Copyright Corner

I was too young to remember the day in August 1963 when Martin Luther King made his famous “I Have a Dream” speech on the steps of the Lincoln Memorial.  But my mother watched it on television, and my father tells me that she called him at work to tell him about it as soon as Dr. King finished.  She recognized immediately that she had heard a speech that was destined to become famous for its wonderful rhetoric, vision, and ability to inspire.

Little did my mother know that the fact that the speech had been broadcast on radio and television would be central to litigation between Martin Luther King’s estate and CBS several decades later.  This litigation brought together several interesting  aspects of copyright law, including the application of the copyright law in force when a work was created, the definition of publication of a work, and the use of common law copyright.

Under the copyright law in force in 1963, state common law copyright began as soon as a work was created and continued until general publication occurred.  If the creator did not comply with federal requirements for registration and notice at the time of general publication, the work passed into the public domain.  Because this was a harsh rule for many creators, the law recognized a limited publication to a select group for a limited purpose.  Limited publication did not require the creator to comply with formalities or lose the copyright.

Dr. King did not register his speech until about a month after he gave it, and at that time, he began to enforce his copyright against unauthorized reproductions of it.  This continued successfully until 1994, when CBS produced a documentary that used 60% of the speech without permission of Dr. King’s estate.  The estate filed suit, and CBS argued that Dr. King had forfeited his copyright because he had delivered the speech publicly and it had been widely broadcast prior to registration.

The trial court awarded summary judgment to CBS.  The appeals court reversed this holding, ruling that there were issues of fact over whether a general publication had occurred and sending the case back to the lower court.  At this point, the parties settled.  CBS had also argued its case on the basis of fair use and the First Amendment, but the court did not rule on those issues.