If you weren’t alive to witness Martin Luther King’s “I Have a Dream” speech on the Washington Mall 48 years ago this week, you might try to switch on the old YouTube and dial it up. But you won’t find it there or anywhere else; rights to its usage remain with King and his family.
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 in Estate of Martin Luther King, Jr., Inc. v. CBS, Inc. determined that the speech was a performance distributed to the news media and not the public, making it a “limited” as opposed to a “general” publication. That meant 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.
Also crucial in the estate’s copyright claims: though King himself claimed copyright of the speech a whole month after he delivered it, his claim was seen as valid because no “tangible” copy of the speech had been distributed before he made his claim. (The ruling was based on previous copyright law, from 1909, not the 1975 law we use today.)
And yet, because CBS settled with the family out of court for an undisclosed sum, the law never fully considered the matter of the speech’s copyright. Today, the audio version of the speech can be hard to come by, and unabridged film footage of it has escaped the cultural memory banks of YouTube. The single unabridged video that had been floating around YouTube is now unplayable, thanks to a copyright claim by EMI.
Excerpts from the speech can still be used under “fair use,” of course, like in this analysis of King’s rhetoric and various remixes. (My favorite MLK remix is not of the “I have a dream” speech but of the ’I’ve been to the mountaintop’ speech. But no one knows what the limits of “fair use” are, at least not until they receive a letter from the King family’s lawyers.
The practice of putting what seems like public domain material into private ownership didn’t start here. The family of Richard Nixon sold his papers to the U.S. government for $18 million. And the infamous, definitive home movie of President Kennedy’s assassination by Abraham Zapruder was subject to a long, hellish copyright dispute between his family and Time, Inc.
Joseph Beck, an expert in intellectual property and an attorney for the King family, which was left without much money after MLK’s death, told the Washington Post in 2006 that, “The King family has always supported providing access to the speech and to the video for educational purchases and encourages interested persons to contact the King Center in Atlanta.”
At the family’s Web site, videotapes and audiotapes of the speech can be purchased for $10 a piece. The family controls the copyright of the speech for 70 years after King’s death, in 2038.
Until then, you’ll most likely have an easier finding ABBA’s version of “I Have a Dream” than King’s.
This piece originally appeared at Motherboard.