“I have a dream”, said Martin Luther King, Jr, in the wake of the civil rights movement, shaping the struggle for the months and years to follow. This pivotal moment, unfortunately, is paid for you to see. The whole $15, in fact, for a DVD – as King's estate continues to own the rights to the speech.
Speeches, if written beforehand (in tangible form), are protected as any other protected work and usually falls under the purview of ‘literary' work. Performance of the work generally follows through the same as an exclusive right towards the same. This is in accordance with Title 17 of US Code itself.
§102 on subject matter of copyright in general provides –
“(a) Copyright protection subsists… in original works of authorship fixed in any tangible medium of expression…. Works of authorship include the following categories:
- literary works…”
Further, §106 on exclusive rights on copyrighted works provides –
“…the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly…”
Thus,speeches receive copyright protection if they are written beforehand. The issue, however, lies in the ‘public' aspect of such speeches. If the authors intended for the document to be public and heard by all and distributed by all, how can they claim copyright on it?
Works in the public domain are not covered by copyright. As a basic rule, works published before 1925 in the US are in the public domain since they have passed the 95-year prescribed limit. Generally, any work published without a copyright notice between 1925 and 1977 is in the public domain. Post 1977, irrespective of copyright notice, the work is most likely under copyright.
However, a work may also enter the public domain if –
- the copyright protecting the work may have expired, or
- the owner may have explicitly donated the work to the public, or
- the work is not the type of work that copyright can protect (such as animal made art).
The issue of copyrighted speeches stands in the second item. Did Martin Luther King intend for an explicit donation of his work to the public? US courts have created the doctrine of ‘limited publication' to tackle this question.
Doctrine of Limited Publication
Generally, a limited publication is the distribution of copies of a work to a definitely selected group with a limited purpose and without the right of diffusion, reproduction, distribution, or sale. A limited publication is not considered a distribution to the public and, therefore, is not general publication.
The US Court of Appeals for the Ninth Circuit stated that a limited publication is one which –
“communicates the contents of a [work] to a definitely selected group and for a limited purpose, and without the right of diffusion, reproduction, distribution or sale … [and is] restricted both as to persons and purpose”
On the other hand, a general publication, intended to be used by all without restriction is not protected under US copyright law. A general publication usually 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.”
However, the boundaries of general publication are not very clear.
Courts have generally upheld copyright protection a higher status in the US. For example, the following acts were held to still be under copyright protection –
- exhibiting a painting at a public exhibition: American Tobacco Co. v. Werckmeisterperforming a play in public: Ferris v. Frohman
- performing a song in public: McCarthy & Fischer v. White
- delivering a lecture when students were allowed to take notes: Nutt v. National Inst. Incorporated for the Improvement of Memory
- showing a film in public: Patterson v. Century Productions, Inc
- broadcasting a work by radio: CBS, Inc. v. Documentaries Unlimited, Inc (announcement of the death of President Kennedy)
- broadcasting a film on television: Burke v. National Broadcasting Co.
The question of a public written speech came before the courts when CBS aired footage of King's speech without prior permission or license.
King v. CBS
King's speech was delivered on August 28, 1963 to some 200,000 people, broadcasted live on radio and television. The speech had been written beforehand, a written version without copyright notice was available to the press during the demonstration.
Prior to appeal, the district court framed the issue as “whether the public delivery of Dr. King's speech … constituted a general publication of the speech so as to place it in the public domain.” After discussing the relevant case law, the district court held that –
“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.”
However, the appellate court was not of the same opinion. It stated –
“First, a general publication occurs if tangible copies of the work are distributed to the general public in such a manner as allows the public to exercise dominion and control over the work… Second, a general publication may occur if the work is exhibited or displayed in such a manner as to permit unrestricted copying by the general public.”
A mere performance is not publication, as per 17 USC §101. The court was of the opinion that the fact that the speech was orally delivered, that it was a turning point in history of the US civil rights movement, was irrelevant and did not classify it as general publication.
Similarly, distribution of the work to news media, as opposed to the general public, for the purpose of enabling the reporting of a contemporary newsworthy event, is only a limited publication.
“A performance, no matter how broad the audience, is not a publication; to hold otherwise would be to upset a long line of precedent.”
There was no evidence placed as to lack of restriction on copying and free allowance of reproduction by the press. Even the newsletters distributed at the time were disputed to be not by King's permission. Thus, the court ruled in King's estate's favour.
Thus, speeches, public or not, are provided copyright protection if –
- they were created beforehand in a tangible form;
- if created before 1978, a copyright notice was put up, or attempts were made to restrict the use of the work;
- it was not created for the purpose of, or was not in actuality, distributed freely to the public.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.