…the speeches performed by actor David Oyelowo in the film do not contain the actual words spoken by King. This is because the King estate would not license the copyright in the speeches to filmmaker Ava DuVernay. Thus, the King estate’s aggressive stance on copyright has literally forced the re-writing of history. … [Under existing precedent] DuVernay would have had a strong fair use defense had she used King’s actual words rather than just paraphrased them. Perhaps she (or her lawyers) decided that historical accuracy was not worth the risk of litigation with the King estate.
Earlier on the Martin Luther King Jr. estate here and here.
More: reader J.B. writes:
Note that even without the hard-to-defend serial legislative extensions of copyright term for existing works, copyrightable MLK stuff from 1965 would still not be in the public domain under the rules as they then existed (assuming, as seems plausible, that the estate had remembered to renew), although that wouldn’t be all that far off (2021, or maybe 1/1/2022).
Beyond that, here’s the thing: the exact boundaries of fair use are fuzzy because the doctrine as it has evolved is very fact-driven and context-specific. This means that aggressive rights-holders can, by a threat to litigate, probably chill some unauthorized uses that would be legitimate (and there must be some situations that go the other way, where the derivative user is well-funded and lawyered-up and the under-resourced rights-holder can’t afford to have the fight even though they might well be in the right). But it seems at least possible that any crisper/cleaner doctrine (where the boundary of what the rights-holder can forbid was so clear that no one would be chilled/intimidated by an over-the-top cease and desist letter) would end up being one that made a materially narrower scope of stuff qualify as fair use and thus non-infringing. Fuzzy rules are perhaps sometimes the worst legal regime possible except for the practically available alternatives.
Quite aside from which is the right legal rule, I also think that there’s a positive incentive effect to publicizing cases like this in which estates of notable persons either appear in a light of being unreasonably prickly themselves, or heedlessly sell rights to those who squeeze them with little regard for what the notable person stood for in life. The better known these cases are, the more likely it is that notable persons and their near families will think through how they might want to plan their bequests so that their estates will rest in the hands of those willing to cooperate with scholars, encourage derivative works, etc. King himself of course was cut down too young for us to expect this, but most major figures who leave a cultural legacy have more chance to plan, or their widows/widowers do.
- Long before North Korea “Interview” episode, Hollywood was caving repeatedly to power-wielders [Ron Maxwell, Deadline] Relevant: “A Tyranny of Silence,” new book by Danish-Muhammad-cartoons editor Flemming Rose published by Cato Institute [Kat Murti, earlier on the Danish cartoons, related Liberty and Law]
- Score 1 for First Amendment, zero for Prof. Banzhaf as FCC rejects “Redskins” broadcast license attack [Volokh, earlier including the prof’s comment on that post]
- Court dismisses orthopedist’s defamation suit against legal blogger Eric Turkewitz [his blog]
- “Hate speech” notions reach the Right? Author claims “justice” would mean incitement “charges” vs. liberal talkers [Ira Straus, National Review]
- Wisconsin prosecutors said to have eyed using John Doe law to aim warrants, subpoenas at media figures Sean Hannity, Charlie Sykes [Watchdog] More: George Leef on California vs. Americans for Prosperity;
- “British journalist sentenced for questioning death toll in Bangladeshi independence war” [Guardian] Pakistan sentences Bollywood actress Veena Malik to 26 years for acting in supposedly blasphemous TV wedding scene [The Independent] Erdogan regime in Turkey rounds up opposition media figures [Washington Post editorial]
- “Is it a crime to say things that make someone ‘lack self-confidence in her relations with the opposite sex and about her body-build’?” [Volokh; Iowa Supreme Court, affirmed on other grounds]
Also on the Sony affair, from @conor64: “Failure to release The Interview is less a sign of corporate cowardice than overbroad liability laws that would let people sue after attack.”
Who’d have guessed that movie studios would entrust populist Mississippi Attorney General and longtime Overlawyered favorite Jim Hood with a key role in pushing their rights as copyright owners against online services and search engines? Not I [Eli Lehrer, Weekly Standard] More from Mike Masnick at TechDirt: “it appears the MPAA and the major Hollywood studios directly funded various state Attorneys General in their efforts to attack and shame Google.” Related: The Verge.
Sequel: Google goes to court to block a sweeping subpoena from Hood [ArsTechnica, HuffPost (Hood: “salacious Hollywood tale”)] “One of Hood’s letters critical of Google, published earlier this week by The New York Times, was ‘largely written by lawyers for the movie industry,’ the company points out.” More: Hood vs. Google, from our archives.
….it first had to outswim the Minow [Peter Suderman, Reason]
“Because a blind or visually impaired individual cannot discern the visual cues displayed on the kiosk controls, they cannot independently browse, select and pay for DVDs at kiosks, and instead must rely upon sighted companions or strangers to assist them,” states the complaint, filed in a Pittsburgh federal court by Robert Johoda. “Further, the blind or visually impaired consumer must divulge personal information, including their zip codes, to sighted companions or strangers in order to complete a transaction at the kiosks.” [Legal NewsLine]
“…a list of motifs Tanikumi claims were taken from her book like: two sisters, open doors or gates, and a moon setting….A Disney spokeswoman responded to her claim, saying, ‘This is beyond ridiculous, she needs to let it go.'” [WAFF]
If done by anyone other than unionists, this would by now be a trending national story:
The Teamsters picketers were already mad. By the time Top Chef host Padma Lakshmi’s car pulled up to the Steel & Rye restaurant in the picturesque New England town of Milton just outside Boston, one of them ran up to her car and screamed, “We’re gonna bash that pretty face in, you f*cking wh*re!”
“She was scared,” said a Top Chef crewmember who witnessed the incident.
Bravo had incurred the wrath of Charlestown-based Teamsters Local 25 by using its own production assistants as drivers, reports the Boston Herald:
The picketers lobbed sexist, racist and homophobic slurs at the rest of the cast and crew for most of the day, the website reported, and when production wrapped, the “Top Chef” crew found that tires were slashed on 14 of their cars. Milton police confirmed that the union members were “threatening, heckling and harassing” but said no arrests were made.
The Herald quotes a spokeswoman for Local 25, Melissa Hurley, sounding completely unapologetic: “As far as we’re concerned, nothing happened.” Or to put it differently: Teamsters Will Be Teamsters.
More, including the violent history that makes this incident anything but “isolated,” from the Boston Globe. I’ve posted on the curious exemption of unions from the law of harassment, stalking, hostile environment, intimidation, etc. here, here (more on Philadelphia Quaker meetinghouse arson), and in various other posts, as well as in my book The Excuse Factory.