Since 1963, King and, posthumously, his estate have strictly enforced control over use of that speech and King’s likeness. A few years ago, the estate received more than $700,000from the nonprofit foundation that created and built the monument to King on the Mall in order to use his words and image. The only legal way to reproduce King’s work — at least until it enters the public domain in 2038 — is to pay for a licensing fee, rates for which vary. (Individuals visiting the King Center can buy a recording of the “I have a dream” speech for $20. Licenses for media outlets run into the thousands.)
Although it has been the subject of at least two lawsuits — the King estate sued CBS and USA Today for their use of the speech, reaching undisclosed settlements — a court has never examined whether and under what circumstances the “I have a dream” speech may be used without authorization in what’s considered a “fair use” exception.
Courts look at four factors for fair use: (1) the purpose and character of the use, including whether such use is for commercial or for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. There are no bright-line rules for fair use; each case must be examined on its facts. Courts have frequently recognized that fair use is central to the “progress of science and advancement of the useful arts” that is the principal tenet upon which copyright laws were created.
Recent jurisprudence has focused on the first and fourth factors, looking primarily at whether the secondary work that cites the material is “transformative.” The threshold is whether the copyrighted material is used as an element, or ingredient, of a new work created for a different purpose and a different audience and whether a new aesthetic or further expression can be perceived by a reasonable observer.
In an important case in 2006, the U.S. Court of Appeals for the 2nd Circuit found that a biographer of the Grateful Dead had made fair use of copyrighted concert posters and tickets whose illustrations are the instantly recognizable sort that observers associate with the band and the 1960s and ’70s. The appropriated images “serve as historical artifacts graphically representing the fact of significant Grateful Dead concert events selected” by the author, the court said, and this use did not harm the first creator’s economic incentives.
Playing a recording of King’s speech as thousands march on the Mall, as happened this past weekend, is surely the sort of non-commercial, educational and historical use that Congress and the courts have frequently and rightly protected.
One can imagine many transformative uses of the “I have a dream” speech — from posting it in social media platforms for people to share and remark upon, to quoting the text in song lyrics or in a film, documentary or other artistic work to conjure the strivings for social equality that were the essence of King’s speech and to celebrate a sense of shared accomplishment that followed.
As an attorney, I believe in respect for the law and observing copyright restrictions. But when it comes to observing the anniversary of such a public moment, one hopes that fair use will allow current generations to appreciate what happened 50 years ago this week and why it was such a moment in American history.
The public benefit of access to historical artifacts such as King’s speech is undeniable. Any restriction on public access to the content of such a historical artifact should be enforced with caution.