference when King was murdered, told 60 Minutes. "He gave his life for his ideas of justice, peace and love. He attempted his entire life to communicate ideas for free. To communicate, not to sell," he says.
In 2009, EMI Publishing became the administrator of the King copyright, after a deal the music publishing giant struck with the King family for an undisclosed sum. Given EMI's hefty experience in policing copyright material on the web – it courted YouTube's help early on, and recently won a million dollar suit over use of the Beatles catalog online – the deal was intended to better restrict the unlicensed distribution of King's words, and to license them, for instance, for use in pop songs. (The Gregory Brothers, who applied autotune to an unlicensed snippet of King's voice in a song they released in 2010, have since removed the video from YouTube, though another copy still exists.)
"His works are the expression of a man who helped to transform our society, and to this day his words continue to inspire the world," EMI Chairman and CEO Roger Faxon told reporters at the time of the deal. "Assuring that Dr. King's words are accorded the same protection and same right for compensation as other copyrights works is a profound responsibility, and we are proud of the confidence that the Estate has placed in us to fulfill that responsibility."
Dexter King, then chairman of The King Estate, said EMI was best positioned to "increase The King Estate's ability to preserve, perpetuate and protect the great legacy of Martin Luther King Jr."
At the time of the deal, three years after the death of MLK Jr.'s wife, Coretta Scott King, Bernice and Martin Luther King III were fighting Dexter in court over control of their parents' estate. Martin Luther King III has since been named president of the King Center. The King Center and EMI did not comment for this story.
This copy of another famous speech by King, "The Drum Major Instinct" is no longer on YouTube, due to a copyright claim by EMI Publishing. Another copy can be found here.
What would King have made of all this, and of SOPA? I think he might have reframed the question, with poetry: how does ownership of ideas effect how we exist together in the world? How does the spread of ideas help push forward better understanding among men. What price are we willing to pay to keep ideas free? How do we decide who deserves access to ideas, who gets to build on them, and who gets to "own" them? Who gets to censor them, and at what cost?
King might have noted, as an excellent On the Media report does, that his speech was not just divinely inspired, but a tribute to the communication of ideas – a kind of mash-up of rhetorical phrasings of other preachers and leaders of the time, along with an abundance of references to the Bible, the Declaration of Independence, the Emancipation Proclamation, the Constitution, the Gettysburg Address, and Shakespeare ("this sweltering summer of the Negro's legitimate discontent will not pass until there is an invigorating autumn…" is a reference to Richard III). Even half of the "Dream" snippet in the Alcatel ad is mostly borrowed: We hold these truths to be self evident… "belongs" to Thomas Jefferson.
Jefferson's vision of "all men created equal" and universal education may someday be honored by the World Wide Web. For now, protecting that vision online will require protecting some of the other truths we hold to be self evident, like the unimpeded transmission of political ideas – not just the important, valuable, historic ones, but all of them. And the implications of a forceful anti-piracy bill, wrote Trevor Timm of the Electronic Frontier Foundation, would be chilling to whistle-blowers and other people fighting for human rights.
Whatever happens with SOPA and PIPA, and the discussion they've sparked about regulation of the Internet and the tension between Silicon Valley and Hollywood, some very important questions remain about how we treat ideas. Those questions won't disappear anytime soon, and they shouldn't. But it won't be until the year 2038 that I Have a Dream" – delivered nearly 50 years ago, permanently installed in our cultural imagination – will be "free."
Update, Aug. 28, 2013 : In January, an internet rights group born out of the SOPA controversy posted a video of the speech to YouTube and Vimeo. "Had SOPA and PIPA passed last year," Fight for the Future wrote on YouTube, "you could have gone to jail for sharing this video, and entire websites could have been shut down just for linking to it. This speech is too important to be censored by a broken copyright system." They also threw in a quote from the man himself: "...one has a moral responsibility to disobey unjust laws."